ARCHIVE FOR 2013 RUSSIAN
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Декабрь 2013
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
20 years of constitutional justice: some results Constitutional control plays a special role in the Basic Law implementation. On the eve of the Constitution anniversary we decided to ask the experts: what resolutions of the RF Constitutional Court are, in your opinion, the most significant for the entire period of its existence and why?
Topic of the issue
Medvedev D.А. Constitution, Russian government functions and effective management technologies The article reveals the role of the Constitution as the Basic Law of the Russian Federation, assesses its impact on establishing the rule of law in Russia and democratic system of public administration, a special place in which, according to the author, belongs to the Government.
Keywords:
Constitution, Government, state administration, administrative reform, legal technologies
Medushevsky А.N. Constitutional modernization in Russia: strategy, trends, and methods The author presents a systematic review of key recommendations concerning Russian constitutional modernization represented in the newest research project of the Institute of Law and Public Policy. He analyzes propositions in such vital areas as conceptual framework of constitutional order, pluralism and democracy, separation of powers, federalism and local government, and constitutional justice in their regulatory and practical implementation, along with the strategies of constitutional reforms and constitutional monitoring concepts. The main conclusion of the research is the idea of coping with constitutional deviations by establishing new public ethics, law policy, and partial transformation of the constitutional legislation.
Keywords:
Institute of Law and Public Policy, constitutional modernization, constitutional principles, pluralism, separation of powers, federalism, constitutional justice, constitutional monitoring
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Zhilin G.А. Individual’s legal status in constitutional terms The article proves the thesis that the RF Constitution provides the proper foundation for governing the state and society basing on the legal democracy values, so no review of its fundamental provisions is required. Implementation of the constitutional principle of human rights and freedoms priority requires the combination of strong state power based on the supremacy of law, and individual's behavior correlated with rights and legal interests of other people, and thus, their contrapositioning when giving constitutional and legal characteristic of individual’s legal status in the Russian Federation is unfruitful.
Keywords:
individual’s legal status, constitutionalism, human rights and freedoms, democratic constitutional state, supremacy of law, rule of law
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Budylin S.N. Convention or constitution? International law and state sovereignty limits The author dwells upon one of the most acute problems at the interface of the constitutional and international law, which remains unsettled not only in Russia, but in a number of European countries. What shall prevail: provision of international treaties or the constitution? The article suggests a reasonable way to settle the problem basing on the analysis of a number of cases where similar problems arose.
Keywords:
Constitution, international law, international agreements, European Convention for the Protection of Human Rights and Fundamental Freedoms, ECtHR
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Starilov Yu.N. Implementation of the Russian Federation Constitution and today’s administrative law The article dwells upon the issues of constitutional and legal norms impact on the rapid development of Russian administrative and administrative procedural law during the last 20 years. Administrative law modernization is connected with the problem of implementing the RF Constitution and deployment of its legal potential in the field of organization and functioning of public administration.
Keywords:
Constitution implementation, constitutional and legal norms, administrative and administrative procedural law, administrative law modernization, state administration, administrative procedures, administrative proceedings
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Vinogradov V.А. Constitutional state and supremacy of law: theoretical constructions and implementation The author gives an estimate of the two constitutional principles in terms of their mutual influence and the search of the common source to be the basis for the legal framework of a democratic state. The author presents his view on the role of the RF Constitutional court position when explaining the principles for a legal practitioner.
Keywords:
constitutional state, supremacy of law, competition of jurisdictions, constitutional principles, RF Constitutional court, constitutional interpretation
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Sasov К.А. Tax law under the Constitution protection: results of the first twenty years The utmost importance of the RF Constitutional Court for establishing the principles of the modern tax law is indisputable. However, in the author’s opinion, the Court has not always managed to achieve the balance in taxpayers’ right protection. The author gives an estimate of the Constitutional Court approach to the basic tax law problems occurred during the entire period of its existence, as well as makes a forecast concerning the issues which may become the subject of constitutional control in the near future.
Keywords:
Constitution, RF Constitutional Court, tax law principles, tax liability, taxpayers’ responsibility
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Judicial practice. Comments
Schwarz М.Z. On status quo preservation and procedural formalism The article investigates the unprecedented Determination of the RF Supreme Arbitration Court No. VAS-5243/06 of 07.10.2013 providing for preliminary interim measures in the form of suspension of cassational court decision execution. The author wonders whether it is possible to suspend the judicial act action until its complete execution, and gives an estimate of the Determination in terms of formal compliance with procedural law requirements.
Keywords:
arbitration proceedings, RF Supreme Arbitration Court, review proceedings, judicial act review, suspension of judicial act execution, legal force of judicial decision, form of action
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Theory and practice
Velyaminov G.М. On the notions of international private law, legal unification, and law in general Pursuant to the generally accepted understanding, international law is the conflict of laws, and cannot be automatically correlated with any legal relations with “foreign element”. Following the classical ideal of international private law, the author proves that unification of the international private law takes place in term of the conflict of laws, and should not be associated with unification of private legal norms in general. The law in general is considered as an imminent combination of objective and subjective law. The author also emphasizes that the power acts as a direct lawmaking factor, and the key source is not the so called intention, but interest.
Keywords:
law, international law, international private law, legal unification, objective law, subjective law, power, interest, intention
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Krokhmal V.G. The problem of international relations definition in the International Law Commission work The author touches upon the genesis of the “international organization” notion in the modern law, emphasizing the special role of UN International Law Commission in the generation of its basic characteristics. The author takes the problem of defining the legal personality of an international organization as the basis of the problems connected with development of the corresponding definition.
Keywords:
international entities, international organizations, international legal personality, International Law Commission
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Suvorov Е.D. Subsidiary responsibility for debtor’s obligations during bankruptcy proceedings: enforcement matters The article investigates substantive and procedural matters arising in the course of filing and consideration of claims connected with bringing the persons supervising the debtor’s activity to subsidiary responsibility during insolvency (bankruptcy) proceedings. The author focuses primarily on distinctive features of collective claims, the beneficiaries of which are bankruptcy creditors.
Keywords:
insolvency, bankruptcy, insolvent debtor, subsidiary responsibility, controller responsibility, bankruptcy administration, indemnification
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Zabrodin D.М. Class actions in Russian arbitration proceedings: the single legal relationship problem The recent legislative initiatives bring to the next level the problems which have been long discussed in theory and connected with class action application. The article focuses on the issue which the author considers to be the key problem of the kind, and the resolution of which directly impacts the prospects of class action application in Russia.
Keywords:
arbitration proceedings, class actions, class action suits, single legal relationship problem
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Bagaev V.А. The significance of fair possession for acquisitive prescription Civil code reform provides for cancellation of the bona fides requisite of acquisitive prescription. The article shows the reasons for taking this decision and gives an estimate in terms of bona fides position in the acquisitive prescription institute. The author believes that the balanced structure of acquisitive prescription should provide for the option of both fair and unfair possession. The term for the latter shall be longer. This is the basis for criticizing the single thirty-year period of possession of property withdrawn from the ownership against the owner’s will.
Keywords:
acquisition of title, acquisitive prescription, possession, bona fides, real estate
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Khrustaleva А.V. Compulsory acquisition of a small share of ownership in domestic judicial practice The article focuses on one of the most sensitive issues in the field of property rights protection — the problem of legality of appropriation of a small share in the common property in the context of balance of owners’ rights and legal interests. The analysis of general and arbitration court practice shows that there is no single approach to the issue in Russia so far.
Keywords:
property right, joint shared property, inviolability of private property, compulsory acquisition of a small share
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