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ARCHIVE FOR 2017    RUSSIAN

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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O.L. Vasilyev Amendments to the constitution of the Russian Federation and the change of the prosecutor’s role in Russian criminal proceedings
The present paper analyses the amendments to the Constitution of the Russian Federation regarding the legislative regulation of public prosecution service and subsequent amendment to the criminal procedural law. Noting the direction of the constitutional reform of the prosecution service to enhance the status of the latter, the author offers ways of improving Сriminal Рrocedure Сode to strengthen the role of the prosecutor.
Keywords: prosecution service, constitutional status of prosecution service, prosecutor in criminal process
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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

S.Yu. Filippova The road to hell is paved with good intentions: thoughts on the changes of the article 3 of Russian civil code
The paper considers the procedure for bringing changes into the Civil Code and the theoretical validity of the novelties that impose a ban on the introduction of changes to the Civil Code by package including amendments to other federal laws. The author gives both an optimistic and pessimistic forecast about consequences of such changes for the development of civil law as a whole.
Keywords: amendments to the Civil Code, sources of civil law, the legal force of a law, conflict of the Civil Code and specific laws
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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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