ARCHIVE FOR 2017 RUSSIAN
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Март 2017
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
O.M. Oleynik Theoretical issues of prosecutor’s “general supervision” The paper analyses the changes to the Law on the Prosecution
Service, which came into force on March 18, 2017.
They are mainly related to the establishment of deadlines
and procedures for conducting prosecutor’s checks on
companies’ activities. The author critically assesses these
changes and shows their apparent insufficiency caused
by theoretical problems connected with the definition of
the subject of prosecutor’s supervision. The paper also
explores the correlation between the prosecutor’s supervision
and the state control in the historical and comparative
legal aspect.
Keywords:
prosecutor’s supervision, state control, public prosecutor’s checks, timing of inspections, frequency of inspections, prosecutor’s “general supervision”, subject of prosecutorial supervision
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E.R. Ergashev Compensatory activity of Russian prosecution service: reality and prospects The paper deals with the compensatory activity of
the prosecution service. The author regards it as a pillar
of prosecutorial activity that ensures the enforcement of
Russian Constitution and federal laws. Being engaged
in compensatory activity, the prosecutor intrudes into
the legal sphere of the supervised state authorities,
though he is no substitute for them. Compensatory means
of the prosecutor’s response enable the prosecutor
to improve law enforcement activity. Thus, the author
suggests that the grounds for defining the compensatory
component as a part of the prosecutorial activity are
already present in the current law.
Keywords:
prosecutor’s supervision, compensatory activities of Russian Prosecution Service, objectives and powers of the prosecutor, legal means, principle of non-interference in business activities, principle of the non-substitution of state authorities
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E.A. Melnikov Prosecution service in criminal proceedings: global trends The paper is focused on the last tendencies of changing
the place and role of the public prosecution service on
pre-trial stage of criminal procedure. The author shows
that in the majority of the developed nomocracies
the place and role of the public prosecution service are
gradually strengthening as a result of both expansion of
prosecutorial discretion and reinforcement of the role
of police investigation carried under the prosecutor’s
control. However, the procedural status of prosecutor in
Russian criminal proceedings lately has been consistently
weakened and remains uncertain.
Keywords:
prosecution service, prosecutor, prosecutorial supervision, public prosecution, criminal proceedings
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S.A. Khalatov On the prosecutor’s role in civil cases: theory and courts practice The possibility of one person to take legal actions to protect
rights, freedoms and legal interests of another person
is represented as an exemption from the general rule of
recourse to the court for individual protection. The most
vivid example of it is prosecutor’s participation in civil cases.
While exploring this function of prosecutorial activity,
the author pays attention to changing scope of the term
“public interest” which should be protected by the prosecutor
in civil (arbitrazh) process, and concludes that Russian
legal approach to the performance of this function is not
logical, uniform and consistent enough.
Keywords:
prosecutor, public interest, civil procedure, arbitrazh procedure, jurisdiction, derivative suit
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Judicial practice. Comments
A.A. Arutyunyan Plenary resolution of the supreme court of the Russian Federation “on the application of the legislation on the procedure and grounds for exemption from criminal liability”: recent changes In November 2016, shortly after the adoption of amendments
to the criminal and criminal procedural legislation
regarding the grounds and conditions for exemption from
criminal liability, the Plenum of the Russian Supreme Court
issued a resolution clarifying the procedure for the application
of judicial fine as a criminal measure. Judicial fine as
a ground for exemption from criminal liability has recently
appeared in the Russian legislation, so current practice of
its imposing is rather vague. Therefore, the clarification
given by the Plenum is of great importance. The paper
proposes the analysis of the relevant clarifications and
comments on their practical application.
Keywords:
judicial fine, exemption from criminal liability, termination of criminal case, termination of criminal prosecution, grounds and conditions for termination of a criminal case, first crime record, compensation for harm
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Discussion Board
Press Release
Theory and practice
S.A. Belov, N.M. Kropachev, M.A. Revazov Judicial control over compliance with the norms of contemporary Russian literary language Federal law on the official language of the Russian
Federation demands that Russian literary language be used
in the advertisement, in newspapers and TV, on the scene
and in workflow. The authors have found more than
200 judicial decisions concerning discussions about norms
of contemporary Russian literary language, their revealing,
and correspondence of a particular word or expression
to them. The formal point of view presupposes that only
the dictionaries enlisted in a special roll by the Ministry
of Education and Science of the Russian Federation
are the sources of these norms. Four dictionaries were
included by the Ministry in the roll in 2009, but the analysis
of judicial practice shows that this is not a proper solution
for handling possible disputes. The roll of the dictionaries
obviously demands for corrections.
Keywords:
official language of the Russian Federation, Russian language, monitoring of law-enforcement practice, norms of contemporary Russian literary language
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T.S. Boyko Liability of a shareholder to another shareholder The paper concerns the topic which is not frequently
discussed among Russian legal scholars due to unknown
reasons — in which cases a shareholder can be directly
liable to another shareholder. Russian law provides
for a derivative claim as the main option to protect
the interests of shareholders but this remedy is not
effective in practice especially with regard to the interests
of minority shareholders and in the context of non-public
(close, private) companies. At the same time this topic is
deeply discussed abroad. American and English scholars
and courts have elaborated approaches to distinguish a
direct claim from a derivative claim and have enunciated
exceptions for non-public (close, private) companies as
well as for some specific circumstances in which using
a derivative claim leads to unfair results. On the basis of
the developed foreign countries experience, the author
suggests to implement into Russian law some of the foreign
ideas so that to provide efficient protection for the interest
of minority shareholders in Russia.
Keywords:
derivative claim, direct claim, protection of minorities’ interests, shareholder liability, non-public (close, private) company
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A.S. Likhanov, A.G. Sogbatyan Shadow director’s liability for losses inflicted to the corporation The paper analyses issues of controllers’ (shadow directors)
liability. The topic is especially relevant to Russia as
a country with concentrated corporate ownership and,
hence, usually weak and servient to a majority shareholder
management. The authors argue that Russian legislation
provides enough normative basis to held controllers liable.
However, courts are reluctant to apply the statutory rules.
The authors assert that the future of shadow director’s liability
is directly dependent on shareholders’ fiduciary duties
concept.
Keywords:
shadow director, rational apathy, fiduciary duties, director’s liability
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T.S. Krasnova Types of easements in the modern Russian law The paper provides an analysis of the typology of
easements made by the dominant Russian legal doctrine
and proposes their revised typology. Using utility and
dogmatic arguments the author arrives at the conclusion
that there is a need to introduce easements over private
and public immovable properties, following permissive
and permissive-imperative procedure as well as in favor
of particular subjects of civil law, specific categories of
subjects, any number of unspecified subjects.
Keywords:
easement, easement types, encumbrance of the right of ownership to immovable property, infrastructure lines
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E.N. Tulaeva Non-compete clauses in M&A transactions The paper is focused on non-compete clauses in M&A
transactions. The author explains why such clauses are
included in the agreements, gives a detailed overview of
the regulation of non-compete clauses in the European
Union and suggests how antitrust regulations regarding
non-compete clauses in M&A transactions can be
improved in Russia.
Keywords:
non-compete clause, M&A transactions, antitrust regulations
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Foreign experience
D.V. Kniazev United States magistrate judges: legal status, duties and settlement activities in civil cases There is little or no information about United States
Magistrate Judges in Russian-language legal literature.
This paper attempts to fill this gap and intends to
examine legal status of the office of Magistrate Judges,
their role in civil proceedings including settlement
activities in civil cases. Additionally, relevant provisions
of Federal Magistrates Act of 1968, local rules of federal
district courts and case law have been analysed. The
paper demonstrates that unlike federal district judges,
magistrates, being federal judges, are neither appointed
by the President of the United States, nor confirmed by
the Senate. They are not a separate Article I judges and
have no jurisdiction of their own. The office of United
States Magistrate Judge today is an integral and absolutely
necessary component of the federal District Courts, which
gives each District Court flexibility to address particular
workload needs. Results of the research can be useful for
setting up Russian system of court-annexed settlement
and pre-trial proceedings. The author proposes, as an
experiment, to establish “quasijudicial” officials with
the same functions as US Magistrate Judges in selected
regions of the Russian Federation, several principles of
functioning of these officials are suggested.
Keywords:
civil procedure of the USA, United States Magistrate Judges, reducing caseload, judicial dispute resolution, pre-trial
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