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ARCHIVE FOR 2011    RUSSIAN

Сентябрь 2011

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

O.M. Sviridenko “Legal uncertainty really exists, but the practice of districts can help overcome it”
The chairman of the Federal Commercial Court for the Central District Oleg Mikhailovich SVIRIDENKO answers the questions of the editor-in-chief of Zakon.ru portal Olga Pleshanova
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The Event. Comments of the Experts

Disputes about future real estate are already in the past?
In July 2011, the Plenum of the Supreme Commercial Court of the Russian Federation passed Resolution On Certain Matters of Resolving Disputes Arising of Agreements related to Real Estate to be Created or Purchased in the Future. This document, the purpose of which is, inter alia, regulating the relationships connected with investments in construction, caused many questions and has been actively discussed both by theoreticians and by practitioners. We asked our experts to comment the Resolution. What is its value? Will it resolve the existing problems or cause new problems? What issues related to making agreements with respect to a future things have remained unresolved?

 

Topic of the issue

L.V. Golovko Conceptual basis of criminal policy in the field of economy
The most recent reforms of criminal law and process related to economic crimes have not only failed to bring any considerable results, but also demonstrated serious conceptual faults in today’s Russian criminal policy in the field of economy. Trying to resolve individual problems of law enforcement with regulatory methods, the legislator not only distorts the legal system, but also contributes nothing to the innovative development of economy. There is a need for a new criminal policy that will be based on the understanding of the role of criminal law as one of the most important market economy regulators in today’s environment.
Keywords: criminal policy, economy, businessman, economic crimes
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A.E. Zhalinsky Criminal law transnational conflicts in economy
This article is dedicated to the problems of solving transnational criminal law conflicts that are considered as a dispute with respect to applicable law between entities authorized to represent the national legal systems, such dispute arising out of any act involving a foreign entity. This article identifies actual, false, artificial and hidden conflicts, analyzes the entirety of applicable international treaties and national law, suggests a method for evaluating a conflict situation and risks related to transnational criminal law conflicts, as well as a method for resolving such conflicts. The article covers both general and special issues connected with jurisdictional conflicts in business.
Keywords: transnational criminal law conflicts, principle of application of criminal law, principle of non-interference in internal affairs, principle of criminal law sovereignty, ne bis in idem principle
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I.A. Klepitsky Insider information and criminal law
Federal Law No. 224-FZ dated 27.07.2010 provides for criminal liability for illegal usage of any insider information. What are the objectives of the state criminal policy in the stock market? Does Russian legislation promote their achievement? The author studies these issues in a comparative legal, a systemic and dogmatic and a socioeconomic context.
Keywords: using insider information, administrative liability, criminal liability
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R.V. Zhubrin Increasing the efficiency of criminal law anti-money laundering measures in Russia
This article deals with increasing the efficiency of using criminal law measures to combat money-laundering. Application of articles 174 and 171 of the Criminal Code of the Russian Federation is negatively affected by qualification errors resulting in violation of the rights of suspected and accused businessmen, irrational use of forces and facilities of the law-enforcement agencies. The number of qualification errors is increased by frequent changes of law causing instability in the application of law enforcement practices and by wrong understanding of the provisions of criminal law. Based on analyses, the author gives recommendations how to improve application of the said articles of the Criminal Code.
Keywords: money-laundering, qualification, law-enforcement agencies, rights of businessmen
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Discussion Board

G.K. Smirnov Criminal liability for tax evasion through abuse of taxpayer’s rights: new law-enforcement approach
Although tax evasion schemes based on abuse of taxpayer’s rights are widely spread, the question of liability for such acts is still very vague. This article describes new law enforcement approaches and doctrines allowing criminal prosecution of people evading taxes through abuse of taxpayer’s rights.
Keywords: tax offence, abuse of taxpayer’s rights, tax evasion
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P.A. Skoblikov Grounds and consequences of reducing liability for economic crimes in today’s Russia
This article is dedicated to Russia’s current criminal policy in the field of economic crimes. This work describes the most important steps taken in recent years in the said direction through reform of the Criminal Code and the Code of Criminal Procedure of the Russian Federation. Certain principles and justifications of the new criminal policy are subject to a comparative analysis. In conclusion, the author sums up and provides justification for the negative consequences of such total reduction of liability for economic crimes.
Keywords: current criminal policy, economic crimes, liability for economic crimes, decriminalization of economic crimes, humanization of criminal punishment, consequences of liberalization of liability for economic criminals
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Theory and practice

A.T. Bonner Be careful, signatory! Procedure for signing deals by signatory needs improvement
This article analyses the practice of application by courts of the provisions of article 160, clause 3 and article 1125, clause 3 of the Civil Code of Russia. In accordance with the said provisions, if due to any physical disability, illness or illiteracy a person cannot sign for himself or herself, then upon such person’s request another person may sign. The signature affixed by such another person shall be notarized, and reasons why the person being a party to the deal cannot sign shall be stated. Unfortunately, cases of falsification of documents signed by signatories are not rare now. The author thinks that law has no adequate guarantees of the rights of testators and heirs. The situation is aggravated by the fact that in such cases courts do not define the fact in proof in the same way and differently distribute the burden of proof between the parties. In this connection, there are suggestions to change the court practice and civil law.
Keywords: testator, signatory, notary, evidence, witness
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A.Y. Kleimenov, J.M. Bird Profile of a specialist involved in verifying amount in dispute in civil proceedings in Russia and in the United States
Analyzing the experience of participation of an expert having special knowledge in a civil process in the United States for verifying the correctness of the amount in dispute, the author concludes that using in Russian civil process a similar specialist for consulting purposes would result in reducing the workload on judges through reduction of their functions that are not directly connected with deciding a case on the merits.
Keywords: calculation of amount in dispute, specialist, master, evidence, consultation, item of evidence
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E.V. Ovcharova, N.A. Travkina Problems of licensing in alcohol market
This article analyzes the practice of licensing of manufacture and distribution of ethanol, alcohol and ethanol-containing products formed by the Federal Service for Regulation of Alcohol Market of the Russian Federation and by commercial courts, and identifies the problems connected with the application of the previous version, as well as disputable issues in the revised version of the Federal Law On State Regulation of Manufacture and Distribution of Ethanol, Alcohol and Ethanol-Containing Products, and On Restriction on Using (Drinking) Alcohol with respect to licensing of this activity.
Keywords: licensing, manufacture and distribution of alcohol and ethanol-containing products, Federal Service for Regulation of Alcohol Market of the Russian Federation
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V.S. Petrishchev Right of public authorities to determine cases for providing land only through tenders: problems of law enforcement
This article is dedicated to the exercise by public authorities of their right to determine lists of cases when lands shall be provided through tenders only. The author analyses legal consequences of contesting regulations governing determination of such lists and studies legal risks of providing lands in violation of such regulations.
Keywords: public authorities of constituent entities of Russia, local administration, tender, allocating land for construction
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R.D. Zorkoltsev Abuse of rights during remote banking
This article suggests remedies to resolve a dispute arising when claims are raised against a bank in connection with unauthorized debiting of an account of an individual using remote banking (Internet banking).
Keywords: Internet banking, remote banking, unauthorized debiting
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A.A. Arutyunyan International mediation standards in criminal proceedings
This article is dedicated to the basic principles and standards of application of the mediation procedure for criminal cases, as developed by the United Nations and the Council of Europe and recommended to their member-states.
Keywords: mediation, mediator, criminal proceedings, restorative justice, restitution process, basic principles of restorative justice
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Foreign experience

I.R. Medvedev Request to admit in U.S. civil process: requirements to answers and objections
This article deals with orders of the US procedural legislation governing requirements to answers (denial, statement why the answering party cannot truthfully admit or deny it) and objections to a request to admit. The article also analyzes certain rules applicable to the form of requests to admit and answers.
Keywords: US civil process, request to admit, admission of facts, objections
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Actual classic