Magazine content за Декабрь 2010 г.
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Декабрь 2010




O.M. Oleynik Prejudice is a matter of mutual recognition of judicial proceedings types
The interview with Oksana Mikhaylovna Oleynik, the head of the department of the entrepreneurial law of the State University - Higher School of Economics, doctor of legal science, professor, is dedicated to not simple matters of balance of the penal and civil litigation and to the role of the prejudice in ensuring unanimity of public justice in Russia.
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L.V. Golovko Applicability of the prejudice institution in procedural law
The article analyses procedural problem, causing today a bitter dispute in the theory and a great deal of complications in judicial practice: What is the prejudicial significance of legal judgements in penal and civil cases? On the basis of theoretical and comparative and legal analysis the author shows that this problem to a considerable extent is contrived one and is attributed to oblivion of a range of classic procedural axioms establishung distinct limits of prejudice institution application.
Keywords: prejudice, legal judgement, penal litigation, civil litigation
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Yu. A. Tarasenko To the matter of changing prejudice in arbitration proceedings
It follows from explanations of the Higher Arbitration Court of RF that in arbitration proceedings only ascertained facts have quality of prjudice but not their legal treatment given by the court. Such an approach results in contraventions: so, provided that the court found that the agreemenet is effective (concluded), than at hering of other case the court may find the same agreement as non-effective or accordingly as non-concluded. The author suggests a rule of thumb to resolve this problem.
Keywords: prejudice, arbitration proceedings, agreement
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A.M. Bezrukov On objective limits of prejudice in arbitration proceedings
The article is dedicated to objective limits of prejudicial connection of judicial acts in arbitration proceedings. In spite of constant use of this legal institution in law enforcement activity of arbitration courts, till now there is no produced uniform approach to wide range of matters. One of debateable matters is the issue about what can be exactly the subject of prejudice: facts, legal relationship or even legal treatment given by the court in statement of reasons of the judgement. In this article the author attempted to give an answer to this matter, analysing both doctrinal sources and judicial and arbitration practice.
Keywords: arbitration proceedings, prejudicial connection, objective limits of the prejudice
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A.Z. Makhmudov Significance of the prejudice in arbitration proceedings
In the article the case in hand is influence of prejudice on participants of litigation, including the court, in this case in the context of arbitration proceedings. The example of unsuccessful use of prejudice institution by several judicial instances is given. Probable consequences of such an use of prejudice for persons in dispute are under investigation, as well as legal means (reasons) to prevent and eliminate an unsuccesseful application of the prejudice proposed (in the event when it comes into antagonism with facts of a case).
Keywords: prejudice, conflict, protection of rights
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M.I. Kukhta, I.G. Shengelya Prejudicial facts in judicial practice of the Moscow Regional Arbitration Court
The authors of this article analysed general tendencies of hearing by the Moscow Regional Arbitration Court in the domain of cases taking into account prejudicial facts, by reference to specific character of different categories of litigationgs.
Keywords: arbitration proceedings, evidences, prejudicial facts
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E.V. Chernikova On significance of development of prejudicialness of judicial acts in arbitration proceedings
The article emphasizes that neither prejudice of the judicial act nor precedent shall not be construed extensively at application of this legal institution. The purpose of both procedural categories is in maintenance of judicial practice uniformity and stability of economic relations legal regulation. To guarantee a fair application of acting in the legal theory prejudicial regulations it is expedient to develop a mechanics and to enshrine it in law.
Keywords: Prejudice, precedent, fact in proof
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D.V. Lorents Acquisitive prescription: challenges of the modern age
The article analyses the decree of Plenary Assemblies of the Supreme Court of RF and the Higher Arbitration Court of RF as of 29.04.2010 No 10/22 “On several matters, arising in judicial practice in resolution of disputes related to property rights protection and other corporeal rights”, as well as the Concept of Development of the Corporeal Rights Law relative to debateable moments of acquisitive prescription application as one of the reasons of property rights creation. The author examines problems of interpretation of such conditions of usucapion as a good faith, transparency and continuity of ownership, possession of estate as his own, parity of limitation of actions and acquisitive prescription, and as a result proposes several options of civil law improvement.
Keywords: acquisitive prescription (usucapion), good faith, limitation of actions, vindication, ownership
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S.V. Nazarchuk Ecology and Oil and Gas Business Several matters of liabilities
The article examines legislation and denotes several problems of legal regulation in the area of environment at production of oil and gas.
Keywords: ecology, environment, safety, liabilities, oil, gas
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A.A. Fisher Right in administration of justice within a reasonable time period in the context of judgements of the European Court of Human Rights
The article is dedicated to a problem of observance of time in administration of justice, to significance of judgements of the European Court of Human Rights, in reference to non-enforcement or improper enforcement of legal judgements. A special atention is paid to the adopted Federal Law as of 30.04.2010 No 68-FZ "On compensation for violation of right to legal proceedings within a reasonable time period or right to enforcement of a legal act within a reasonable time", as well to the questions of the executor of law that arise during realization of the law.
Keywords: legal proceedings, compensation for nonobservance of time period for hearing of cases, the European Court of Human Rights
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V.P. Bykov, N.S. Yudina, V.V. Ulitina Protection of exclusive rights to trade names of legal entities
The article covers the matters of exclusive rights to trade names of legal entities, illustrating the provision of the civil legislation by specific examples from judicial arbitration practice. According to the authors of the article prohibition against use of trade name of other persons and recovery of civil damages are most common methods of violated rights protection in Russia.
Keywords: trade name of legal entity, protection of exclusive rights to trade names, recovery of civil damages for illegal use of trade name of other persons, conflict of rights to trade name and trademark
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T.I. Otcheskaya, D.V. Vershinina Matters of realization of constitutional rights to judicial protection of economic rights of economic entities in Russian Federation.
This article examines the problem of realization of constutional right to judicial protection in the sector of economics. Analizing defects of the effective Arbitration Procedure Code of RF, as well as their practical impact the authors put forward a suggestion on adjustment of several provisions of the arbitration procedure legislation for the purpose of creation of efficient procedural mechanism of judicial remedy of economic entities.
Keywords: judicial power, economical justice, judicial remedy, procedural mechanism of judicial remedy
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A.G. Balykhin Essence and appraisal of local government in the theory and practice of national and exterior municipal law
The article critically comprehends more than centenary natinal experience in development of local government,which depends in many ways on general regularities of development of the state and the society on the whole. It is described the essence and it is given appraisal of the modern state of local government in Russia from a position of government of a state at all levels of public authority realization.
Keywords: municipal law, local government, system of people power
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Yu.L. Smirnikova Admissibility to use civil constructions in fiscal and legal regulation
The article examines the matter of admissibility of intersectoral use of legal constructions and brings to light legal methods of manifestation of civil constructioins in the fiscal law.
Keywords: Legal constructions, fiscal law
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