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ARCHIVE FOR 2018    RUSSIAN

Октябрь 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

G.A. Esakov Criminal Legislation and Corporate Legislation: Points of Interaction in a Nutshell (Constructs of Persons Who Commit Crimes)
The article analyses interaction between corporate legislation and criminal legislation as to defining persons who can be held liable for corporate crimes. There are several challenging points in current Russian case law. These include differentiation between public and private officials especially in light of a recent trend to enlarge the definition of public official; criminal liability of corporate top managers; and rules on criminal liability of persons who exercise factual control over the corporation. The author offers some guidance on these matters based on case law, corporate law and criminal law doctrine.
Keywords: corporate legislation, criminal liability, factual control, public official, private official, directors’ liability, members of the board
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V.M. Zaripov Topical Tax Liability Issues
This article puts forward most pressing issues for tax fraud prosecutions, proposes ways to solve them and provides recommendations to taxpayers. It describes criteria to separate tax avoidance and evasion from the so-called “tax fraud”. To ensure adequate protection of taxpayers’ rights against the risk of arbitrary criminal charges, the author suggests two filters for criminal proceedings — first, when the case is commenced and then when it is referred to the prosecutor.
Keywords: tax evasion, tax default, tax avoidance, shell company, commencement of criminal proceedings, discharge
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O.P. Pleshanova Public Liability vs Individual Insolvency
This article addresses a conflict between legislation on liability under public law (criminal liability and administrative liability) and the bankruptcy of individuals. Can bankruptcy result from fines and can it help discharge them? What takes priority in bankruptcy proceedings — State interest, the principle of inevitability of punishment (public Interest) or the creditors’ interests in private law? These questions and other aspects will be analysed by the author relying on both national and German jurisprudence.
Keywords: consumer bankruptcy, individual insolvency, economic crimes
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K.A. Barysheva Criteria for Distinguishing between Extortion and Compulsion to Make a Deal
There are a large number of opinions in criminal law science, devoted to the differences between Art. 163 and Art. 179 of the Criminal Code of Russian Federation. Court practice has not yet developed a unified position on the main criteria of difference between extortion and compulsion to make a deal despite the contradictions of corpus delicti. These factors influence the accurate classification of crimes and court decisions. There are not many criminal cases which are connected with compulsion to make a deal, most criminal offences are classified as extortion. Although Chapter 22 of the Criminal Code is most subject to change, the issue of improving Art. 179 has not yet been considered by the legislator.
Keywords: extortion, compulsion to make a deal, unilateral transaction, entrepreneurial activity, share in apartment, criminal liability, criminal law
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M.A. Mikheenkova Current Issues in Property Seizure in Criminal Proceedings
This article offers an overview of controversial issues concerning seizure of property in criminal proceedings, especially curtailment of the right to private property guaranteed by the Constitution. The author elaborates on several key aspects. These include: establishing a time frame for the seizure; applying constitutional guarantees to the thirdparty property to be seized; detailing the list of seized property and related restrictions; allocating storage and maintenance expenses; and disposition of seized property of the bankrupt owner.
Keywords: coercive measures, seizure of property, inviolability of private property, insolvency, bankruptcy
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Discussion Board

A.A. Ivanov Dealing with Law Dissertations
At present legal science is not at its best in Russia. Nonacademic incentives coupled with challenges in measuring scientific impact of contemporary legal studies devalue law dissertations in the eyes of the legal profession and the public at large. Root causes will be analysed, and some ways will be suggested to deal with the current situation, including through research networking evaluation. The author hopes his article will bring input into the discussion of anti-crisis solutions for legal science in Russia.
Keywords: crisis in legal science, law dissertations, academic degree, academic paper, citation index, research activity
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E.A. Leontyeva Professional Guarantees for Corporate Lawyers
The article raises the problem of the absence of legislative guarantees for the corporate lawyer´s professional activities and analyses the negative consequences of the conflict between private and public interests involved. The necessity of recognising the corporate lawyer activity carried out in the public interest is substantiated, and proposals are made to secure the legal professional privilege of corporate lawyers in the current legislation.
Keywords: corporate lawyer, public policy, counteraction against corruption, unconditioned discharge, relief, ensuring rule of law, professional guarantees
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Judicial practice. Comments

N.Ye. Krylova, O.V. Kostyleva Reclassification of Crimes: A Critical Analysis of Legal Positions of the Plenum of the Russian Supreme Court
This article offers an analysis of the legal positions of the Plenum of the Supreme Court of the Russian Federation as formulated in its Resolution No. 10 of May 15, 2018, “On the Application of Article 15(6) of the Criminal Code of the Russian Federation”, mainly regarding the legal consequences of reclassification of crimes to less serious offences.
Keywords: criminal law, crime classification, crime reclassification, Supreme Court of Russian Federation
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Press Release

 

Theory and practice

E.Yu. Borzilo Evolution of the Definition of “Dominant Position” in Russian Antitrust Legislation
The article covers evolution of the definition of dominant position focusing on the transformation of criteria applied. Dominance, in any market, inevitably results in limitation of the freedom to enter contracts; that is why the companies need to understand the essence of this notion to minimise the risks of potential implications. The author believes that notwithstanding the fact that initially the definition is based on qualitative criteria, quantitative criteria (ability to influence the market) are pursued by antitrust authorities but courts prefer the qualitative one (market share). The antitrust authorities did not succeed in their attempts to introduce the definition based on quantitative criteria, partly due to poor legal technique.
Keywords: antitrust legislation, competition, dominant position, quantitative criteria, qualitative criteria, dynamic approach, static approach
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S.V. Dedikov Regulatory Issues in Reinsurance as Part of Reform of Russian Civil Code Chapter 48 on Insurance
The article analyses the shortcomings of current legislation in terms of regulation of reinsurance contracts and resulting problems. It examines the issues that arose in the framework of the reinsurance regulation reform along with proposed amendments to the relevant rules of the Civil Code and sets out the arguments in support of the decisions.
Keywords: reinsurance contract, insurance, retrocession, bordereau, tantieme, enterprise risk
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B.R. Karabelnikov Arbitrability Once Again, or A New Song to an Old Tune
The Ruling of the RF Supreme Court Economic Division in the Mosinzhproject case following an application by the Supreme Court to the RF Constitutional Court was rendered on the basis of earlier Constitutional Court decisions explaining that arbitrability of a subject matter may be limited only by a ban established by the federal law. The Supreme Court now has accepted that position as well. Disputes stemming from transactions concluded under Federal Law No. 223-FZ on Purchases of Goods, Works, Services by Certain Categories of Persons may be submitted to arbitration without any limitations, since Russia´s federal laws do not contain a corresponding ban.
Keywords: arbitrability, state owned company purchases, Decision of the RF Constitutional Court No. 10-P
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I.N. Kashkarova The Principle of Preclusion in Civil Proceedings: to the Question of Retarded Stating by Third Parties Their Independent Claims Concerning the Subject of the Dispute
The article looks at the principle of preclusion in civil proceedings. It distinguishes between this phenomenon and preclusive sanctions as well as the estoppel principle as a means of stimulating consistent procedural behaviour of persons participating in the case. The effect of the principle of preclusion is reflected in situations where there is a dispute between the plaintiff and a third party about the right in the objective sense, because they claim the same object, and their claims follow from the same or similar grounds. The author comes to the conclusion that, in view of the effect of the analysed principle, in case of a late stating of the claim by a participant of the process, that is also a form of realisation of the subjective substantive right (the presentation of an independent claim regarding the subject of the dispute), such procedural passivity is capable of terminating this subjective substantive right. In turn, the procedural effect of the principle of preclusion consists in prohibiting the person who participated in the case previously considered by the court from submitting independent claims in a separate process, if the purpose of such a claim is actually to review the judicial act and to revoke its legal force.
Keywords: principle of preclusion, procedural risks, procedural behaviour, third parties, estoppel, exclusive sanctions
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T.N. Neshatayeva Dissenting Opinion as the Balance Point between Internationalism and Etatism
This paper aims to contribute to the legal discussion of the value and role of dissenting opinions in the jurisprudence of international courts such as the Court of the Eurasian Economic Union. The author demonstrates that the dissenting opinion as an institute plays a crucial role in the development of international judicial institutions. It helps find the balance point between a supranational (international) approach and an etatist (national) approach to interpretation of international law as well as guarantees transparency in the judgements of international courts, which is essential to supranational justice.
Keywords: dissenting opinion, EAEU Court, judgments of international courts, integrative law, etatism
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