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Октябрь 2016




Chief editor’s column


Interview of the issue


The Event. Comments of the Experts


Topic of the issue

D.M. Shchekin On the crisis of justice in tax disputes
The paper deals with main causes and factors of legitimacy erosion at the consideration of tax disputes in courts, and with grounds for the fundamental change of thrust that recently occurred in judicial practice. The author identifies topical tendencies in the sphere of taxation and suggests the ways to improve current system of protection of public and private interests.
Keywords: tax, tax law, taxation, taxpayers, tax courts practice, Federal Tax Service of Russia


V.M. Zaripov Limits of legislative discretion in the sphere of taxation: looking for a lucky pot of gold
The author uses the example of the Resolution of the Constitutional Court of the Russian Federation of 31 May 2016 No. 14-P to illustrate the development of views on the relation between legislative discretion limits and the sovereign right of a state to carry out its independent fiscal policy.
Keywords: the concept of tax, the concept of fee, mandatory public payment, tax sovereignty, tax policy, legislative discretion, economic basis for taxation
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A.I. Savitskiy Progressive income taxation for individuals: prospects for Russia and foreign experience
The author tries to draw attention to the theme of progressive taxation and to attract the widest circle of lawyers, financiers and economists to reasonable and constructive discussion. According to the author, lawyers untimely moved back from this issue what gave rise to the manipulation of public opinion by the advocates of flat rate. Notwithstanding the issue lies in the spheres of social fairness, equality of opportunity and politics, the paper seeks for economical and legal grounds for the introduction of progressive income taxation, having relied on historical experience and foreign examples.
Keywords: income tax, progressive tax rates, flat tax, fair taxation, income distribution, equality
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L.N. Starzhenetskaya CFC taxation rules: OECD recommendations and Russian approach
The author undertakes a comparative analysis of the OECD recommendations on “Designing Effective Controlled Foreign Company Rules” as presented in OECD BEPS Action 3 Report with the current Russian CFC legislation, comparing their purposes, definition of a “controlling person”, CFC taxable income, application of substance analysis. In the author’s view, currently, the Russian CFC rules while being consistent with the OECD’s recommendation on a broad applicability of CFC, are not strictly speaking “targeted anti-avoidance measures”. While providing for a very broad definition of CFC, and defining a “controlling person” starting from the shareholders having 10%+ in the CFCs, the Russian CFC rules do not provide for “actingin- concert” and “related party” test and do not include provisions on substance analysis. The author also analyses recent amendments adopted to the Russian CFC Law, and comes to the conclusion, that although the amendments are favouring the taxpayer, they do not significantly change the substance of CFC legislation in Russia.
Keywords: controlled foreign companies (CFC), CFC taxation, OECD, BEPS Project, Russian CFC legislation, targeted anti-avoidance rules, definition of a controlling person, CFC income
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Press Release


Discussion Board

I.A. Klepitskij Market manipulation: the law does not work
The Russian law on criminal sanctions for market manipulation is analysed in comparison with the same American and European rules (rule SEC 10b-5, “openmarket manipulation” theory, Market abuse directive 2014, Market abuse regulation 2014). The statistics allows us to conclude that the Russian rule on criminal sanctions for market manipulation does not really work. The reason for this is the insufficient quality of the law which does not complement the rule on fraud but duplicates it. Our market manipulation prohibition is not comprehensive. Both this prohibition and the rule of criminal law, based on it, require serious revision, it is necessary to defeat the gaps and make the law clear. However, establishing of criminal liability for careless market manipulation in Russia seems premature.
Keywords: market manipulation, criminal liability, gaps in the law, casuistry
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Theory and practice

S.A. Belov, N.M. Kropachev What has to be done to make the Russian language national?
The authors assess the contemporary legal requirements to use the Russian language as national language of the Russian Federation, basing on the analysis of the general aims of legal declaring of a language as a national language, namely solidarisation of the nation and providing the common communication space in the society. The inquiry of the Russian legislation and practice of its enforcement shows a number of defects in the regulation of these matters in Russia. The authors suggest legal measures to rectify these defects following the aims of proclaiming a language to be the national language.
Keywords: national language, official language, Russian language, legal certainty, the legislation on national language, norms of national language
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A.P. Tenishev, V.N. Dianov Administrative liability for anticompetitive behaviour and draft code of administrative offences
The paper looks at the improvement of regulatory framework for administrative liability for antitrust offences in light of both the application of current Russian Code of Administrative Offences and the rules formulated in the draft Code, which is now considered by Russian State Duma. The authors suggest adopting new procedure for turnover fine calculation, rejecting the idea of liberalisation of liability for anti-competitive agreements with authorities, and defining sanctions for illegal coordination of economic activities clearly.
Keywords: administrative liability, antimonopoly infringements, draft Code of Administrative Offences, turnover fine
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A.S. Ispolinov, O.V. Kadysheva The use of pre-trial dispute settlement procedure in the courts of the Eurasian integration
The paper considers the mechanism of pre-trial dispute settlement in the practice of the Court of Eurasian Economic Community and the Court of the Eurasian Economic Union. The authors see the pre-trial dispute settlement procedure as a separate stage seeking for appropriate legal basis, uniform application and interpretation. The current practice of its application shows that the views of the institutions of the Eurasian integration regarding the role and value of this procedure are obviously controversial. This undermines the efficiency and legitimacy of dispute settlement mechanism in the Eurasian Union.
Keywords: pre-trial procedure, the Court of the Eurasian Economic Union, the courts of the Eurasian integration, EEC
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S.S. Zavriev Does civil procedure allow a trial in absentia in the court of appeal?
On the basis of case study, the author substantiates the idea that the court of appeal should have a possibility to hold a trial in absentia providing that the conditions foreseen by the law are met, and the judgment of a court of first instance is reversed so the court of appeal is acting as a court of first instance.
Keywords: steps in civil procedure, trial in absentia, court of appeal
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V.V. Baibak General conditions of liability for breach of obligations as of article 401 of Russian civil code: old rules in the new context
The article contains commentary to the general rules of the Civil code on the responsibility for breach of obligations. Although those rules were not modified in course of recent reformation of the law of obligations, they are analysed in the context of new rules of the Civil code. The commentary deals with the issues of fault for breach of the obligations, cases and force major and others.
Keywords: fault, casus, force major
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B.V. Tatlybaev The methods for calculation of damages caused by the unlawful use of inside information (insider dealing) under US and Russian law: comparative legal analysis
The author examines basic principles underlying the methods for calculating damages caused by the unlawful use of the inside information established in the Russian and U.S. law, and compares these methods with the methods for calculating the so-called abstract damages set forth in the Article 393.1 of the Russian Civil Code.
Keywords: damages, inside information, the calculation of damages, abstract damages, unlawful use of inside information
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R.A. Budnik Implementation issues of creative commons licences in Russia
This article is dedicated to analysis of preconditions for development and worldwide use of Creative Commons (CC) license system. CC licensing system is based on legal formula of author’s right protection called «some rights reserved», which is deferent to standard legal formula of copyright as known as «all rights reserved». We provide the description of CC licenses’ terms, their purposes and the legal classification of licenses. It is shown that recent supplementation of Russian Civil Code by the novel institute called «open license» in the Article 1286.1 is nothing other than an attempt to receipt all the CC license system in the form of one generalized rule of law. We have emphasized the positive impact of the novel rule on the character of Russian intellectual property rights legislation. We have fulfilled a detailed analysis of low efficiency of the open license instrument in its present form for practical use at present and underline the lack of the situation’s improvement prospects in future. The author proposes to implement the CC licensing system to the national legislation on intellectual property rights in full fledge form without exception by the direct reference to official text of CC licenses in Russian language.
Keywords: copyright, open license, free licenses
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O.A. Khazova Some aspects of interpretation of “wrongful removal” and “wrongful retention” concepts in context of the Hague convention on the civil aspects of international child abduction
The paper looks at wrongful removal and wrongful retention — two types of child abduction identified by the Hague Convention on the Civil Aspects of International Child Abduction of 1980 (Russia has acceded to it in 2011). The author explains the difference between these concepts and the reasons why it is important to accurately fix the date of the wrongful removal (retention). The author also focuses on one of the major components of wrongful removal (retention), which is consent of a person (parent) from whom the child has been presumably abducted to his/her removal (retention). If a parent does not make any objections, neither removal nor retention can be seen as child abduction. The paper also presents a brief analysis of the Neustadt case defined by English courts as “the anatomy of an abduction”.
Keywords: child abduction, Hague Conventions on cgildren, cross-border disputes over children, parents and children
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