Журнал ЗАКОН

A good lawyer can predict how the things will go on. What will be the guideline for accurate predictions today when the legislation and judicial system are fundamentally reformed and exterior conditions are changing? We have talked to Igor Maydannik, Rosneft Vice President for Legal Support who built his brilliant career regardless, and asked him about the past, present and future of the Russian law and law enforcement. Y.B. Piskunov, chief editor.

Rosneft Vice President for Legal Support Igor MAYDANNIK replies to questions by chief editor of the “ZAKON” journal Yan Piskunov.

The Ministry of Justice of the Russian Federation has recently announced drafting a bill aimed at improving lawyers’ access to information which is one of the essential guarantees for the functioning of lawyers. The Ministry claims this so far unpopular way to obtain evidence will be changed by specification of the legislation, particularly establishing forms and contents of lawyers’ inquiries, authorites’ liability for disclosing with delay, not disclosing or disclosing misleading information requested by a lawyer. This might create an effective procedure for obtaining evidence and thus make legal representation effective. What is your opinion on this legislative initiative?

Applying modern IT-technologies to make public justice transparent, shortening the length of court proceedings, reducing cases when legal proceedings are suspended, preventing the loss of documents and providing easy access to information are the main objectives of the federal targeted program “Development of the Russian judicial system in 2013-2020” (approved by the Government regulation of 27.12.12 No. 1406). In 2009 the “ELAR” corporation installed in Vologda and Ulyanovsk district courts the system of court electronic records and now suggests seeing how the program objectives are fulfilled and the information is being stored. Advice to companies on how to improve the intellectual property management within the context of amendments to the part 4 of the Russian Civil Code. October 1, 2014 the amendments to the part 4 of the Russian Civil Code introduced by the Federal law of 12.03.14 No. 35-FZ come into legal force. Further to the advice published in the December issue of the “ZAKON” journal in 2013, the Russian Corporate Counsel Association has prepared a new set of advices to corporate counsels based on the “New Business Possibilities in the Intellectual Property” Conference held on April 18, 2014 with the assistance of Alekseyev Private Law Research Center under the President of the Russian Federation. So what are corporate counsels to do before the new version of the part 4 of the Civil Code comes into force? The RCCA gives them a bit of practical advice.

October 1, 2014 the amendments to the part 4 of the Russian Civil Code introduced by the Federal law of 12.03.14 No. 35-FZ come into legal force. Further to the advice published in the December issue of the “ZAKON” journal in 2013, the Russian Corporate Counsel Association has prepared a new set of advices to corporate counsels based on the “New Business Possibilities in the Intellectual Property” Conference held on April 18, 2014 with the assistance of Alekseyev Private Law Research Center under the President of the Russian Federation. So what are corporate counsels to do before the new version of the part 4 of the Civil Code comes into force? The RCCA gives them a bit of practical advice.

Author considers those key amendments introduced to the legislation on intellectual property which will directly affect the legal regulation of e-commerce in Russia.

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Keywords: intellectual property, e-commerce, agreements, protection of intellectual property

Author analyzes recent amendments to the Federal laws of 27.07.2006 No. 149-ФЗ “On information, IT and protection of information” and of 27.07.2006 No. 152-ФЗ “On personal data” related to the duty of companies doing their business on the Internet to store the data of users within the territory of Russia. He pays special attention to the personal scope of application of these laws as well as to their application depending of data types.

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Keywords: organizer of information distribution, local data storage, locking access to online content, legal regulation of the Internet, personal data

The article covers legal characteristics of a range of multi-player online games and virtual worlds related to virtual property (in-game items becoming subjects of commerce for real money). Author analyzes complex legal issues including differentiation of in-game and out-of-game relations, users’ content and legal nature of virtual property and virtual currency and examines the opinion of Dr. R. Bartle who is believed to have created the first virtual world. Close attention is paid to the contemporary Russian courts practice and legal science relevant to these issues. The research leads to main conclusions provided in the end of the article.

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Keywords: virtual property, virtual currency, virtual law, computer games, Internet, MMORPG, intellectual property

Authors analyse the reform of the Russian legislation on protection of intellectual rights which implies extension of application of the strict liability model. They explore prospects for imposing the condition of indemnification in the Russian contract law: its legitimation will allow finding the necessary balance between the interests of right holder and other market participants.

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Keywords: intellectual property, intellectual rights protection, illegality, strict liability, indemnity

The article is devoted to challenges to traditional taxation principles posed by a new trade system based on making bargains on the Internet. Authors analyze existing approaches to direct and indirect taxation of e-commerce and examine problems arising from the undefined legal nature of goods and services purchased online clearly affecting the taxation of the relevant trade actions.

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Keywords: taxation of e-commerce, value added, VAT, virtual goods, conception of strong virtual presence

Keyword advertising, an essential instrument for e-commerce development, has now become a mean of illegal use of well-known brands. As a result, protection of right holders from unfair competition becomes quiet urgent. Authors seek for possible ways to deal with the problem in the antimonopoly and intellectual rights’ legal regulation

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Keywords: keyword advertising, intellectual property, copyright protection, unfair competition, antimonopoly liability

July 1, 2014 most of amendments to the regulation on pledge and substitution of parties in an obligation set out in the Russian Civil Code, introduced by Federal law of 21.12.2013 No. 367-ФЗ, came into force. Author gives his appraisal of a few key changes to the Code related to assignment both of claims and a debt.

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Keywords: substitution of parties in an obligation, cession, assignment of claims, assignment of a debt, assignment of future claims, civil legislation reform

Legal regulation of grounds for vacation or modification of judgments delivered in civil litigation by supervisory authority have recently changed and are now enumerated in the Article 391.9 of the Russian Civil Process Code. Part 1 of the Article 391.11 of the Code needs the commentary as well. Since there is still no resolution of the Plenum of Supreme Court of the Russian Federation on exercising supervisory authority, particularly explaining the application of these Articles of the Code, the Supreme Court’s practice of their application is not sufficient and the legal science has not yet presented any special researches related to these issues, they remain highly topical both in theory and in practice.

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Keywords: civil process, Civil Process Code of the Russian Federation, grounds for vacation or modification of judgments, supervisory revision of judgments, general norms and principles of international law, public interest

The article touches upon the legal status of an out-of-court expert’s opinion as evidence in civil and commercial litigation. Legal science has developed a few controversial approaches to forensic research. Courts did not adopt any general approach until the Resolution of the Plenum of Supreme Court of the Russian Federation of 04.04.2014 No. 23 “On particular issues of application of legislation on forensics by commercial courts” as well. Unfortunately, the Resolution No. 23 has omitted issues of legal evaluation of out-of-court expert’s opinion as relevant and admissible evidence. Author suggests evaluating of forensic and out-of-court expert’s reports as one and the same evidence differentiating only by the mean of their acquiring.

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Keywords: forensic science, out-of-court expert’s opinion, evidence, proof in commercial process

The article touches upon the Civil Code regulation of consent to transaction, its types, and ways of its obtainment as well as consequences of its absence. Author proves the necessity of reforming the Russian civil legislation in the analysis of the Russian and foreign norms as well as on the courts practice related to consent.

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Keywords: consent to transaction, silence as consent, legal consequences of consent absence, invalidity of a transaction

Author explains the importance of differentiation between continuous and non-continuous legal offences and proves that a mistaken evaluation may lead to negative consequences including the lack of motivation for stopping illegal actions.

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Keywords: administrative liability, continuous administrative offence, prescription, Code of Administrative Offense of the Russian Federation

Contemporary legal science and courts practice obviously have no clear answer to the question what forms of law enforcement are applied to the state financial budgeting, whereas this issue remains highly important for regulating this sphere. Author analyses relevant courts practice and modern tendencies and concludes that judicial control over financial planning documents including budgets is possible.

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Keywords: state financial budgeting, budget, adequacy (proportionality), judicial control

The article covers key issues related to the legal status of magistrates in the French Republic. Author makes a review of relevant regulatory legal acts, examines basic principles of French judicial system and gives description to magistrate body. Special attention is paid to limits and guarantees of magistrates’ independence aimed at the effective performance of their powers.

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Keywords: judicial system of the French Republic, status of judges, public prosecution, magistrates, magistracy