ARCHIVE FOR 2014 RUSSIAN
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Август 2014
CONTENT
Interview of the issue
The Event. Comments of the Experts
TAX SHELTERING AS A CRIME In July a range of Russian mass media has given the information that the Government of the Russian Federation has promoted a bill initiated in the spring of 2014 by representatives to Russia’s Federation Council which is, according to some reports, arranging an open index of measures of criminal tax evasion. Concept of one of them — which is misuse of fiscal rights — is articulated in other draft law which is initiated in State Duma by the deputy A.M. Makarov. However the project backed by the Government is not published. Although it has attracted close attention of business community and legal experts and it can result in an essentially new level of the risks of tax sheltering.
How would you evaluate this new initiative?
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Topic of the issue
A.V. Asoskov. CONFLICT-OF-LAW REGULATION OF CORPORATE RIGHTS EXECUTION AGREEMENTS (CORPORATE AGREEMENTS) The article explains approaches taken into account by the law drafters formulating the new edition of the Article 1214 of Russian Civil Code on the definition of right applied to the corporate rights execution agreements (corporate agreements). Reasons to the benefit of the legal accepted compromised approach based on the combination of the right chosen by the parties and of the personal law of the legal entity are adduced.
Keywords:
corporate agreement, shareholder agreement, private international law, contract statute, personal law of the legal entity
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B.Y. Brooke. BENEFICIARY OWNER CONCEPT CODIFICATION OUTLOOKS IN RUSSIAN TAX LEGISLATION The article is concerned to one of the key problems arising of tax hearings – the issue of finding of factual income receiver. Author conducts analysis of the last changes to the Comments to the OECD model tax convention with respect to the issue of beneficiary owner concept as well as gives his own definition of the term and takes stock of correspondent provisions of the draft law proposed by the Russian Ministry of Finance.
Keywords:
income receiver, factual income right, factual income receiver, interest, deoffshorisation, double taxation agreements, OECD model tax convention
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I.G. Medvedev, V.V. Yarkov. ON CERTAIN ISSUES OF INTERNATIONAL HEREDITARY DISPUTE SETTLEMENTS The article’s authors turn their attention on the issues of finding jurisdiction and existing ways of getting around the rules of international jurisdiction in cross-border hereditary trials as well as evaluate the development options of international legal assistance in such cases.
Keywords:
inheritance, hereditary litigation, cross-border jurisdiction, lex fori, conflicts of the national jurisdictions, inter-court assistance
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A.A. Kostin. QUESTIONS OF THE PROPER NOTICE OF FOREIGN DEFENDANT IN INTERNATIONAL CIVIL PROCEDURE The article faces topics of the proper notice of foreign defendant in international civil procedure at bringing of an action and at recognition and enforcement of a foreign judgment. After a thorough analysis of the lex fori principle and of the state authority limits for executing implementation of justice author comes to the point that the questions of the proper notice of foreign defendant in international civil procedure at bringing of an action are subject to the law of court’s land. At the period of recognition and enforcement of a foreign judgment in a foreign country topics of the proper notice of foreign defendant are considered according to the law of the country of notice.
Keywords:
notice of a foreign defendant, notice of process, recognition and enforcement of a foreign judgment, international civil procedure
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Discussion Board
A.P. Sergeyev T.A. Teryeshenko. COULD A NOTICE ABOUT EXPIRATION OF THE LIMITATION PERIOD BE ACCEPTED AS MISUSE OF RIGHT? As we all know the modern civil law lets us to take into account the inequitable conduct of a person and deny its right of defense if the person is misusing its right. Still the disputable question is if the consequences of such misuse of right are legally applicable to the cases when actions of the other party are the cause of a delayed legal recourse. Authors consider the question of how the court should act upon receiving the notice about expiration of the limitation period from the party which has been maliciously blocking the enforcement of the litigant’s right of defense.
Keywords:
terms of defense of civil rights, limitation period, misuse of right, principle of good faith (bona fide)
Theory and practice
P.A. Skoblikov. MODERN RUSSIAN AMNESTIES: THEIR REASONS AND CONSEQUENCES One of the particular features of the Russian criminal policy is the application of amnesty on all kinds of occasions. Sometimes such showing of the state humanism has none of the criminalistic or criminal law related grounds. In order that this institution could be a part of the effective criminal policy we have to confront the question of what are the present purposes of amnesty and when its announce makes sense.
Keywords:
amnesty, criminal policy, judicial errors, rights of injured or aggrieved persons, redress in criminal cases, juvenile delinquency, feminine criminality, relief from criminal responsibility, relief from criminal punishment
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A.R. Sultanov. MOTIVATION OF A JUDICIAL ACT AS ONE OF THE CORE PROBLEMS OF FAIR JUSTICE After the thorough research of one of the core problems of delivering justice in modern Russia author proves a thesis about that fact that the presence of a proper motivation in a judicial act is an essential part of exercise of the right to a fair judgment. This is not a new demand powered by the practice of the ECHR but the fundamental procedural rule which violation as a general matter should lead to the judicial act reversal. The legitimacy of establishment of some exceptions letting the judge to pass a non-motivated decision as well as their applicability are being discussed in view of recent procedural novelties on the international level of jurisdiction.
Keywords:
legal judgment, motivation of a legal act, analytical part of judgment, fair justice, justice of the peace
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A.V. Stankievich. LEGAL NATURE OF MONEY LEFT ON THE NOTARY’S DEPOSIT : THEORY AND PRACTICE ISSUES Absence of legal regulation of the notary deposit institution turns into a set of multiple questions being primarily essential for businesses. Optimal solution of one of them which is the possibility of return of the moneys left on the notary’s deposit is made difficult by the yet existing problem of the legal nature of a notary deposit. After the complex research of civil legislation, judicial doctrine and court’s practice author comes to the conclusion that debtor has a right to demand the return of money left on the notary’s deposit if the creditor’s behavior results in the fact that he evades acceptance for execution.
Keywords:
notary’s deposit, creditor’s delay, custody, refund
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D.D. Bykanov. PENETRATIVE RESPONSIBILITY QUALIFICATION FROM THE RUSSIAN LEGAL PERSPECTIVE The article presents a study of topics of the adopted construction of penetrative responsibility (piercing the corporate veil) definition and qualification according to the Russian law. The work is prepared with the usage of comparative analysis of the US, German and Netherlands’ law.
Keywords:
penetrative responsibility, piercing the corporate veil, responsibility of the corporation participants, restricted responsibility principle, separation principle
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V.V. Kvanina. SYSTEM WEAKNESSES OF THE SELF REGULATION INSTITUTE The article consists of the analysis of provisions of the Federal law “About Self Regulating Organisations” and sectoral laws about self regulation in the valuation, audit, constructing activities as well as of conservatorship. It presents a research of goals, objectives and functions of the self regulation institute. As a result author comes to the conclusion that it is not ready to be an alternative to the licensing institution.
Keywords:
administrative reform, self regulation, self regulated organisations, functions of the self regulated organizations
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I.A. Vjeshnyakova, O.G. Yarmolovich. CERTAIN ISSUES OF THE CARRIER’S LIABILITY IN THE LIGHT OF THE ROTTERDAM RULES Currently Rotterdam rules are the most detailed convention on sea shipments. Still it has not gained any wide spreading. The article covers certain issues of regulation of the carrier’s liability combined with the period of such liability, its released matters, reasons for relief from such liability, with the executing sea party as well as provides the analysis of absence of the navigation error rule. Given research provides a comparison with the Russian legislation with the purpose to discover the most progressive regulations of the Rotterdam rules and offer suggestions of Russia’s adhere to the rules and of their probable usage.
Keywords:
Rotterdam rules, carrier’s liability, navigation error, piracy, executing sea party
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