ARCHIVE FOR 2018 RUSSIAN
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Сентябрь 2018
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.V. Shamraev Electronification of Letters of Credit: International and Domestic Regulatory Developments The trade finance industry is becoming one of the areas of
most active digitalisation, especially with the development of
blockchain projects. Creating an effective legal framework to
provide adequate solutions for digital transactions and electronic
filing, including under a Letter of Credit, is an urgent
task for the international community and individual jurisdictions.
The article describes regulatory developments using
documents produced by the International Chamber of Commerce
and UNCITRAL, as well as amendments proposed by
the Bank of Russia to its Regulation on Money Transfer Rules,
No. 383-P of 19 June 2012.
Keywords:
payment by letter of credit, electronic filing, blockchain
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T.S. Mikoni Legal Regime of the Joint Account This article touches upon novelties in the regulation of joint
bank accounts (Article 845 Clause 5 of the Civil Code of
the Russian Federation). Particular attention is given to the legal
status of funds in the joint account along with the rights
and obligations of the joint account holders. The author also
analyses special features of the spouses’ joint account.
Keywords:
bank account agreement, joint account, plurality of account holders, rights to funds, disposal of funds in joint bank account, spouses’ joint account
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A.A. Vishnevskiy Financial Attorney vs Financial Ombudsman: Effectiveness of Institutional Structures for Protecting Consumers of Financial Services The article considers the fundamentals of a newly established
office of the Financial Attorney for the Rights of the Consumers
of Financial Services (Federal Law of June 4, 2018
No. 233-FZ). The analysis is conducted in the light of comparison
of the Financial Attorney with the fundamentals of
the offices of financial ombudsmen widely used for consumer
protection in the financial markets in many countries. Considering
from comparative legal perspectives the basic features
of these two offices, the author comes to a conclusion that
the Financial Attorney in the Russian Federation — in the way
established by the Federal Law — will not be able to perform
the role comparable to the role of the financial ombudsmen
in European jurisdictions. Therefore, the legal regulation of
the bank-customer relations in Russia is still having the substantial
gap which theoretically might be filled in if the financial
ombudsmen get legal recognition from Russian banking
associations.
Keywords:
financial ombudsman, financial attorney, consumer protection, consumer in the financial market, bank-client relations
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I.F. Ruderman Certain Legal Aspects of International Payment Systems This article is devoted to the study of the most topical issues
in the regulation of the creation and operation of international
payment systems. The author analyses the monitoring procedure
for international payment systems, which, as a rule, is
carried out by the central bank of the country where the payment
system is incorporated, paying particular attention to
the life cycle of the payment in the system and the moment of
fulfillment of mutual obligations by participants in the system,
the payment system’s contractual framework essential for
mutual rights and obligations of all participants, lien issues,
as well as the correlation between the legal infrastructure of
the international payment system and payment technology.
Keywords:
international payment systems, Bank for International Settlements, cross-border money transfer, multi-currency settlements
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R.A. Zhirnov Taxation of Personal Income in the Form of a Coupon and (or) Discount From Rouble-Denominated Circulating Russian Corporate Bonds The article deals with the statutory regulation of the taxation of personal
income gained by natural persons in the form of a coupon
and (or) discount from rouble-denominated circulating Russian
corporate bonds. The author points out that the substitution of
two notions such as — ‘Circulation of Securities’ and ‘Circulation
of Securities in the Formal Securities Market’ — made by the Ministry
of Finance of the Russian Federation cannot be deemed acceptable.
The author uses the mechanisms of strictly formal, systematic,
historical and target-setting interpretation of the text of
Russian Tax and Civil Laws, and therefore shows the inconsistency
between the law-enforcement position held by the Ministry
of Finance of the Russian Federation and the legislative
will, aims
and objectives. Such inconsistency may have a negative impact on
the process of attracting private investments to Russian economy
as described herein. The author concludes by stating that the legislation
of the Russian Federation currently in force exempts from
taxation on personal income within the established limits the interest
(coupons or discounts) for any outstanding issues of bonds
denominated in roubles issued by Russian legal entities after
January 1, 2017, irrespective of the authority
(organisation) that
registered the issue, of the type of placement, of the admission of
securities to the listing, of the delisting,
of the public or non-public
status of the issuer (existing during the period of placement and
circulation of securities). The article expresses the author’s private
opinion published for scientific purposes primarily. The stated
conclusion and its reasoning are not the proposition of the
LECAP Law Firm and they should not be interpreted as a formal
legal opinion or advice for clients.
Keywords:
bonds, circulation of securities, formal securities market, Russian commercial bonds, personal income tax
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Discussion Board
L.V. Sannikova, Yu.S. Kharitonova Legal Essence of New Digital Assets Changing economic situation and active legislative activity in
the sphere of regulation of the digital economy spurs numerous
discussions on perhaps the main new phenomenon for
turnover — the digital asset. The authors set out to show
the legal essence of these objects, which distinguishes them
from all the objects of civil turnover known to the law, the legal
nature of which is defined and enshrined in the law. Digital
assets have such features that allow to put them apart
in the system of objects of rights, which entails the need to
develop new legal mechanisms of regulation, different from
the existing
ones and oriented to the circulation of the material
world.
Keywords:
digital asset, digital asset characteristics, cryptocurrency, token, Big Data, account, domain name
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Yu.V. Kuznetsov Cryptoassets as Definitive Securities The paper focuses on the issue of legal status of a broad class
of cryptoassets (cryptocurrencies, tokens) realized as distinct
units or “coins” in contrast to account balances. This kind of
cryptoassets is functionally equivalent to some types of definitive
securities defined in Russian law, such as promissory
notes or order commercial papers, the difference being primarily
in the information medium. It makes possible to define
the legal framework for this class of objects without introducing
of new civil law objects in the Civil Code of the Russian
Federation. All it takes is to repeal the rule that definitive security
must be a corporeal thing and to modify the definition
of “electronic documents” in the Russian information law and
the relevant requirements for them.
Keywords:
cryptoasset, cryptocurrency, token, definitive security, civil law object
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A.V. Sazhenov Cryptocurrencies: Dematerialisation of Legal Category of Things in Civil Law This article focuses on the legal nature of cryptocurrencies in
light of the existing legal institutions. An attempt is made to
determine the legal nature of cryptocurrencies. The main issues
being considered include possession, transfer and protection
of rights to cryptocurrencies. The qualification of the
rights to cryptocurrencies as rights in rem, the general concept
of money and objects of the civil rights are also covered.
This analysis leads to the conclusion that cryptocurrencies
should most likely be considered as things in the modern legal
system.
Keywords:
cryptocurrencies, tokens, objects of civil rights, property, property rights, ownership, thing, possession, money, tradition, assignment, vindication, tort, condictio, absolute rights, numerus clausus
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Judicial practice. Comments
P.A. Skoblikov Ruling of the Plenum of the RF Supreme Court on Asset Forfeiture: A Critical Review This article offers a critical review of Ruling of the Plenum of
the RF Supreme Court No. 17 of 14 June 2018 on asset forfeiture
in criminal proceedings. It looks at some general problems
associated with the interpretive power of the Supreme Court.
The analysis of Plenum rulings is followed by suggested approaches
to the following private issues: competing interests
of the victim seeking damages from the offender’s assets and
those of the State seeking forfeiture of the same assets; confiscation
of criminal proceeds and instrumentalities without a
criminal conviction; confiscation of instrumentalities of reckless
crimes and assets that were intended for criminal activity
but were no longer involved; forfeiture of assets the defendant
transferred to third parties etc. Ruling of the RF Constitutional
Court No. 5-P of 7 March 2017 is further analysed insofar as
it gives legal grounds for forfeiture of the defendant’s assets
without a criminal conviction. The author believes that this
ruling was decisive for the Plenum of the RF Supreme Court
in determining a few aspects of the matter at hand.
Keywords:
asset forfeiture, interpretation of statutory provisions, ruling of Plenum of RF Supreme Court, the RF Constitutional Court errors, protection of victim’s rights, principle of legality, principle of separation of powers
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Theory and practice
N.V. Kozlova, S.Yu. Filippova Qualification of Suretyship Relationships under Civil Law: Basis, Substance and Legal Nature This article looks at suretyship relations between the creditor,
surety and debtor. It analyses the basis of these relationships,
their legal nature, and the parties’ rights and obligations.
The authors conclude that the surety and the debtor enter
into a related relationship as the contract is signed between
the surety and the creditor. At the same time there is a common
collateral obligation with participatory plurality between
the creditor, on the one hand, and the debtor and the surety,
on the other, where the obligation between the debtor and
the creditor is primary and the surety’s undertaking to pay is
secondary.
Keywords:
suretyship, third party, debtor, creditor, surety, ensuring performance, obligation, civil liability
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O.A. Zharkova Transaction Form for Ownership Interests n Farmland The author compares the term ‘interest in land’ with the term
‘ownership interest in land’ and concludes that an ownership
interest in farmland will not necessarily constitute an interest
in land. Therefore, any transaction involving disposal of
ownership
interest in land needs to be notarised.
Keywords:
interest in land, written, notarised, void transaction
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D.G. Kopylov The Legal Regime of Treasury Shares and Their Legal Fate This article deals with peculiarities of the legal regime of treasury
shares and issues related to their legal fate. The author
gives special attention to the identification and analysis of
those problems that arise in connection with the realisation by
a company of its shares and offers possible solutions thereof.
The author comes to the conclusion that shareholders of a public
company should enjoy a pre-emptive right of purchasing
shares, which are realised by the public company to the public,
in proportion to a number of shares of the relevant category
(type) belonging to each of them. Additionally, the realisation
by a public company of treasury shares should be allowed only
for specified purposes and be accompanied by the disclosure
of information on a transaction and its purpose. Any transaction
involving realisation by the company of treasury shares in
favour of a particular person needs preliminary consent from
the company’s general meeting of shareholders.
Keywords:
public companies, private companies, treasury shares, realization by a company of its shares
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M.B. Napso Improved Efficiency of Administration of Taxes, Levies and Insurance Payments: Economic and Legal Aspects In the light of the declared tax amnesty the economic and legal
consequences of a failure to perform an obligation on payment
of tax is a very relevant question to study. The problem
is considered in the context of tax compliance from the point
of view of administrative costs, taking into account the latest
legislative changes and initiatives, and through the prism
of a legal design of taxes, levies and insurance instalments.
The author concludes that the consequences of non-payment
of taxes, levies and insurance instalments are conditioned by
their legal nature and fiscal purpose. As a result, certain ways
are suggested to reform the Russian tax system.
Keywords:
consequences of non-payment of taxes, levies, insurance instalments, tax amnesty, tax administration, decrease in budgetary costs, fiscal load
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A.V. Konovalov Roman Legal Heritage and Principles of Law The author analyses how the principles of law are understood
in Roman law and the influence of such understanding on
subsequent development of law in different legal systems.
Drawing on available excerpts from the Digest and scholarly
articles by prominent researches in the field of Roman
law, e.g. I.B. Novitskiy, D.D. Dozhdev and others, the author
proves that certain common approaches to solving practical
legal problems existed in Roman law. Presumably those approaches
can be considered as prototypes of modern understanding
of the principles of law. The author also argues that
one of the most significant achievements of Roman law and
the major reason for its widespread reception was the method
of juridical abstraction.
Keywords:
Roman law, juridical abstraction, jus honorarium, aequitas
