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Октябрь 2014




Y.B. Piskunov. Editorial
One of the first initiatives of the integrated Supreme Court of the Russian Federation is development of measurements to simplify proceedings on the arbitration cases. Legal specialists are long ago aware of the fact that the considerable part of disputes adjudicated by commercial courts is de-facto not disputes. Judicial procedure is often transformed into a legitimated mean to delay repayment of an evident debt used by unscrupulous debtors. A showcase here could be the fact that the Commercial court of Moscow has special hours for acceptance of claims from insurance companies


Interview of the issue

I.V. Kondrashov. The budget for counsels reduced four times in the last 3,5 years
Igor Kondrashov, director of legal department of JSC “Sberbank”, replies to questions by Yan Piskunov, chief editor of the “ZAKON” journal.
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The Event. Comments of the Experts

Bank secrecy is dead?
In October 2014 the EU ministers of finance have agreed to bring the European legislation on exchange of information on bank accounts to accord with new international standards. This means that the information covered by bank secrecy becomes completely transparent for the authorities exercising financial (tax) control. Lately this tendency towards transparency has been strongly revealed throughout the world including Russia where legislators discuss the possibility of both introducing restrictions on bank secrecy and adopting less complex procedure for accessing the audit secrets. We asked our experts to give their appraisal of this tendency and predict consequences and legal risks of audit and bank secrecy restriction.
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Topic of the issue

I.V. Reshetnikova. Proving in the civil process: awaiting unification of the procedural law.
The article examines the institute of proof and proving as to illustrate the unification of the Russian procedural law is possible. Author enumerates several contradictions in the actual legal regulation of proving and explains why they should be kept in mind when preparing both the conception of a new procedural code and the code itself.
Keywords: proving, proof, unification of the procedural law
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N.S. Chumak, N. Storrs. Beware, lawbreaker! Proving in the British process and international arbitrage
Authors examine the key principles of evidence disclosure and verification in the British judicial system. Special attention is paid to the two basic sources of evidence: documents and witness testimony. The rules touched upon in the article are applied in British courts as well as in other common law jurisdictions and international arbitrage.
Keywords: proving, disclosure, witness testimony, cross-interrogation, common law countries, British judicial system, international arbitrage
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N.G. Yeliseyev. Disclosure of evidence
Author makes a comparative analysis of disclosure of evidence settled in the procedural law of Russia, England, the USA and several other countries of the continental Europe and evaluates the efficiency of their procedural instruments for disclosure, particularly within the context of their possible implementation to the Russian legal system.
Keywords: civil process, disclosure of evidence, competitiveness, cooperation of parties
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S.L. Budylin. E-message as document and evidence
Author examines legal force of an electronic message in the view of performing or modifying transactions and analyses approaches regarding e-messages as evidence both in international legislation and in procedural law and courts practice of Russia and foreign countries.
Keywords: legal force of an e-message, transaction, evidence, proving, electronic correspondence
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M.Y. Liubchenko. On the prejudicial character of facts established in administrative proceedings
The article examines the way how a judicial decree issued under administrative procedure and the following civil (administrative) case involving same parties and heard in a court (commercial court) are prejudicially connected. Author comes to a conclusion that the lack of legal regulation causes serious collisions in courts practice which are to be handled by the legislator.
Keywords: civil process, commercial process, shifting burden of proof, prejudice, analogy of procedural law, administrative proceedings


Discussion Board

E.A. Trusova, E.I. Oreshin. Struggling for the Soviet copyrights. Is the right of prior use to no avail?
Within the scope of scientific discussion on the Soviet copyrights and legal means to handle conflicts arising from their use on the territory of the Russian Federation, authors offer their arguments against establishing the right of prior use over these brands.
Keywords: right of intellectual property, copyright, Soviet brands, right of prior use
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A.Y. Kurbatov. Reforming the legislation on arbitral proceedings: problems persist
Author claims that contemporary approach to reforming the legislation on arbitral proceedings is wrong and might cause negative consequences and launch senseless initiatives based on it.
Keywords: arbitral proceedings, arbitrage
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A. Serkov, N. Verkhova. Contractual system: if supplier is exaggerating his resources?
Experts of GARANT Legal consulting service explain to clients doing their business in accordance with the Federal law of 05.04.2013 No. 44-ФЗ how to act in case the ordered characteristics of goods differ from those actually supplied.


Theory and practice

P.G. Sychiov. Interaction of the civil and penal justice: issues of a civil suit in the frame of criminal case
The article touches upon procedural problems of criminal investigation of cases on violations in the economical or commercial activity material disposition of which inevitably leads to influence on the features of pre-trial proceedings. Author comes to the conclusion that the civil suit being the main instrument for indemnification is not effective under the circumstances of the modern economical criminality. Therefore its modernisation is needed thus the introduction of participants to the process such as beneficiary of beneficiary proprietor that could be brought to a trial as civil defendants.
Keywords: civil suit in criminal case, economic crimes, business crimes, differentiated judicial procedures
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S.B. Polich, I.P. Pushkarev. Issues of specification of jurisdiction of disputes arising of economical activity
Article presents the issues of specification of jurisdiction of economical cases in the general jurisdiction courts and commercial courts. Categories of economical disputes with complex jurisdiction criteria not only for interested persons filing a lawsuit but also for the judges are pointed out. The main accent of the research is aimed on the setting of theoretical and practical criteria for jurisdiction of disputes arising of economical activity between commercial courts and general jurisdiction courts. Article also presents further development prospects of the institution of jurisdiction concerning its transformation into the institution of original jurisdiction.
Keywords: jurisdiction, original jurisdiction, competent courts, commercial and economical activity, right to relief to court, arbitration proceedings, civil proceedings, business activity, professional activity
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A.V. Danilenkov. Cybersquatting and cyber-profiteering (domaining): distinction of concepts
Author draws a bright line between the concept of cybersquatting and cyber-profiteering (or domaining) in the view of evaluation of legality of actions (or inactions) of domain names administrators in the context of domain disputes as well as of the whole correlation of their rights and legal interests with competences of trademark (service mark) owners. The article provides substantiation of the thesis that domain violation can be of continuing and immediate character and that cyber-profiteering is a legal mean to realise the rights and legal interests in regard to domain name unlike the obviously illegal practice of cybersquatting.
Keywords: domain name, domain dispute, cybersquatting, cyber-profiteering, domaining
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V.M. Konshakov. Development and modern state of employer’s master authority
The article examines the timeline of regulation of master relations between the person granting the work and the person using it. It covers the issues of this part of relations in the concept of the employer’s master authority as well as the analysis of legal structure of legal relationship complicated by the element of the employer’s master authority.
Keywords: employment relations, employer’s master authority, operae, personal dependence
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A.C. Nuriev. Company bankruptcy risk limitation through the usage of SPV
The article explores the issue of protection of the company’s assets by the bankruptcy risk limitation with SPV. In this context special emphasis is laid on the advantages of designated companies (SFO, SOPF) introduced into civil circulation by the Federal Law of 21.12.2013 № 379-ФЗ “On Introducing Amendments to Particular Legislative Acts of the Russian Federation”.
Keywords: SPV, project company, bankruptcy, designated company
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A.A. Leibah. Digital interaction of the Federal Bailiff Service with lending institutions upon enforcement of judicial acts
The article focuses on the issues of digital interaction between banks and other lending institutions for the purposes of timely implementation by the Federal Bailiff Service of acts of courts as well as acts of other organs and official authorities with the information on prospects of digital workflow and other information technologies.
Keywords: enforcement of judicial acts, Federal Bailiff Service, lending institutions, digital workflow
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