Журнал ЗАКОН

Unauthorized construction has always been an urgent and very painful subject for our turnover. Despite the stringent provisions in current civil legislation, buildings are still erected without proper permits, on land plots not intended for this purpose, or with significant deviations from technical standards and regulations. It is a small loss, when it comes to buildings used for auxiliary purposes... It is much worse, if these are buildings, the apartments of which are sold to unsuspecting citizens. In this latter case, arguments come up about obstacles to business construction coming from the bureaucracy, about the severity of the housing problem and the need to protect the rights of innocent residents. Ultimately, the strict rules of the Civil Code shall be interpreted in a manner well known to entrepreneurial developers - it is forbidden to build against the law, but if you really want to, it is possible. Such a situation undermines respect for the law (one thing is written, but a different thing is applied), this discredits the state apparatus (who needs to bother with the officials) and it definitely does not contribute to the stability of turnover (the ownership of a construction without a permit, may be accepted or may not be). Against this background, the interpretation given by the Supreme Court of Arbitration in paragraph 9 of the Review of recently adopted practice on some issues by arbitration courts as regards Art. 222 of the Civil Code of the Russian Federation, is very important. In accordance with this paragraph, ownership of the unauthorized building, erected without the necessary permits, cannot be recognized for the person who created the building and had the opportunity to obtain these permits, but has not taken measures to obtain them. Such an approach is welcome - the actions of the courts should not substitute for administrative procedures. The fight against corruption cannot and should not be substituted by the rejection of dialogue with officials. The task is to bring this communication within the framework outlined by the law. In this latter case, the housing problem has a chance of becoming resolved. It is hoped that the approaches of the Supreme Administrative Courts (SAC) on this subject will find understanding in the courts of general jurisdiction.

The chief editor of "The Law", Jan Piskunov interviewed the Judge and Chairman of the Supreme Arbitration Court of Russia, Alexandra Alexandrovna Makovskaya

From time to time representatives of major companies ask that the rights of shareholders (primarily owners of small blocks of shares) be limited as to the information they receive, since such a right, in their opinion, can be used to harm the corporation itself. Are such fears justified?

This article discusses the constitutional problems of interpretation of the signs of the generic composition of theft, listed in the footnote to Art. 158 of the Criminal Code of the RF. It is emphasized that despite the differences in the positions of scholars and practitioners regarding the content of these signs, the Constitutional Court soundly rejects complaints, in which these norms are required to be established as "unconstitutionally vague".

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Keywords: signs of theft, Constitutional Court, the interpretation of Law

This article analyzes the ban of "indirect expropriation" as set forth in the intergovernmental agreement on encouragement and protection of investment. This provision gives the opportunity for investors to claim compensation for damage caused by any actions, which significantly and for a long period restrict the rights of the owner. Criteria for delimitation of legal actions against indirect expropriation have been proposed.

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Keywords: expropriation, protection of foreign investment, investment arbitration

Contemporary legal regulation of property rights protection is carried out under the same rules, irrespective of the kind of item being dealt with. At the same time, the specifics of the legal regime of property raises the question of the possibility and adequacy of vindication, for the protection of rights in rem in immovable property. The article substantiates the independent nature of the vindication of the claim, ensuring the restoration of ownership of movable items, as well as real estate, regardless of any other requirements of the plaintiff.

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Keywords: vindication, property law, real estate

The author analyzes the concepts of title and legal possession of Russian civil law, from the perspective of the terminology that was established during the Soviet era, as well as the reasons why these concepts are distorted in the science of civil law. This article contains criticism, suggestions and a brief comment to the provisions of the draft of the second section of the Civil Code.

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Keywords: ownership, owners' defense, vindication, property law, acquisitive prescription

This article argues the view that negatory lawsuit is directed solely at protecting the rights of real estate. On the basis of criticism on the possibility of civil possession of real estate by means of registry, a conclusion is drawn that it is possible to protect property both by a negatory and vindicatory claim. The author offers options for contesting the registered rights to real estate depending on the circumstances of the case. Detailed arguments about the nonidentity of the claim for recognition of property rights and negatory claim are given.

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Keywords: real estate, negatory claim, ownership, contesting the registered rights to real estate, restitution, vindicatory claim, an action for recognition of property rights, limitation of action

This article examines theoretical and applied aspects of administrative and judicial orders to levy taxes, fees, fines and penalties, the ratio of the constitutional obligation of each person to pay taxes and constitutional guarantees for the protection of property rights, it also examines the legal position of the Russian Constitutional Court on this subject, as well offers conclusions and suggestions for the improvement of relevant legislation.

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Keywords: constitutional foundations of fiscal relations, administrative (undisputed) order of collection, court procedure for collecting tax arrears, tax legal relationship, protection of property rights in the legal tax relationship

This article addresses issues of ownership and possessory security in the Russian civil law. Particular attention is paid to the problem of determining the legal nature of ownership, as well as to the specifics of the operation of the possessory protection in the current civil law, taking into account the proposals made in the Concept of property law.

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Keywords: ownership, owner’s defense, legal ownership, civil law

The article offers a list of grounds for termination of secured obligations and gives a brief description of each. Among these reasons, the author singles out surrogates of performance, which lead to the satisfaction of the creditor and are equal to the proper performance of the obligation. The author defends the thesis that neither the expiration of the statute of limitations, nor the loss of the instrument, can lead to the termination of the rights to the secured obligation.

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Keywords: termination of the obligation, secured obligation, surrogate of performance

The author justifies the conclusion that there is a need to consolidate the law of presumption of the head’s guilt in causing harm to society, as well as answers the question of the relation between the concept of guilt of the head with such categories as honesty and reasonableness.

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Keywords: Head of legal entity, management responsibility, good faith in corporate law

This article analyzes the individual property rights of minors, set forth by the standards of family and civil law, and identifies the main problems of property rights protection of children.

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Keywords: minors, property rights, protection of minors’ rights,

The practice of arbitration courts in the Bankruptcy Law has identified a number of contentious issues relating to the conditions and reasons for bankruptcy acknowledgment of legal entities in the process of liquidation, the possibility of applying to them a common or a simplified procedure. Lack of uniformity of jurisprudence on these matters violates the principle of legal certainty.

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Keywords: bankruptcy, debtor in liquidation

This article proves that the rule of Art. 393 of the Labor Code of the RF, ignoring the relationship of civil procedures and labor relations leads to the violation of an equitable balance between the parties (the plaintiff-employee and defendant-employer) in a civil proceeding.

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Keywords: legal costs, the subject of judicial activity, the right to judicial protection, labor disputes

The legal categories "way to protect civil rights" and "cause of action" have a different effect on the tasks of civil proceedings. The author concludes that the plaintiff's erroneous reference to a law, which cannot be grounds for satisfaction of its requirements with a properly chosen method of protection of civil rights, by itself cannot limit judicial activities to achieve goals and objectives of civil justice, neither can it prevent the final resolution on the essentials of the civil dispute.

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Keywords: method of protection, cause of action, evidence, problem of proceedings

This article is devoted to the judicial arbitration practice on adjudication of the resolution to invalidate the transactions of the debtor (bankrupt) on the execution of monetary obligation in the case of Insolvency (bankruptcy), as well as it analyzes the provisions of paragraph 6 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation from April 30, 2009 No. 32.

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Keywords: bankruptcy, transaction of the debtor, execution of monetary obligations, consequences of invalidity

The author examines the international legal regulation of issues related to the trial in absentia in criminal cases, as well as analyzes the principal legal position of international bodies on this issue. Considerable attention is also paid to theoretical and practical aspects of trials in absentia in Russia. The author concludes that the trial in absentia is an exception to the principles of adversarial nature of judicial process, the immediacy of research evidence and confrontation of the trial; however, it is permitted by international treaties and national regulations.

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Keywords: conditions for trials in absentia in criminal cases, accused person’s rights, principles of criminal proceeding, practice of international bodies

This article deals with the general provisions in the legal regulation of one of the means of evidence disclosure in civil proceedings in USA – written questioning of both sides (Interrogatories). The author consistently analyzes the principles and the participants of the procedure, the place of interrogatories among other procedural tools, its advantages and disadvantages.

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Keywords: litigation, U.S. Law, interrogatories, evidence, disclosure

The legal status of the sports club is not clearly defined in the legislation of the Republic of Belarus. This raises many issues of legal and organizational character that require solution.

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Keywords: professional sports, paralympic sports, sports club status, the funding of physical culture and sports