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ARCHIVE FOR 2016    RUSSIAN

Ноябрь 2016

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

V.A. Belov Legal science (legal studies, jurisprudence). crisis and possible solutions
The paper is based on the points of the report made on June 27, 2016 in the Summer School of Kutafin Moscow State Law University. The author analyses interim (and unfortunate) results of 25 years of Russian modern jurisprudence development, and points few directions, which are to be taken to solve the crisis that Russian legal science is now facing.
Keywords: legal science, jurisprudence, legal education, scientific discussion
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A.V. Babich, N.A. Sheveleva, I.A. Vasiliev Academic mobility: current legal regulation and its practical application
Today’s processes in developing student and academic staff mobility may be pointed as an important dimension to the higher education institutions of the Russian Federation. Special consideration is given to mobility levels of international collaboration, cooperation of higher education institutions, increase of competitiveness of Russian higher education, and the inclusion of Russian educational organisations into international ratings. Further legalisation of academic mobility depends on adequate national legal regulation. The authors analyse the actual Russian legal regulation of this legal institution on the basis of the classic interpretation of academic mobility of higher education students.
Keywords: academic mobility, students, inclusion elements in educational process, exchange education
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D.V. Mazaev Participation of employers in the system of higher legal education and in training of lawyers
The paper describes problems of contemporary legal education and their solutions involving employers, which are public authorities, commercial and nonprofit organisations interested in cooperation with leading law universities and faculties of the Russian Federation aimed at improving the quality of modern legal education. It identifies a number of methods of interaction between employers and law universities and faculties, contributing to the development of competent approach to legal education. The author gives an example of successful cooperation between the Faculty of Law and employers in the framework of the Department of practical jurisprudence of the HSE.
Keywords: legal education, competence, employer, graduate, department of practical jurisprudence
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O.N. Fadeeva Assessing lawyer’s efficiency: for what?
The paper is devoted to legal KPIs showing law department performance. The author analyses the outcomes of a research undertaken by the Russian Corporate Counsel Association regarding current practice of taking litigation management as a KPI, which is adopted by Russian major companies. The paper considers possible means for measuring lawyers’ achievements, and demonstrates how they could be used either as motivation factor or as criteria for evaluating the overall performance of an organisation.
Keywords: professional legal services, KPI, litigation management, representation in court
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Discussion Board

P.A. Skoblikov Who has the right to use violence?
The paper deals with the analysis of profound changes to Russian legislation which were caused by the policy of decriminalisation of minor crimes and entered into force in the mid-summer 2016. The author analyses possible grounds for the decriminalisation of battery, correspondent conflicts of criminal and administrative procedure, and sanctions foreseen by the renewed law. Finally a forecast of how these changes could affect the administration of law and criminal landscape of Russia is given.
Keywords: battery, violence, decriminalisation, double prevention, criminal policy, repetition of crime, criminal punishment, administrative punishment, administrative investigation, conflict of laws
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Press Release

 

 

Theory and practice

I.S. Shitkina Major transactions and transactions with special approval procedure stipulated by the charter of a business entity
The paper focuses on amendments that were brought into corporate law by the Federal law of 3 July 2016 No. 343-FZ and are coming into force on January 1, 2017. The new law substantially amends, inter alia, the legal status of making major transactions and transactions with special approval procedure stipulated by the charter of a business entity (so called extraordinary transactions), including grounds for their qualification, grounds for their invalidation, and procedure for intra-group approval of these transactions.
Keywords: major transactions, extraordinary transactions, approval of the transactions, invalidation of the transactions, challenging the transactions, charter of the company, joint stock company, limited liability company
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A.V. Konovalov General principles of Russian civil legislation
The paper presents a sequential review of the general principles of civil legislation in light of their interrelation and mutual dependence. Referring to the role of the principles in the regulation of social relations, the author assigns them an independent function in at least three aspects. Therefore, these principles serve as (1) analogy of law, (2) criteria for assessing the behaviour of participants of legal relations, and (3) basis for the interpretation of legal rules in case they cannot be understood explicitly or without distortion of their true meaning.
Keywords: civil law principles, good faith, reasonableness, principle of reasonableness and equity, principle of noninterference in private affairs, equality of all forms of ownership, inviolability of ownership, freedom of contract
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V.A. Alexeev Public reliability of registry of real property rights: principle of operation or business of the future?
The author analyses the principle of public reliability of the register of real property rights, critically assesses the provisions of Article 8.1 of the Civil Code and proposes to specify the wording of this principle in the law.
Keywords: real estate, public reliability, a bona fide purchaser, vindication
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O.M. Oleynik Providing legal stability and certainty in the sphere of state control and supervision over business
The paper shows that the Russian legislation on state control and supervision over business activities does not meet such basic requirements as stability and certainty set for any law. For example, legal procedure for the conduction of prosecutorial inspection stays particularly uncertain and was not changed even after the Russian Constitutional Court had offered its recommendations. Therefore, aims of prosecutorial inspection mostly duplicate those of inspections carried out by other state bodies. The author cites a number of judicial cases and explains why prosecutorial inspections should be eventual.
Keywords: business activity, state control, state supervision, public prosecutor’s inspection, social value of law, stability of laws, legal certainty
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S.N. Egorkin, K.V. Zykova Contentious issues of acquiring and losing the status of non-resident for exchange control purposes
The authors examine aims, process of development and outcomes of changes to the currency legislation regarding the definition of the term “resident for exchange control purposes”. They criticise legal uncertainty, which leaves unclear whether people living abroad for more than one year, but making short visits to Russia, lose their status of non-resident for exchange control purposes. Having analysed court practice and decisions of the executive bodies the authors arrive at the conclusion that a shortterm visit to Russia cannot lead to the loss of non-resident status in spite of the decisions of Federal Service for Fiscal and Budgetary Supervision and Federal Tax Service of the Russian Federation.
Keywords: non-resident for exchange control purposes, currency legislation, currency control, currency regulations, continuous residence, permanent residence, loss of non-resident status

 

D.G. Kopylov Nonprofit organisations and public authorities
The present paper deals with forms of interaction between nonprofit organisations and public authorities. It begins with a short excursus to the domestic history of interaction between the state and the nonprofit sector, and then presents the analysis of theories explaining the differences in interaction between the state and nonprofit organisations. Each theory enables to explain the inclusion of the relevant provisions (for example, on the giving of tax benefits or grants to nonprofit organisations) into the foreign and Russian legislation on nonprofit organisations. The paper concludes with the analysis of specific forms of interaction between nonprofit organisations and public authorities.
Keywords: nonprofit organisations, public authorities, grants, social order
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Foreign experience

E.V. Galkova Transfer of title (sicherungsubereignung) according to German legal system
The paper focuses on Sicherungs bereignung, which is a German institution of transfer of title. The reform of Russian civil law was accompanied by the discussion of different ways to improve the system of security obligations, including transfer of title as security already known to Roman law and new to Russian legal system. The author analyses the legal nature of Sicherungs bereignung, rights and obligations of the parties, and the latest tendencies towards the development of Sicherungs bereignung in German judicial practice.
Keywords: comparative private law, property law, transfer of title as a collateral security, fiduciary transfer of title, transfer of title under condition, pledge
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