Журнал ЗАКОН

The Article 222 of the Civil Code on the demolition of unauthorised constructions has got a new Item 4, which empowers local authorities to take an independent decision on the demolition of such construction in certain cases. Is this empowerment permissible? The main idea of the possible scope of state coercion leads to the conclusion that demolition of an unauthorised building, which is using the force to its possessor, cannot be organised without taking respective proceedings. Сlaim auction, provided by the original edition of the Article 222 of the Civil Code, would be an appropriate solution in this case.

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Keywords: demolition of unauthorised constructions, possession, demolition by state authority power, protection of right

The paper looks at different interpretations of Item 2 of the Article 214 of the Russian Civil Code in light of discrepancies both in the doctrine and courts practice. The author substantiates the idea that these provisions do not imply the presumption of state ownership of land as it was considered in the Soviet period. On the basis of all existing means of interpretation, the author concludes that Item 2 of the Article 214 is obsolete and thus should be excluded from the Code.

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Keywords: land rights, property right, presumption of state ownership of land, acquisitive prescription

The paper describes some problems arising in Russian judicial practice concerning the creation of public easements, their basic features, and the differentiation of public easements from similar legal categories.

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Keywords: easement, public easement, the restriction of the right of ownership

The paper considers draft provisions amending the “Real Rights” Section of the Civil Code of the Russian Federation and introducing building right — a new right to the land plot — into the Russian civil law. The author analyses the difference between the building right and tenancy.

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Keywords: building right, superficies, tenancy, limited real rights, reform of the Russian Civil Code

The author refers to the right of ownership and the right to use residential premises, which are granted to ex-family members of housing and building cooperatives shareholders, were initially established by the Housing Code of the RSFSR, yet were not included in the current legal codifications. The author also focuses on the proprietary nature of the above-mentioned rights and analyses the proposals for their integration into the applicable legislation on limited proprietary rights.

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Keywords: housing and building cooperatives, rights to use residential premises, rights of family members, usufruct

Today, many of us participate in associations of property owners. Such legal entities exist in the field of country economy since the Soviet era and enable land owners to create and maintain service infrastructure, the absence of which substantially hampers the use of the property or even makes it impossible. Paved roads, sidewalks, network engineering support (water, electricity and sanitation), capital projects public utilities (transformer substation, sewage pumping station), capital construction objects of social purposes (checkpoints, administrative buildings), etc. — this all is the common property. The paper is devoted to relationship between citizens and associations regarding the mentioned property beginning after the corporate relationship are terminated. The author, appreciating the provisions of law and judicial practice, provides her answer to the following question: should individual gardeners fund the upkeep and maintenance of the common property?

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Keywords: common property, individual gardener, withdrawal from association

The author criticises the attempts to prove that the so called principle in dubio pro duriore is applied in Russian pretrial criminal proceedings. The paper demonstrates that no argument referring to the use of this principle in foreign legislation could either justify or be valid grounds for its correspondent use in Russia. Otherwise, the development of Russian criminal process would shift to the presumption of guilt and voluntary criminal repressions would become the norm.

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Keywords: presumption of guilt, presumption of innocence, standards of proof, criminal process principles, in dubio pro reo, in dubio pro duriore

The paper focuses on three essential instruments which ensure the functioning of credit rating agencies as a constituent part of the capital market: avoiding conflicts of interest, disclosure requirements and surveillance. The author’s vision of current status and future prospects of newly adopted Russian legislation in this domain derives heavily from the comparative law analysis (primarily, legislation of the EU countries and the United States). The paper deals with some of the most complex and arguable concepts (default, unsolicited credit rating, the structured finance instruments) pertaining to credit rating industry. In particular, special attention is paid to viable civil liability regime, as well as to rating methodologies, which ensure both reliability and predictability of rating analysis (methodology for assigning credit ratings to parent companies and their subsidiaries serves as an illustration).

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Keywords: credit rating agency, credit rating, unsolicited credit rating, conflict of interest, parent and subsidiary entities, default, structured finance instruments, securitisation

The paper is devoted to the notion of “nominee director”, which is widely used by Russian taxing authorities and courts in tax cases. This notion has neither legal definition nor special criteria to avow the person as a nominee director. However, the use of it may entail legal consequences for both the nominally controlled legal entity and its counterparties: the legal entity, headed by a nominee director, may be deemed legally capable, and its counterparty risks being recognised as a person who has received unjustified tax benefit since no real transactions are made. The authors conclude that the use of the term “nominee director” in its current interpretation directly contradicts the public nature of tax relations. In this regard, it is necessary to replace the concept of “nominee director” by the term “man of straw”, used in the Criminal Code of the Russian Federation, and to envisage the possibility of bringing to liability the person who acts as nominal leader.

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Keywords: nominee director, legal entity, tax legal matters, formal active capacity, unjustified tax benefit

Having considered foreign experience, the author excercises judgements in interpreting the national actual law, court practice and scholarly approach relating to the ascertainment of fact whether the defendant residing out of jurisdiction was served in a proper way; discovers principal characteristics of a due service; inquires into questions concerning the law applicable to service of process on a person residing out of jurisdiction, finding out his address and legal meaning of the e-mail address; substantiates the admissibility of private agreements on the method of service of judicial documents and the necessity of a special regulation for the service of process outside of jurisdiction, including a service without using the international mechanism.

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Keywords: due service, procedural agreement, public policy, service of summons

The paper deals with problematic issues of interpretation and application of the existing Russian civil law, resulting in the satisfaction of creditors’ claims of a liquidated legal entity. The authors’ attention is drawn to different orders of creditors’ claims applied during the process of liquidation of a legal entity and de lege lata bankruptcy proceedings. The necessity of modernisation of certain provisions of civil law on liquidation of legal entities is duly explained.

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Keywords: corporate law, liquidation, legal entity under liquidation, creditors’ rights, priority of creditors

The author criticises the concept of two-aspect (positive) legal liability. He considers academic definitions of positive legal liability, analyses the attempt to find a unified view on legal liability, which would include both positive and negative aspects; examines the relationship between social responsibility and legal liability. The paper argues that the concept of positive legal liability introduces a philosophic notion of “inner responsibility”, which turns out to be renamed “positive legal liability”, into the legal academic vocabulary. Therefore, the author suggests to recognise this concept as inadequate.

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Keywords: legal liability, retrospective legal liability, positive legal liability, social responsibility, kinds of social responsibility

In the lead-up to the elections to the State Duma of the Federal Assembly of Russia, the author analyses progressive legal instruments, which ensured the transparency and democracy of elections recently held in the Republic of Uzbekistan. The author suggests this practice would be helpful for Russia.

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Keywords: election law, electoral system, elections, observers, voting procedure, elective rights