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ARCHIVE FOR 2011    RUSSIAN

Апрель 2011

CONTENT

 

Chief editor’s column

 

Interview of the issue

D.V. Pleshkov Electronic distribution of cases – an efficient echanism in the work of the court
Questions of the chief editor of the magazine “LAW” Yan Piskunov are answered by the chairman of the Arbitration Court of the Moscow Region, Dmitry Vadimovich PLESHKOV
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The Event. Comments of the Experts

Amount of the authorized capital stock and destiny of the small business in Russia
Not all the suggestions of developers of the Concept for improvement of laws on legal entities were unanimously supported by specialists from the Ministry of Economic Development. The key polemics concerned the suggestion on increase of the authorized capital stock of LLCs and JSCs. In particular, suspicions arose that this novelty will affect development of small business in Russia. Is that so? We asked this question to the direct participants of the polemics as well as to our permanent experts.

 

Topic of the issue

Yu.O. Verbitskaya The system of non-commercial organizations in the draft CC of RF
The article touches upon development of laws on non-commercial organizations in the draft of the Civil Code of the RF. The author assesses scientifically the new system of non-commercial organizations based upon division of legal entities into corporations and unitary organizations
Keywords: non-commercial organizations, system of legal entities, draft CC
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N.G. Lopatenkova Quasi non-commercial organizations
The author describes the problem of conduct of entrepreneurial business by new types of non-commercial organizations (autonomous establishments, state corporations and state companies) and makes the conclusion that this is in most cases the primary purpose of use of such forms of incorporation.
Keywords: non-commercial organizations, autonomous institution, state corporation, state company, entrepreneurial activity
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Yu.G. Leskova Self-regulating organizations in Russia: prospects of law development
The article analyzes the norms of current legislation of the Russian Federation, provisions of the Concept of development of civil laws of the Russian Federation and draft amendments to the first part of the Civil Code of the RF as regard to the matter on determination of the legal status of self-regulating organizations from the point of view of identification of specificity of their functional importance and difference from other non-commercial organizations. The author pays attention to the necessity of further reforming of the institute of self-regulation.
Keywords: self-regulating organizations, self-regulation, subsidiary liability non-commercial organizations
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V.V. Korablin Particularities of taxation of non-commercial organizations
The article touches upon topical problems of taxation of non-commercial organizations including those concerning application of tax preferences, special taxation procedure as well as tendencies and prospects of development of laws in that area.
Keywords: taxation of non-commercial organizations, tax on profit, value added tax, simplified taxation system, primary directions of the tax policy
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Theory and practice

I.M. Divin Court practice as a source of the modern law of Russia
The article attempts to justify the vision of the court practice as a source of the modern national law. The author defines the law practice as a source of law, considers the possibilities for further development of the legal system of Russia according to the “mixed” type supposing to use regulatory legal acts and court practice as key sources of law.
Keywords: court practice, source of law, acts of superior courts, mixed legal system
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A.Ya. Kurbatov The precedent law in Russia: disregard of laws and aggravation of problems of law enforcement
Appeals to introduction of the precedent law in Russia the legal system whereof relates to the continental legal family are, in the author’s opinion, appeals to ignore norms of the RF Constitution and laws and conflict with the logic of historical development. In addition, at a state with the federative structure where three formally independent branches of judicial authority exist, this will inevitable result in catastrophic implications for the legal system.
Keywords: precedent law, court precedent, interpretation of law, law-making
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A.Ya. Kleymenov On establishment in the Russian civil and arbitration procedure consequences of refusal of the respondent to submit a counterclaim
On the basis of the analysis of the construction of a forced counterclaim in the civil =rocedure of the USA which permitted to identify reasons, conditions and consequences of legal limitation of the procedural right of the respondent and forcing him to initiate submission of a counterclaim, the author makes the conclusion on admissibility and advisability of use of such a construction in civil and arbitration procedure of the Russian Federation since this will allow an avoidance of the risk of review of the award issued on the initial claim in cases when the claim submitted by the respondent further on as an independent claim is aimed to align, including break of the grounds of the initial claim. Relevant suggestions are made on improvement of the procedural laws of Russia.
Keywords: counterclaim, abuse of procedural rights, the right for judicial protection, principle of res judicata
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K.Yu. Totyev Exclusions from restrictions of the anti-trust law: particularities of legitimation and operation
The article touches upon the problem of legal justification and advisability of exclusions from restrictions of anti-trust laws. The author makes the conclusion that exclusions from restrictions of anti-trust laws are aimed at achievement of targets of the economic policy (in particular, stimulation of technical and economic progress) as well as that in the current national practice of arbitration courts such exclusions are used to justify the conclusion on permissible orders of civil rights of entrepreneurs.
Keywords: anti-trust laws, exclusions from restrictions of anti-trust law, competition, non-admission of competition, limitation of competition, elimination of competition, protection of competition, admissible limits of civil rights
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S.A. Chechel The procedural aspects of contestation of transactions as cancelled ones
The author describes the main procedural issues of contestation of transactions as cancelled ones: admissibility of submission of a claim to recognize a transaction as cancelled; persons entitled to such a claim; application of the period of limitation to the request for recognition of a transaction as cancelled; the possibility of assessment by the court of a contract as not concluded in the absence of the submitted claim for recognition the same as such.
Keywords: cancelled transaction, not concluded contract, contestation of transactions, the right for the claim, period of limitation
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V.S. Petrischev Restoration of a real estate asset on an alien land plot
The article touches upon problems of restoration of a destroyed real estate property on an alien land plot in the Russian law. The author critically assesses approaches generated by the arbitration practice to resolution of the matter on termination of the right of the owner of the destroyed property for restoration of the same.
Keywords: destruction of a real estate property, restoration of a real estate property, real estate, alien land plot
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M.V. Avdeeva Legal text: some particularities of semantics
The author considers linguistic particularities of the legal language and text. It analyzes distinguishing signs thereof, and results of such analysis permit to determine the legal language and text as special concepts.
Keywords: semantics, legal text, text of regulatory law, legal language, legal technique
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Foreign experience

I.R. Medvedev Interrogatory in civil proceedings of the USA: requirements to answers
The article touches upon the procedures of responding to interrogatory (written questioning of parties), analyzes such a complicated in practice issues as interpretation of the condition on the term for responding and consequences of skipping thereof, form of responses, criteria of assessment by the court of the content of answers, the obligation to justify reference of ignorance, to supplement and explain responses.
Keywords: civil proceedings of the USA, interrogatory, questioning of parties, requirements to responses of parties
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A.A. Solovyev Specialized legal proceedings: certain issues of organization and operation of courts of the sportive jurisdiction of Brazil
The article touches upon analysis of foreign experience of organization of specialized legal proceedings on the basis of the example of courts of the sportive jurisdiction of Brazil. The author gives general characteristic of the Brazilian code of the sportive justice, considers its structure, makes comparative analysis of certain procedural constructions proper to the Brazilian and Russian legal systems making accent on the most interesting provisions which may be used in the national law-making practice.
Keywords: specialized legal proceedings, Brazilian code of the sportive justice, sporting justice
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Legal education

E.A. Borisova The balance of interests of subjects seeking court protection and subjecting providing the same has not yet been reached
The questions of the editorial office of the magazine “LAW” are answered by the professor of the department of civil procedure of the legal faculty of the Moscow M.V.Lomonosov State University, doctor of legal sciences, Elena Alexandrovna BORISOVA
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Actual classic