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ARCHIVE FOR 2018    RUSSIAN

Апрель 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

I.V. Reshetnikova Prejudice and Burden of Proof in Modern Arbitrazh Litigation
The paper analyses the impacts of unreasoned court decisions on claim preclusion and those of a legal presumption of good faith on the burden of proof. The author addresses the most topical issues and the most frequent judicial errors caused by the misapplication of prejudice provisions and legal presumptions in certain cases.
Keywords: prejudice, burden of proof, presumption of good faith, arbitrazh litigation
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A.T. Bonner Circumstantial Evidence in Civil and Arbitrazh Litigation: Theoretical and Practical Problems
This paper discusses controversial issues in the judicial evaluation and doctrinal interpretation of circumstantial evidence. It is demonstrated that neither judges nor legal process scholars can always comprehend the nature of distinction between direct and circumstantial evidence, which may result in serious evidentiary errors. In particular, some researches have been unsuccessful in their critique of the connection theory that serves as a methodological basis of the distinction between direct and circumstantial evidence; while the attempts at giving different “weights” to these two types of evidence have been found unreasonable. Certain court decisions are cited to confirm the conclusion that direct evidence cannot and should not take an a priori precedence over circumstantial evidence. The term “evidentiary standard”, which is currently used in most cases, presumably brings nothing new. Therefore it should differ somehow from the one which is used in criminal cases. The “beyond a reasonable doubt” standard is less appropriate to civil cases than the balance of probabilities or the preponderance of probability. And the substantial evidence standard, which applied for a time, is essentially equivalent or at least closely corresponds to the modern term “preponderance of probability”.
Keywords: proof in civil and arbitrazh litigation, circumstantial evidence, direct evidence, connection theory, factual theory, substantial evidence, standard of proof
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M.Z. Shvarts Revisiting Privilege and Evidence in Civil Litigation
This paper addresses the issue of admissibility into evidence of sound and video recordings of informal conversations made without the consent of the persons involved and in breach of the law. Such evidence has been held to be inadmissible in ensuring the legal protection of privilege for private communications that flows from the constitutional guarantees of human dignity. The author concurs with the relevant decisions by the Russian Supreme Court but criticises their reasons. The increasing use of sound and video recordings as evidence in civil proceedings requires careful elaboration of a statutory regime for privileged communications.
Keywords: sound recordings, video recordings, inadmissibility of evidence, personal privacy, privileged communications
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A.V. Ilyin A Non-Exclusive List (Numerus Apertus) of Means of Proof and Admissibility of Evidence
The constitutional rule of admissibility of evidence requires an exclusive list (numerus clausus) of means of proof to be incorporated into the procedural law. This creates a system of rules that entitle the court and other participants in the process to extract information from the source; any violation of such rules leads to a ban on using this evidence. Owing to the directness principle, which is based on the Constitution, ‘other documents and materials’ that the court cannot obtain directly information from may not be taken as independent evidentiary facts. The availability of a non-exclusive list of means of proof, while the list of means of evidence allows for ‘other documents and materials’ with no specific meanings, enables the participants in the process to provide whatever information to the court, thereby destroying the system of admissibility of evidence.
Keywords: proof, means of proof, mode of examining evidence, admissibility of evidence
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A.V. Yudin Evidence and Proof in Adherence to Legal Positions in Judicial Practice in Civil Cases
Consistency in the application and interpretation of legal rules by the courts of general jurisdiction and arbitrazh courts implies extensive reference to higher court decisions for proof in cases with similar factual circumstances covered by a legal position expressed in previous cases. The use of such evidence creates new realities in evidential matters for the persons involved in a case and for the court. This article discusses the status of such evidence, distribution of the burden of proof, deference to and denial (overcoming) of legal position in like cases, and the reasoning of judgements relying on the legal position in a similar case.
Keywords: legal positions, judicial practice, judicial interpretation, consistent application of law, proof in civil and arbitrazh litigation, facts in issue, similar cases
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E.A. Nakhova The Problems of Using Electronic Evidence in Civil Litigation and Administrative Law Proceedings
The paper highlights theoretical and practical issues in using the electronic evidence in civil litigation and administrative law proceedings. It exposes the difficulties courts have in adducing electronic evidence in proceedings and assessing its admissibility and reliability. It focuses on the challenges in improving procedural rules for electronic evidence and offers ways to overcome them.
Keywords: proof in civil litigation, proof in administrative law proceedings, electronic evidence
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Discussion Board

I.A. Klepitskij Dangerous Reforms: Punishments for Cartels and Leniency Programmes
Reforms of the Russian anti-cartel legislation include the infiltration of legal institutions developed abroad. Therefore, the learning of foreign experience is of great interest. Particularly relevant is the US leniency policy that reinforces sanctions and grants amnesty to the first applicant to denounce the cartel. The comparative research leads to the conclusion that this experience is not used in the best way. On the one hand, the errors of legislative techniques create obstacles of law enforcement. On the other hand, the piecemeal improvements in the draft legislation prepared by the Federal Antitrust Service entail new risks. These include: yet another bureaucratic leverage over businesses; corruption-driven crime rates; diluted standards of proof in criminal proceedings, likely to be extended from cartels to other crimes; and, finally, increased risk of baseless prosecution for economic crime.
Keywords: competition law, cartel, punishment, leniency programmes
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A.A. Ivanov “Soviet” “Legal” “Science”: The Road to Law
This paper takes a closer look at the definition, historical development and distinctiveness of Soviet legal science as the main source of science of law in Russia. It critically analyses Soviet legal science emphasising that it was more like part of the Marxist-Leninist ideology than real science, which had social and economic elements on top of legal knowledge. There are three pivotal periods in the history of Soviet legal science that coincided with specific symbolic events. In the first stage, the laws and legal institutions of the Russian Empire were abolished (Red Period). The second stage was a departure from the revolutionary philosophy of law (Yellow Period). Finally, the third period brought some diversity in ideology and legislation (Blue Period). The key features of Soviet legal science included principles of Marxism-Leninism, sociologicalisation of law, quotemanship, dogmatism, and isolationism.
Keywords: Soviet legal science, socialist legal system, sociologicalisation of law
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A.S. Vlasova, M.Ye. Loshkareva, N.M. Udalova Legal Entity and Its Liability: from Fictitious to Real Personality in Legal Relations
On December 8, 2017 the Constitutional Court of the Russian Federation adopted Resolution No. 39-P. It states that individuals can be held liable for damage to the budget arising from corporate tax offenses. In the authors’ opinion, the explanations by the Constitutional Court of the Russian Federation have accentuated the problem of independent legal entity’s existence. So, the paper examines theoretical and practical issues of the essence and responsibility of a legal entity. The authors made an analysis of doctrinal researches, regulations and judicial decisions concerning the problem. As a result, the approach to the legal entity’s evolution from fictitious to real personality is substantiated. There is a brief historical digression that reveals the process of company formation. The authors came to the conclusion that the fiction theory proves unjustified at the present stage of the development of economic relations. The article provides evidence of the concept of reality and independence of legal entity in Russian civil law. Due to the departure from this theory in the sphere of tax legislation, it is suggested to change the way of determining legal entity’s fault in tax relations.
Keywords: legal entity, fiction theory, independence of legal entity, origin of legal entity, corporate liability, legal entity’s fault, real person
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Theory and practice

A.V. Piyuk The Role of Courts in the Modern Criminal Procedure of the Russian Federation
The paper discusses the court’s role in achieving the purpose of criminal proceedings. Based on the fact that the criminal procedure rules are aimed at determining all relevant circumstances and deciding the case in a lawful, reasonable and fair manner, it is concluded that the purpose of criminal justice serves the truth. Achieving truth is a prerequisite for lawful, reasonable and fair adjudication. Its achievement is being hampered by the court’s lack of ability to request additional evidence where evidentiary gaps exist. In accordance with the provisions of the Criminal Procedure Сode, the court cannot on its own initiative order any evidence. Lack of evidence may result in wrong sentencing. Since it is the court’s function to impose a sentence and the court’s responsibility to ensure the quality of justice, courts must have all necessary legal means. It is proposed to give the court additional powers, in particular, the power to request the evidence that is important for a proper disposal of a criminal case and the power to call additional witnesses on its own motion.
Keywords: criminal procedure, the purpose of proceedings, the objective truth, preliminary investigation, evidence
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A.I. Dorokhov, O.V. Ignatyev Long-Term Contracts in the Context of the UNIDROIT Principles: A New Perspective on the Problem
The article deals with the main amendments to the UNIDROIT Principles of International Commercial Contracts related to long-term contracts. The authors conclude about an important practical application of the new provisions establishing a definition of “long-term contracts”, regulating certain issues of concluding and executing of agreements with open terms and contracts with evolving terms and setting up the obligations of the parties to act in good faith and cooperate between each other. Special attention is paid to the analysis of the current Russian legislation in order to identify similar regulation of long-term contracts for the purpose of developing recommendations.
Keywords: long-term contracts, the UNIDROIT Principles, agreements with open terms, framework agreements, contracts with evolving terms, concession agreement, public-private partnership, co-operation between the parties, post-termination obligations of the parties
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G.V. Tsepov Remuneration of a Board Member: Contractual Approach
Based on the contractual theory of the corporation the author sees relations between a board member and a company as management service agreement, and remuneration is seen as consideration. The complexity of economic system makes it difficult to figure out the “golden formula” to determine remuneration of board members which depends on the results of their activities. Consequently, it is advisable to determine the level of remuneration of board members taking into account the value of time spent by them. Since the decision to pay remuneration is specified in the contract between a company and a board member, it should be invalidated under para. 2 art. 174 of the Civil Code of the Russian Federation using the presumption of obvious damage. Obvious damage, in the absence of evidence to the contrary, is any remuneration at least twice higher than the value of similar services.
Keywords: board member, remuneration of a board member, contractual theory of corporation, obvious damage
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M.A. Kryukova Unjustly Enriched Claimant as a Ground for Refusing Restitution
This paper presents an overview of recent court decisions referring to the clarifications issued by the Russian Supreme Commercial Court in its Plenary Resolution No. 63 of 23 December 2010 “On Certain Issues Relating to Application of Chapter III.1 of Federal Insolvency (Bankruptcy) Law”, paragraph 16, to address topical issues arising from a simultaneous use by the claimant of several remedies to satisfy the same economic interest. As the law allows for parallel litigation over the same remedies in some circumstances, there can be two actions involving concurrently pursued remedies. In this scenario, the claimant may be unjustly enriched. The paper discusses problems concerning parallel litigation remedies and analyses contemplated solutions to a potential conflict.
Keywords: preventing unjust enrichment, concurrent remedies, counter-condictio defence, challenging transactions, restitution, enforceability of judgment, restitution of property and rights upon reversal of judgement
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Foreign experience

I. Tenberga “Salam” Transaction and Its Use in Islamic Banking for the Purposes of Pre-Delivery Financing
As recently as 30–40 years ago Islamic banking was privy to the Muslim world only. These days Islamic banking is a highgrowth sector of the finance industry that contributes to shifting away from interest-based and speculative transactions, enhancing the vote of confidence to financial organisations, facilitating prudent running of business activities, providing financial stability, etc. Islamic banking enables to raise the sources of financing being alternative to the classical lending of money without placing the financial policies of national states directly dependent upon the cost of borrowing. Equally with the efficient penetration of Islamic banking into financial systems of a number of countries, training programmes covering the area of Islamic finance are gaining popularity in the Western academic environment. Nonetheless the activities of Islamic banks persist to be insufficiently explored and poorly understood phenomena for the science of law in Russia. In the paper the author makes an attempt to examine the issues on the activities of Islamic banks, relating to the pre-shipment financing carried out through purchase and sale transaction with the advance payment known to Islamic law as a “salam” transaction.
Keywords: Islamic banking, Islamic bank, “salam” transaction, pre-delivery financing
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