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Февраль 2014




Chief editor’s column


Interview of the issue

A.K. Nesterenko Profesionals’ Association is the Key to Success!
The President of the Russian Corporate Counsel Association Alexandra Konstantinovna NESTERENKO replies to the questions by Yan Piskunov, chief editor of the “ZAKON” journal
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The Event. Comments of the Experts

Conflict of Interests in Legal Practice: for Reasonable Limits
In January, 2014, the High Court of Justice of England and Wales delivered a rare judgment: the Court dismissed the international law firm White & Case from the case due to a conflict of interest in the dispute between the Ukrainian oligarch Viktor Pinchuk, represented White & Case, and Gennady Bogolyubov and Igor Kolomoisky. Mr Justice Field delivered injunction when became convinced that the USA subsidiary of White & Case advised opponents’ business structures on the deal in the USA. The decision stated that the confidential information on that project could be disclosed to a known team of lawyers advising Viktor Pinchuk in court.
Disregarding the reasonableness of a particular judicial decision, we have asked the experts to express their opinion on the following questions: are the criteria indicating conflict of interest well defined? How far it would be harmful for the turnover to establish an unconditional embargo for rendering legal services by lawyers of one firm to the potential parties of dispute? What are the prospects that such issues will arise in Russia?
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Topic of the issue

V.I. Senchischev Seizure of land plots should be exceptional
Deputy Head of Department of the Research Center of Private Law under the President of the Russian Federation Viktor Ivanovich SENCHISHEV replies to the questions by Vladimir Rumak, managing editor of the “ZAKON” journal
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Ye.L. Povetkina Seizure of Property for Public Needs: Civilised Principles and Modern Trends
Recently, a special legislation on seizure of property for public needs is being intensively developed, at the same time the new laws meet sharp criticism from representatives of civil doctrine, and above all, from the Council for the Codification of Civil Legislation. Being critical to the positions of both parties, the author tries to prove that in today society the balance of private and public interests is not as straightforward and requires new thinking both by legislator, and by both legislator and representatives of legal science.
Keywords: real estate, suspension of rights, seizure for public needs, state needs, municipal needs
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Ye.Yu. Gavrilina, Ye.V. Borodkina Seizure of Plots for Public Needs: Current Issues and Trends
Currently, seizure of plots for public needs raises a number of problems when applied. The authors examine controversial issues of special procedures of plots seizure, exemption mechanism on the initiative of the owner (a land-user, a landowner). Particular attention is given to assess the amount of seized area value. The authors suggest a possible mechanism for its assessment.
Keywords: seizure of land plots, special manner of land plots seizure, compensation, indemnity, assessment, market value, cadastral value
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G.L. Zemliakova Identity Function of Cadastral Registration in Terms of Plots Seizure for State and Public Needs
The article examines some of the issues arising in connection with the seizure for public and municipal needs previously recorded plots, as well as parts of the plots. On the basis of the courts practice, the author makes conclusion on advisability to amend the boundaries and cadastral registration of privately owned and previously recorded plots. The author makes suggestions on improvement of existing legislation.
Keywords: plots boundaries, previously recorded plot, part of plot, cadastral registration, seizure of plot
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R.A. Taradanov Determination of Indemnity Amount to the Landowner Seized for State or Municipal Needs
The article deals with the calculation of damages caused to the owner of a plot and real estate located on it (plot improvements) when seizing property for public purposes in Russia. The author notes the absence in domestic law and practice effective mechanism enabling to account loss of expected gain as part of the redemption value, as well as the need to apply the most adequate approach, namely the cost approach when calculating the value of seized capital facilities.
Keywords: land plot, real estate, capital facilities, title to land, property seizure for public needs, loss indemnity, loss of expected gain
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Theory and practice

Yu.M. Yumashev Independent Measures of European Union for Regulating Foreign Economic Relations
The article presents the main legal instruments of the EU trade policy, along with the mechanisms of the WTO, enabling to protect the European manufacturers against unjustified use of government subsidies and import duties from third part, as well as promote effective export controls. The author explores the limits of the EU external competence in this area.
Keywords: European Union, European Economic Community, the EU law, the EU foreign policy, foreign trade, Customs Union, common customs tariff, anti-dumping measures, countervailing duties
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V.M. Zaripov Legal Instruments of Raising Efficiency of Tax Privileges
The article is devoted to one of the topical issues in the modern Russian tax policy related to imprecise interpretation of the institute of tax privileges in the Russian law and legal practice. Today different preferences are given for most taxes, and such preferences are not assigned with a formal status of tax privileges, which directly affects the growth of budgets of all levels. In order to systematise the state policy regarding the establishment of privileges and preferences for taxes and fees, the author suggests to capture in the law the definitions of the tax privileges and exemptions of taxes and fees, basic principles of their establishment, as well as to supplement the provisions of the Tax Code with the special provisions of tax privilege elements.
Keywords: tax, fee, tax privilege, tax policy of the state
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K.G. Savin Separate Issues of Applying Guarantee Provisions by the Courts of General Jurisdiction
The article focuses on how the guarantee is affected by increase the secured obligation without consent of the guarantor, dissolution and death of the principal debtor, and court decisions entered into force on recovery of debt from the debtor's and other guarantors by the principal obligation. The approaches developed in the practice of the courts of general jurisdiction are compared with the positions of commercial courts. The author believes that adoption of binding separate rulings of higher courts and those clarifying the application of civil law adversely affects the formation of a uniform court practice.
Keywords: guarantee, cancellation of guarantee, expansion of guarantor’s responsibility, regular court, debtor’s dissolution and death, inadmissibility of dissimilar interpretation of standards
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O.A. Stepanova Limits of Optionality in Cases of Administrative Violations
The paper investigates the issue of whether the parties of administrative violations proceedings as well as the administrative authority during the trial have the right to conclude a settlement agreement, waive or admit the demand. The legal implications of such procedural steps are analyzed. Coming to a negative answer to this issue in part of possibility to enter into the settlement agreements regarding this category of cases, the author proves the lawfulness of entering into such agreements as the case may demand.
Keywords: arbitration process, civil process, court proceedings in cases of administrative violations, the settlement agreement, waiver, recognition of the claim
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G.N. Budneva International Legal Protection of Inventions
The article highlights a range of issues related to the legal protection of inventions. The author considers in details the features of inventions, procedures for patent rights formalisation, meaning and protection of the patentees’ rights, as well as protection of Russian developments abroad. In this paper the author uses the most recent Russian legislation, as well as analyses the multilateral agreement with universal content, the Convention of Industrial Property Protection
Keywords: invention, patent, license, Paris convention
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K.B. Fradkin Issues of Disputing the Rights to Cultural Property
The article highlights the main stages of fight against illegal seizure of property, the cultural property of Russia. Taking actions of public authorities in Moscow as an example, the author shows how dangerous may be the seizure and subsequent transfer to private ownership of the real estate property in terms of conservation of the cultural heritage, in case if the historical and cultural value of such property is not taken into account at commercialisation of such property. Also the author discusses the issues faced by the Russian society at defending in court the claims of return of the disputed property and eviction of persons illegally occupying the premises on the basis of void contracts signed with city of Moscow.
Keywords: cultural property, historical and cultural landmarks, proprietary right, state property, real estate property
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Foreign experience

A.A. Trefilov Differentiation of Pretrial Procedure in Modern Criminal Proceeding in Switzerland
The author examines the organisation of pretrial procedure in the new uniform Criminal Procedure Code of Switzerland 2007, which reflects the major European trends associated with the differentiation of inquest and preliminary investigation. In this article, the main features of their relation in the modern Swiss legal order are analysed from a comparative point of view. The author comes to the conclusion that it is necessary to take into account the experience of the drafters of this Code by the Russian legislators.
Keywords: differentiation of pretrial procedure, inquest, investigation, pretrial investigation, Criminal Procedure Code, legislation of Switzerland
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