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Февраль 2011



Chief editor’s column


Interview of the issue

I.V. Reshetnikova With introduction of electronic justice, legal proceedings will pass to an absolutely new level of development
Questions of the chief editor of the magazine “ZAKON” Yan Piskunov are answered by the chairman of the Federal Arbitration Court for the Ural District Irina Valentinovna RESHETNIKOVA
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The Event. Comments of the Experts

Who will be responsible for a one-day company?
Recently the President of Russia has raised the question on the necessity to actualize counteracting companies created not to conduct business but to exercise illegal practices. In the opinion of the head of the state, it is sensible to supplement the Criminal Code of the Russian Federation with the corpus delicti providing for criminal liability for creation of a one-day firm. Are such measures efficient? How counteracting with one-day companies should be exercised from your point of view?
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News of the community


S.Yu. Chucha “Save for the mediator, nobody could predict the outcome of the dispute”
Questions of the editor of the magazine “ZAKON” Alexey Belousov are answered by the chairman of the Arbitration Court for the Omsk Region Sergey Yuryevich CHUCHA.
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Topic of the issue

I.S. Solovyev “Electronic justice is by no means a reform”
Questions of the editor’s office of the magazine “ZAKON” are answered by the head of the Informatization and Communications Department of the Supreme Arbitration Court Igor Sergeevich SOLOVYEV
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V.V. Yarkov Electronic justice and principles of civil proceedings
The article touches upon certain legal implications of use of information technologies in arbitration proceedings in the light of their influence on the traditional principles of legal proceedings such as equal rights of the parties, optionality, impartiality of legal proceedings. The author justifies advantages of use of the notariate for legal proceedings under new conditions.
Keywords: electronic justice, reform of the arbitration proceedings, principles of the legal proceedings, optionality, equal rights of the parties
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E.V. Kudryavtseva Implementation of information technologies into legal proceedings
Recently interest in literature and court practice has arisen to problems of electronic justice, possibilities of Internet application for submission of documents to court. In the foreign practice information technologies have been successfully implemented in civil proceedings throughout the last decade already. The article touches upon matters of use of information technologies in civil proceedings of the USA, England, Russia and other countries.
Keywords: electronic justice, information technologies in civil proceedings, electronic submission of documents, video and telephone conferences
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K.L. Branovitski Experience of electronic justice in FRG: achievements and problems
The article analyzes the experience of Germany in the area of electronic justice. The author considers generally key models of electronic justice in civil proceedings of Germany depending on types of legal proceedings as well as electronic document flow systems existing both within a court and between the court and parties to the proceedings. Taking into account the experience of FRG, probable approaches to implementation and use of up-to-date systems of electronic justice in civil proceedings of Russia are proposed.
Keywords: electronic justice, civil proceedings in Germany, electronic document flow system, automated writ proceedings, electronic writ proceedings, trade register
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V.V. Petrova Elements of electronic justice in the Code of Arbitration Procedure of the Russian Federation
Since the 1st of November 2010 Federal Law dated 27.07.2010 No. 228-FZ “On introduction of amendments to the Code of Arbitration Procedure of the Russian Federation” has come into force and commenced to apply by arbitration courts. Since the date of adoption and introduction of this law into force, the full-scale implementation of the electronic justice system in arbitration courts started. The author analyzes some novelties and tries to suppose what will be application of the same.
Keywords: electronic justice, submission of a claim via Internet, audio minutes of the legal proceedings
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S.Yu. Chucha, I.V. Sorokina, E.A. Kulagina Electronic justice as a factor of minimization of conflicts in the Russian society
In this article the authors consider, using arbitration practice in the Omsk region as an example, influence of certain elements of the electronic justice on the condition and development of institutes of arbitration proceedings in Russia.
Keywords: electronic justice, audio minutes of a legal session, video and conference communications, electronic document flow, index of arbitration cases
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E.V. Zaichenko To know about a legal session – the right or the obligation of a party to legal proceedings?
The article describes key changes in the legislative approach to determination of proper notification of parties to arbitration proceedings on legal sessions and influence thereof on the content of rights of the parties involved in proceedings, receipt of information about legal proceedings.
Keywords: arbitration proceedings, electronic justice, summon, proper notification
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N.N. Kuhmazova Practice of implementation of electronic document flow into the Russian legal system
The article describes the process of implementation of electronic document flow in Russian courts and briefly overviews already existing electronic systems for automation of legal proceedings.
Keywords: electronic document flow in the legal system, automation of legal proceedings
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Theory and practice

A.R. Sultanov Restoration of infringed rights and freedoms of a human and problems of legal succession of state authorities through the prism of European standards
The article touches upon the problem of restoration of infringed rights and freedoms of a human at winding-up, liquidation, reorganization of state authorities. The author supposes that application of provisions of the Civil Code on legal succession in this case is not permissible and that non-fulfillment of awards in connection with reorganization, liquidation, delegation of functions of state authorities breaches both the Constitution of the Russian Federation and the European Convention on Protection of Human Rights.
Keywords: functional succession, restoration of infringed rights, state authority, European Court of Human Rights
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S.S. Bondarenko Claim on prevention of damage
In the opinion of the author of the article, prevention of damage is to take place outside the framework of the obligation. The claim on prevention of damage was chosen as the subject-matter of study. A significant volume of court practice was analyzed. Suggestions for improvement of legislation were made.
Keywords: prevention of damage, obligation, nugatory action
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E.E. Shevchenko Pre-contractual relations in civil law and arbitration court practice
Steps of entrepreneurs taken at the pre-contractual stage become important under the conditions of the market economy. The author considers the matters of legal importance of so-called memoranda of understanding, framework and preliminary agreements, qualification thereof, separation from property contracts as well as other problems associated with such agreements.
Keywords: framework agreement, memorandum of understanding, preliminary agreement, negotiations between counteragents, pre-contractual liability
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M.I. Malinovsky Bonds in the system of today’s civil law
This work gives arguments in favor of more careful study of the capital market as a whole and the market of debt instruments in particular, describes bonds as the central link of the public market of debt capital and doubling of the legal nature thereof. Findings are made that development of this institute requires wider application of general approaches of the contractual law to regulation of the legal status of bonds.
Keywords: capital market, securities, bonds
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N.G. Oganesyan Arbitration reservations: why consolidation is needed?
The author considers advantages of inclusion of the consolidated (related) arbitration reservation into contracts according whereto a party to the contract may consolidate examination of several cases arising from various contracts but relating to the same transaction within common proceedings.
Keywords: arbitration, consolidated arbitration reservations, arbitration agreement, arbitration reservation, consolidation of proceedings, combination of proceedings
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D.A. Bulgakov Execution of the resolutive part of an arbitration award as a special criterion of its quality
Activities of arbitration courts associated with justice has a practical meaning only in case of real and full restoration of the infringed subjective right through guaranteed fulfillment of the award issued by the arbitration court. Taking this into account, the article points out the necessity to improve the methods of execution of the resolutive part of the award and to improve the culture of its statement, since clear, complete and comprehensible execution of the resolutive part is an indicator of quality of the award and a condition of achievement of the objective of justice.
Keywords: resolutive part of the award, practicability, reasonable term, European Court of Human Rights
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V.S. Anokhin Protection of civil rights in case of liquidation of business entities
Withdrawal of legal entities and natural persons from business is a popular practice. At that, protection of civil rights becomes a problem, in particular, from the procedural point of view. The article analyzes legislation and practice of application of law at liquidation of legal entities and death of individual entrepreneurs.
Keywords: liquidation, termination of business operation, disputes at liquidation of a party to the transaction
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A.I. Schukin Recognition of a person as missing: the matter of international jurisdiction in Russian law and court practice
The article raises the question on relation of the national legal and international regulation of jurisdiction of cases for recognition of a person missing. It analyzes in detail norms of international treaties of Russia on jurisdiction of such cases as well as the practice of application thereof. The author, in particular, expresses a doubt about the necessity of stipulation in the Code of Civil Procedure of the Russian Federation of the exclusive competence of Russian courts on cases for recognition of a person as missing and suggests that it should be replaced with the similar one. From his point of view, this will correspond to interests of cooperation in the area of legal assistance and facilitate efficient legal protection of natural persons.
Keywords: legal protection, special proceedings, recognition of a person as missing, international jurisdiction, exclusive competence
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Foreign experience

I.R. Medvedev Interrogatory in civil proceedings of the USA: requirements to content
The article touches upon prescriptions of procedural laws of the USA regulating the content of matters included in such a means of evidence as written interrogation of the parties. General requirements to matters are analyzed gradually, the discussion on importance of interrogation is covered with arguments and opinions (both of the actual and legal nature).
Keywords: legal proceedings, US law, interrogatory, evidence, discovery, arguments, opinions
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