ARCHIVE FOR 2013 RUSSIAN
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Июль 2013
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Immoral Transactions in the Russian Law This July one of the bloggers on portal ‘Zakon.ru’ discovered and proposed for discussing an interesting case that took place in the practice of Russian courts. In case number 11-27942/2012 the appellate division of the Moscow City Court applied article 169 of the Civil Code of the Russian Federation as a ground for invalidating a transaction on sale of an apartment by an elderly man at a price significantly inferior to its market value. We asked our experts to join the live discussion on the portal and to share their point of view on the case and the approach applied by the Moscow City Court to its resolution.
Topic of the issue
G.K. Zakharov, E.S. Khokhlov Rating of the Federal Antimonopoly Service of the Russian Federation among the World's Antitrust Authorities The article looks into the position of the Federal Antimonopoly Service of the Russian Federation in the annual ranking of the efficiency of the world's leading antitrust authorities published by the independent journal Global Competition Review. The authors analyze administrative and enforcement activities of the Federal Antimonopoly Service of the Russian Federation in different areas, such as fight against cartels and abuses of dominant position, as well as control over economic concentration.
Keywords:
antitrust legislation, Federal Antimonopoly Service of the Russian Federation, Global Competition Review
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E.A. Sokolovskaya Disparity of the Administrative Penalty and the Nature of Antitrust Violations The effective rules of imposition of administrative penalty do not provide for the possibility to reduce the penalty below the lower limit that may affect one of the fundamental principles of the law - the principle of proportionality of punishment to committed violations. In this regard, the author substantiates the need to amend the method of calculating fines for violation of antitrust legislation.
Keywords:
disparity, fine, violation, antitrust legislation, method of calculating fines, nature of a violation, the Code of Administrative Offences of the Russian Federation
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E. Bullion, I.V. Nikiforov Fight against Restraints of Competition in the European Union: New Opportunities for Russian Business The risk of losses caused by the breach of the EU competition law by foreign contractors is an inevitable consequence of involvement of Russian entrepreneurs in trade between the Russian Federation and the European Union. The European Commission plays an important role in counteraction against such violations, as its conclusion may be used as the basis for a court judgment stipulating recovery of damages from the monopolist. However, one of the current trends in Europe is to bring violators to antitrust responsibility by means of private law mechanisms. Authors of the article cover the possible reasons for such behavior.
Keywords:
protection of competition, antitrust regulation, cartels, private lawsuits, the European Union
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M.A. Borzova, K.G. Podguzova Private Lawsuits in Antitrust Law The authors of the article analyze the current practice in the Russian Federation to recover damages for violations of antitrust laws, describe the problems arising in the course of such proceedings and suggest their solutions based on the analysis of foreign experience in regulating private law claims (the United States of America and the European Union).
Keywords:
private law claims, private lawsuits, third antimonopoly package, compensation for damages, proof of damages, stand-alone lawsuits, follow-on lawsuits, law of the European Union, law of the United States of America
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E.V. Mushta Challenging Non-regulatory Acts of Competition Authorities The author examines the existing mechanisms and means of protection by entrepreneurs of their rights which in some cases may be infringed by adoption by the Federal Antimonopoly Service of the Russian Federation and its territorial bodies of non-regulatory acts aimed at ensuring compliance with the antitrust legislation. According to the author, the possibility of pre-trial appeal of such acts would increase the responsibility of territorial bodies of the Federal Antimonopoly Service of the Russian Federation, the economic feasibility of such decisions and reduce the workload of the courts.
Keywords:
Federal Antimonopoly Service of the Russian Federation, pre-trial appeal, challenging non-regulatory acts, antitrust disputes
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Theory and practice
L.V. Golovko Fundamental Features of the Russian Criminal Law and Procedure from the Point of View of Comparative Law On the basis of comparative legal and historical analysis of development of the Russian criminal law and criminal procedural law, the author explains what difficulties may arise in determining institutional boundaries of these areas of law. It should be noted that the difficulties discussed in the article are typical not only for the Russian criminal law in the broadest sense of the word, but also for foreign legal orders.
Keywords:
criminal law, criminal procedure, comparative law, ‘quasi-justicisation’, ‘policisation’
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M.A. Rozhkova, Yu.V. Tai On Some Issues of Determination by a Court of a Group of Persons, which Includes a Foreign Investor This article deals with the problems of application of Law No. 57-FZ for determination of a group of persons, which includes a foreign investor. Analyzing the legal position of the Constitutional Court of the Russian Federation and commercial courts, the authors justify the thesis of presence in the Law of a rebuttable presumption of establishment of control over a legal entity through nomination in governing bodies, as well as the need to apply the teleological (targeted) method of the Law interpretation, as imposition of sanctions is only possible in case of actual control over a business entities of strategic importance.
Keywords:
foreign investor, group of persons, criteria for inclusion in the group of people, evidentiary presumption, business entity of strategic importance
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E.G. Dorokhina Legal Status of Participants in Construction in Case of Bankruptcy of Developers From 2011 the Law On Bankruptcy regulates relations connected with the bankruptcy of developers. The article focuses on specific features of the legal position of the main parties to such cases - participants in construction granted with the right in action to the developer. The article contains an analysis of problems arising in the arbitration practice on relevant disputes.
Keywords:
bankruptcy, participants in construction, developer, and register of claims on transfer of residential premises
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A.V. Koytov Problems of Bringing Officials of Public Authorities to Administrative Responsibility The author considers importance of personal responsibility of officials of public authorities for violation of constitutional rights of citizens and the actual complexity of application of instruments to bring officials to administrative responsibility. Particular attention is paid to methods of legal impact on the prosecution delegated with the right to initiate cases under Articles 5.39, 5.59 and 5.63 of the Code of Administrative Offences of the Russian Federation. The article suggests analysis of effective rules establishing rights, violation of which entails responsibility, as well as experience in its application, inter alia by the author.
Keywords:
officials, officers, administrative responsibility, prosecution
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A. S. Ignatyev Correlation between Judicial Discretion and Legitimacy: General Theoretical Approach (Based on the Practice of the Constitutional Court of the Russian Federation) The article reviews the legitimacy of judicial discretion. Legitimacy is the quality that distinguishes discretion from arbitrariness. However, the science of law seems to study the issue from one-sided view, namely as conditionality of discretion to a rule of law or a legal act. In our view, legitimate discretion may occur in interpretation of provisions, in their specification and application of analogy of law. General theoretical conclusions made in the article are confirmed by the practice of the Constitutional Court of the Russian Federation, notably by a number of its decisions adopted with recourse to discretion.
Keywords:
judicial discretion, discretion, legitimacy, judicial authority, law, interpretation, specification, analogy of law, constitutional proceedings, the Constitutional Court of the Russian Federation
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A.V. Milkov On Approaches to Distinction between Concepts of ‘Civil Protection’ and ‘Civil Liability’ The science of civil law demonstrates no unity of views on the issue of correlation between the concepts of protection and responsibility. Analyzing points of view of advocates and opponents of the above concepts differentiation, the author comes to the conclusion that the problem of distinction between the concepts of civil protection and civil liability can be successfully solved only after verification of interpretation of the above concepts.
Keywords:
civil protection, civil responsibility, sanctions
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Foreign experience
A.I. Dondokov ‘Loss of Chance’ Doctrine in English law The article envisages the practice of application by English courts of the ‘Loss of Chance’ doctrine. The doctrine recognizes losses and possibility of their recovery in case a party injured by an offence loses solely a chance to realize profit (to avoid negative consequences). The amount of compensation is determined based on the value of the result lost, reduced in proportion to the probability of its realization in the absence of the offense. The author evaluates specific features of the doctrine and assesses the possibility of its application in the Russian judicial practice.
Keywords:
‘Loss of Chance’ doctrine, damages, loss of profit, cause-and-effect relationship, standard of proof
Yu.E. Shmagina Legal Regulation of Activities of Highly Skilled Foreign Workers in the European Union Formation of a unified legal framework ensuring free live and work of highly skilled foreign professionals in all the states - members of the European Union is a guarantee to attract more specialists in the Union. The article provides a legal analysis of the European Union policy in relation to highly qualified workers from third countries.
Keywords:
migration, labour market, employment, the European Union, third countries, legal regulation, qualified foreign specialist
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