ARCHIVE FOR 2015 RUSSIAN
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Август 2015
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
L.V. Golovko. Two Alternative Directions of Criminal Procedure Policy In Cases On Economic And Financial Crimes: Crime Control and Doing Business The article examines two possible directions of criminal
procedure and, in a broader context, criminal policy in the
economic sphere: Crime Control and Doing Business. Whereas
Crime Control is mostly a feature of the western legal orders,
Russia on a certain stage of its development has made an
attempt to adopt the Doing Business policy. Yet the aspiration
for the theoretical conceptualisation of the paradigm change
failed, so the legislator has decided to act empirically by
adopting several criminal and criminal procedure reforms.
Still, their conceptual weakness has become evident both in
technical and political issues. That is why the functional role
of criminal law in economics has to be reevaluated marking
the boundaries between the permissible and the prohibited.
Acting exclusively in the prohibited (“dirty”) zone, criminal
law and procedure can inherently be built only on the Crime
Control basis being incompatible with the Doing Business
policy.
Keywords:
criminal policy, Crime Control, Doing Business, economic crimes
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A.I. Korobeev. Criminal Policy in Russia: Problems of Penalization and Depenalization The article focuses on the current state of the criminal
policy of Russia which is characterised by the absence of
clearly defined and officially approved conceptual grounds.
The reforms of criminal law are implemented by means of
spontaneous, contradictory and inconsistent directives that
come from the authorities and are poorly enforced in reality.
Endless amendments and additions made by the legislator to
the Criminal Code have deprived the Code of its consistency.
The author proposes a radical solution to these problems.
He suggests drafting and adopting of the new edition of the
current Criminal Code on the basis of profound theoretical
and applied research using comparative methods and taking
into account the concepts of Russian criminal policy.
Keywords:
criminal policy, penalty, penalisation, depenalisation, criminal repression
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E.A. Melnikov. Main Problems in the Field of Criminal Policy The article touches upon the results achieved by a working
group on the monitoring of the criminal policy of the Russian
Federation, which was formed in the Council of Federation of
the Federal Assembly of the Russian Federation in January
2014. The general causes of a system crisis in the sphere
of criminal policy are analysed. The six criminal policy
areas focused upon are criminal law, criminal procedure,
criminal inquiry, penal regulations, criminal prevention and
organisational problems. The article addresses the examined
problems and analyses suggestions for improvements
regarding criminal law and criminal procedure policy offered
by the experts.
Keywords:
criminal policy, criminal law policy, criminal procedure policy
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G.A. Esakov. Extraterritorial Criminal Jurisdiction: Contemporary Global Trends The article analyses current version of the Russian Criminal
Code with regard to its provisions on criminal legislation in
light of foreign approaches in this field. The author comes
to the main conclusion about non-active, prudent approach
of Russian legislation to criminal jurisdiction confining it to
historically elaborated schemes. The comparison with the
current continental law and common law approaches reveals
that legislative schemes of the leading foreign states are of
more ‘aggressive’ nature. The passive nationality principles
as well as universal and protective principles are widely used
for asserting criminal jurisdiction extraterritorially. The author
concludes that some steps in the same manner might be
perceived by Russian legislator.
Keywords:
criminal jurisdiction, passive nationality principle, universal jurisdiction, protective principle, crime scene
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Discussion Board
N.E. Krylova. Is Humanisation of the Criminal Law underway? The Analysis of the Draft Laws Approved at the Plenary Session of the Supreme Court of The Russian Federation on July 31, 2015 The article is concerned with the drafts of the amendments
to certain federal laws, approved at the Plenary Session
of the Supreme Court of July 31, 2015, with regard to
criminal, criminal procedure and criminal enforcement
legislation, and other laws of the Russian Federation. The
critical review deals with provisions of criminal law, in
particular with the new type of exemption from criminal
responsibility due to enforcement of other criminal law
measures as well as partial decriminalisation of battery
(the Article 116 of the Russian Criminal Code).
Keywords:
criminal law, punishment, criminal law measures, humanisation of the criminal law, decriminalisation, criminal procedure, special order of the judicial proceedings
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V.A. Belov. “Forbidden” Civil Law, or What Is Civil Law Silent on? This is the final publication in the series of articles on the
“secret knowledge”, which is forbidden in the Russian civil
law studies due to the dogmatic thinking that separates
any alternative stream of legal thought except for the one
corresponding to the conventional dogma. That’s why the
Russian law students have no possibility to take a look on
many civil law institutes from different perspectives, which
adversely affects the national legal science. The author tries
to challenge certain stereotypes established in the Russian
law schools during civil law studies.
Keywords:
civil law, civil law teaching, legal education
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Press Release
GARANT
Theory and practice
A.E. Aloyan. The Models of Absolute Protection of Contractual Rights The article touches upon the issues of the application of
extraordinary ways of protecting contractual (obligation)
rights. The analysis of the structure of a subjective obligation
right reveals an element that externally affects third
parties. The author gives practical examples of the external
(absolute) effect of obligation rights, proves the possibility
of tort protection of their violation and provides criticism
of the corresponding judicial practice. Finally, the author
makes critical remarks on the essence of the lawsuit against
the interventionist in case of the double sale of one item.
Keywords:
protection of the civil rights, claim, subjective right, obligation
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V.A. Savinykh. Court Function in the Cases of Property Valuation Disputing The article looks at the question of the сourt function in the
cases of property valuation disputing. On the grounds of the
analysis of the economic category of market value the author
explores multiple reliable valuations, terms of valuation
contestation and analyses the peculiarities of an independent
valuer’s report against other evidences. The author proves
the necessity of differentiation of procedural and evidentiary
reliability of a valuation report. Following the results of
the survey, the author concludes that in cases involving
property valuation disputing, the function of the court is not
to resolve the dispute over the procedural reliability of the
valuation report, but to establish the fair market value of the
property. Thus, the court becomes the institution having the
right to terminate the endless multiplicity of procedurally
reliable valuations and to bring certainty to parties’ relations
through the establishment of the only reliable valuation.
Keywords:
market value, cadastral value, valuation report, function of the court, contestation of valuation reliability
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E.S. Legashova. Removal of the Restrictions related to the Disposal of the Goods Imported as a Contribution to a Company's Charter Capital: is there a Gap in the Legislation? The article deals with the problem of practical application
of the rule establishing the possibility of removal of the
restrictions related to the disposal of the goods imported
as a contribution to a company’s charter capital with the
exemption from payment of customs duty after five years
from the date of entry. The absence of both detailed regulation
of the procedure for removing restrictions for declarants
and regulations to be adhered to by customs officers could
be regarded as a gap in the customs legislation. Still, the
author asserts that there is no gap, and, consequently, there
are no obstacles for direct application of subparagraph 2 of
paragraph 2 of Article 211 of the Customs Code of the
Customs Union.
Keywords:
customs duty, import, contribution to the charter capital, exemption, gap in the law, removal of the restrictions
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A.T. Bonner. Artificial Insemination: Achievements and Mistakes of the Medicine and Broken Lives The author keeps on exploring the legal issues regarding the
use of assisted reproductive technologies in Russia. Courts’
practice is formed amid the imperfect legislation of this
delicate sphere characterised by gaps and collisions which
negatively affect the quality of judicial decisions. The article
touches upon two types of trials: cases involving potential
parents and health-care centers, and paternity suits.
Keywords:
artificial insemination, assisted reproduction, implantation of embryo, surrogation, paternity, family law
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