ARCHIVE FOR 2019 RUSSIAN
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Ноябрь 2019
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
Yu.P. Orlovskiy Is There a Need for Labour Law Reform? This article considers main additions and amendments to the Labour
Code of the Russian Federation following its adoption, and analyses
general aspects of labour legislation such as the notion of labour
legislation, sources and principles of legal regulation of labour relations,
legal institutions, remote workers and small business employees.
Keywords:
Labour Code, basic principles, sources of labour law, employment contract, remote workers, small business
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A.M. Kurennoy Effective Representation of Employees’ Interests in the Field of Hired Labour This article identifies certain issues the state, parties to labour relations
and their representatives face today, which need to be resolved in
order to ensure effective social policies. The author gives his view
on the question of whether the employer should take into account
the opinion of another trade union (a separate entity created as part of
another organisation) his employee belongs to, in all matters requiring
an opinion of the trade union’s elected body.
Keywords:
social state, social partnership, labour legislation, representatives of workers, trade unions, employers and their representatives
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I.Ya. Belitskaya Remote Work in Russia: Looking for a Solution This article considers certain aspects of Russian regulation of one of
the types of atypical employment — remote labour, as well as factors
hampering its wide dissemination and main difficulties encountered
in concluding employment contracts for remote work. The analysis
of possible improvements in Russian labour legislation takes into
account, among other things, the European regulatory framework for
telework. Electronic document circulation in labour relations, recording
of working hours, compensation for used equipment and a number of
others related to the performance of remote work by the employee are
touched upon.
Keywords:
employment contract, atypical form of employment, remote work, remote employees, place of work, electronic signature
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Ye.S. Batusova Fixed-Term Contract as a Form of Atypical Employment in the Eastern Europe A fixed-term contract, being a form of atypical employment, due to the presence
of an objective reason for its termination — a certain date or event — is attractive
for employers. It allows the employer to reduce termination costs and to promptly
respond to changes in the labour market. Russian employers tend to unreasonably
overuse a fixed-term employment contract thereby violating employees’ rights.
Russian labour law scholars point out shortcomings in the regulation of this type
of contract and recognise the need for its reform. It is advisable to use the positive
experience of respective regulatory practices from Eastern Europe (Bulgaria,
Hungary, Poland, Romania, Slovakia, Czech Republic, Moldova, and Belarus)
in order to formulate proposals for the Russian Federation. These countries
have a common political and legal history with Russia within the framework of
the Council for Mutual Economic Assistance, in the Soviet Union. They can be
divided into two groups: EU countries and non-EU countries. The fixed-term
employment contract regulatory mechanism, as established by Council Directive
1999/70/EC of June 28, 1999, is analysed. The Directive was the basis for general
patterns and trends in the legal regulation of fixed-term employment contracts in
Eastern European member countries. Some components of this mechanism are
used quite successfully in the Republic of Moldova, although it is not part of the EU.
Therefore, such legal experience is relevant to the countries of the Commonwealth
of Independent States. The article offers recommendations on how to optimise
the fixed-term employment contract regulation in Russia in order to ensure
a balance of interests between employees, employers. These recommendations
are based on labour legislation of the selected countries.
Keywords:
fixed-term employment contract, atypical employment, fixed-term employment contract conditions
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O.I. Mitrofanova Some Issues for Professional Standards Application in the Digital Economy This article deals with the scope of professional standards application.
The author discusses the functionality of “occupational standard”
for the purposes of the digital economy and analyses the functional
suitability of professional standards, and examines the features and
problems relating to their application in organisations, institutions and
enterprises.
Keywords:
occupational standards, employee qualification, skill level, salary, profession, job position, labour function
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D.V. Chernyaeva Telemedicine in Employment Relations The paper analyses regulatory frameworks for telemedicine in
employment relations in Russia and abroad in a comparative context.
The author considers the topic from two viewpoints: firstly, as a service
employer and employee use to simplify statutory procedures that
relate to employee health, and secondly, as work duties healthcare
professionals perform in the course of their employment relations
bearing specific liabilities and sustaining specific consequences. In
conclusion the author formulates recommendations for amendments
to national legislation.
Keywords:
telemedicine, telehealth, employment relations, employment law, labour law
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G.T. Malashenko Non-Compete Corporate Risk Management Pacts: Practices in Other Jurisdictions This article examines the legality of non-compete pacts in Russian
labour law and analyses different practices of applying such provisions
along with similar restrictive covenants in other jurisdictions.
The author concludes that this institution, in one form or another, is
present in modern legal systems and, unlike its function in Russia,
provides an effective mechanism for protecting the legitimate interests
of right holders against competitors that can hire a leading specialist
after dismissal. However, this instrument requires flexible regulation,
and its adjustment is usually done through judicial interpretation based
on the principle of reasonableness.
Keywords:
non-compete agreement, restrictive covenants, principle of reasonableness, common law, equity law, jurisprudence constante
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T.Yu. Korshunova Some Issues Surrounding Regulation of Organisation Head’s Labour This article is devoted to urgent problems of the regulation of
organisation head’s labour and the relationship between labour and
civil law. The author reveals the features of the legal status of the sole
executive body of a legal entity from the perspective of both labour
legislation and corporate standards. The author dwells on the problems
of relations between a legal entity and its founder, analyses issues with
the legal status of two or more sole bodies of a legal entity, addresses
termination of employment contract at the request of the head of
a legal entity, offers suggestions for improving the current legislation.
Keywords:
head, sole executive body, legal entity, labour contract, labour freedom, remuneration of labour, conclusion and termination of employment contract
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S.L. Budylin Rough Judgment The Moscow Case as a continuation of the Moscow protests (criminal cases against demonstrators, administrative sanctions, civil lawsuits against the organisers of the rallies) — Svetlana Prokopieva’s case — The Rostov case — Judicial reform — Reappointment of Chief Justice — Tax pledge status — Struggle for taxpayers — Execution by Russia of ECHR problematic judgment — UK Supreme Court Decision on the conflict between the Prime Minister and the Parliament — Another attempt to impeach the US President — Aeroflot lawyers’ case — Censorship (not only Internet) — Rough judgment
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Discussion Board
G.V. Tsepov Civil Principles of a CEO’s Activities The issue of Civil and Labour Law correlation in regulation of the activities
of a legal entity’s CEO remains unresolved both in theory and
in law-enforcement. Conflicts are driven by the rudiments of the Soviet
period theories — still existing in public legal consciousness —
which proclaimed a legal entity a real subject, but in fact, turned it
into a scholastic structure not working in practice. On the contrary,
treating a legal entity as a tie point of rights and obligations, legal
reality, while treating a CEO as its special representative — makes
it possible to draw a clear distinction between civil and labour
relations. The powers of a CEO are given and terminated by civil-law
decisions of a legal entity. Due to fiduciary nature of relations, taking
a decision to terminate the powers makes it impossible for a CEO
to continue performing their functional responsibilities. Nevertheless,
the termination decision in itself cannot exclude giving an ex-CEO
social guarantees and compensations as specified by Law and labour
contract.
Keywords:
CEO, body, representative, powers
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Theory and practice
P.A. Skoblikov Highest Rank in Criminal Hierarchy: A Follow-Up to Conversation on Interpretation of Article 210.1 of the Criminal Code of the Russian Federation In the context of the principles of criminal law, this article analyses
the recent provisions that stipulate liability for being the highest in
rank in the criminal hierarchy. The author compares different academic
positions acknowledging either the possibility or inadmissibility
of liability for criminal status, and concludes that the liability under
Art. 210.1 of the Criminal Code is linked to the committal of certain
socially dangerous actions, not the possession of criminal status.
Criminal methods are disclosed. It is pointed out that the provisions
in question demonstrate the peculiarities of modern criminal policy:
its spontaneity, unpredictability and isolation from legal science.
The forecast of law enforcement practice under Art. 210.1 is provided
and substantiated.
Keywords:
modern criminal policy, organised crime, highest rank in criminal hierarchy, organised group, criminal community, criminal organisation, criminal formation, criminal authority, socially dangerous action
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N.V. Filipenko, Ye.M. Kurochkina Individual Heating in Apartment Buildings in Russia and RF Constitutional Court Decision No. 46-P of 20 December 2018 This article addresses the problem of calculating heating costs in
apartment buildings and analyses the possibility of switching heating
from the centralised scheme to an individual one. It is demonstrated
that current legislation formally does not prohibit such a change but
practically makes it unfeasible. This was possible under the legislation
in effect before 1 January 2011 in compliance with the requirements
which are analysed in this article. The Russian Federation Constitutional
Court Decision No. 46-P of 20 December 2018 provides that for any
apartments switching to an individual heating scheme heating fees
can not be levied as a total of heating costs and common services in
the apartment building.
Keywords:
utilities, individual heating, heating fee, heat supply, apartment building
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V.N. Babchenko, M.Yu. Kuznetsov Executive Rule-Making and Judicial Review in Russia: Practical Aspects This article looks at the jurisprudence of the Russian Supreme Court
and the Russian Intellectual Property Court in the matters involving
challenges against federal executive regulations and clarifications of
regulatory effect. The authors describe the main guiding criteria for
courts to declare departmental regulations inoperative. They also dwell
on the inadmissibility of the procedure established by Art. 217.1 of
the Russian Federation Code of Administrative Procedure to challenge
departmental clarifications formally meeting the criteria which are
typical of departmental regulations.
Keywords:
departmental regulations, federal executive regulations, declaring regulations inoperative, declaring legal provisions null and void, judicial review
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V.V. Kan Control of Mass Media in the Digital Economy This article brings a discussion on the revision of the authorisation
system for mass media. Based on a review of the recent legislative
changes in the field of mass communication, it is suggested to adopt
a unified notification register procedure for both traditional and new
media. The proposed mechanism would appear to be a compromise
between the state’s necessity to control the mass information and
the request to abolish excessive administrative barriers in the digital
economy.
Keywords:
mass media, mass communication, regulation of media, regulatory guillotine
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