ARCHIVE FOR 2019 RUSSIAN
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Апрель 2019
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.N. Vereshchagin Russian Judicial System: Roots and Prospects The article offers a certain interpretation of the essence
and nature of Russian judicial system. When was this
system devised, what are its origins? What does it inherit
from the Soviet era? How do Soviet legacies prevent us
from creating an independent and impartial court where
“mercy and truth reign”? How should the highest court
be organised? The author offers his answers to these and
other questions.
Keywords:
Russian judicial system, judicial reform
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L.V. Golovko Criminal Procedure in the Context of Permanent Judicial Reform The article analyses the theoretical uncertainty in the concept
of judicial reform and the impact of this uncertainty on
the development of criminal justice, which is generally
negative. The judicial reform gradually changes its essence
from the way of achieving long-term strategic results to
the method of permanent management of law-making in
the corresponding sphere. As a result, the very notion of judicial
reform is devalued, and all efforts — instead of stabilising
and optimising the criminal procedure system — are aimed
at mainly terminological resetting in the spirit of some purely
ideological innovations or at the introduction of institutions
with an extremely narrow perspective of implementation,
which does not and cannot lead to the desired practical results.
At the same time, there are still real institutional problems in
criminal proceedings that need to be solved.
Keywords:
criminal proceedings, judicial reform, permanent reform
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V.K. Mikhailov Some Problems in Judicial Empowerment Which Threaten Judicial Independence This article is conceived by the author as a continuation of
the research and regular publications covering various areas
of regulation of the status and activities of judges in the context
of ensuring their independence. However, the changes
introduced into the judicial system over the last years were
mostly aimed at strengthening institutional independence,
overlooking individual — judicial — independence. Experience
has shown, that the two are closely interrelated and cannot
be achieved separately. Therefore, of special importance is
the stage of judiciary formation, i.e. the process of judicial
empowerment of eligible candidates. The research identifies
problems of organisational nature related to the formation
of judicial bodies and those of functional nature revealing
ambiguity in the procedure for vesting judicial powers. It also
formulates proposals for overcoming current problems in
order to strengthen the guarantees of judicial independence.
Keywords:
judicial authority, court, principle of judicial independence, judicial appointments process, qualifying examination
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V.V. Yarkov Changing the Rules of Delimitation of Jurisdiction between Courts: New Words and/or New Solutions? The article examines conceptual and substantive issues related
to the exclusion of jurisdiction from the Civil Procedure Code
and the Arbitrazh [Commercial] Procedure Code. The author
justifies the need to preserve the concept of jurisdiction in
order to avoid confusion for the purposes of regulation and
enforcement. Moreover, the author analyses a new mechanism
for eliminating errors in the choice of the competent court, as
well as the issues of combating legal purism and the exclusion
of concurrent jurisdiction.
Keywords:
jurisdiction, competence, transfer of case, type of legal proceedings, legal purism
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E.V. Kudryavtseva, D.I. Smolnikov The Court’s Role in the Proof of Facts in the Light of Civil Justice Reform The authors explore the evolution of the adversarial
institution in Russian civil litigation, and the role of the court
in the proof of facts, including in the context of the recent
procedural reform. Based on this research, the idea is put
forward of a standardised definition of court as an active
party to the process, whose actions are aimed at an effective
litigation management rather than an independent
examination of the actual events of a case.
Keywords:
adversarial proceedings, civil proceedings, inquisitorial proceedings, evidence investigation
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O.P. Pleshanova Fakes Aside Hostels and the legislative process. — Protection of
citizens’ right to housing: tax wonders and mortgage
holidays. — High profile arrests. — Change of jurisdiction
in political trials. — Borrowing from foreign law in
corporate matters: first results. — Runet’s autonomy. —
Prohibition of fakes.
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Judicial practice. Comments
R.M. Yankovsky, S.V. Ilyin Case Law on Cryptoassets in Russia This article presents case law on the disputes involving
cryptoassets (covering the period from 2015 to 2018).
In analysing the case law authors subdivide disputes into
four groups: quasi-cash disputes; civil disputes involving
cryptoasset transactions; disputes within insolvency
proceedings; and disputes concerning blacklisted crypto
websites. Authors criticise statutory regulation and legal
enforcement failures, and provide conclusions on each group
of the disputes outlining case law trends.
Keywords:
Eurasian integration, EAEU Court, properties of EAEU law, competition law, functioning of internal market, free movement of goods, free movement of workers
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Discussion Board
I.A. Klepitskij Criminal Usury The question of banning and punishing usury requires serious
research by Russian lawyers. In developed market economies,
usury is recognised as reprehensible, unlawful and punishable.
Usury is a dangerous infringement on another’s property.
Being massive, usury becomes a dangerous encroachment
on the welfare of people, as well as a threat to public safety
and national security. The effective fight against usury in
Russia is complicated by high inflation, the rapid devaluation
of the ruble and the lack of understanding of the authorities’
responsibility for solving social problems in specific historical
circumstances. Nevertheless, in such circumstances, legal
struggle with usury is possible and advisable.
Keywords:
criminal law, economic crimes, usury, Russia, USA, France, Germany
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I.R. Medvedev Place Naming Disputes in Relation to the “Right to the City” This paper examines the latest case law and urban studies
covering place-naming conflicts (e.g. names of public
streets, parks, metro stations, etc.). The author elucidates
the relationship between the place naming rights in the context
of Henry Lefebvre’s “right to the city” and critically assesses
the existing approach of the authorities that consists in
ignoring residents’ opinions. The author points out typical
problems faced by the plaintiffs (preclusive time limits,
the question of actio popularis) and hopes that in the placenaming
disputes complaints relating to the right to the city will
soon be given a green light when evaluating formal aspects of
the claim. Today, all toponymic policies are concentrated in
the hands of the city administration, and the task of citizens
is to become at least an equal partner in this process.
Keywords:
place-name studies, right to the city, disputes, street names, Lefebvre, actio popularis
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Press Release
Theory and practice
Yu.B. Fogelson Russian Civil Law in Terms of Sociological Jurisprudence The article presents the results of the assessment of domestic
civil law and legal consciousness of Russian lawyers from
the standpoint of a functional approach to law. This first
theoretical part considers historical roots of dogmatism in
Russian legal consciousness and shows that dogmatism,
which is closely connected with the super positivist approach
to law, is still imprinted in the minds of domestic civilists.
The functional approach to law is described as a necessary
addition to legal dogmatism and an opposition to positivism, as
well as the essence of the social impact of law. These theses are
empirically confirmed in the second part of the paper. The author
considers the principle of good faith, standards of proof,
protection of possession, recovery of damages, compensation
for harm to life and health, etc., and proves that in these key areas
of civil law the dogmatic approach still prevails or significantly
hinders the effective operation of such civil law instruments.
Keywords:
civil law, sociological jurisprudence, functional approach to law, Russian legal consciousness
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A.I. Savelyev Towards the Concept of Data Regulation in the Digital Economy Almost two years have passed since the adoption of the governmental
program “Digital Economy”. However, as the texts
of draft laws relating to regulation of data — the main asset
in the digital economy — show, no holistic approach to its
regulation has been developed so far. Instead, a fragmentary
and chaotic approach dominates, with the main goals to ‘patch’
the existing legal framework and correct some extremes in law
enforcement practice. At the same time, the massive usage
of data in social life creates not only new business models
and innovative solutions but also new risks, which cannot be
adequately mitigated by using existing legal instruments of
the analogue/offline age. Therefore, there is a pressing need
for development of the concept of data regulation in the digital
economy, which would reflect the core principles forming
the future data governance framework. This paper represents
an effort to provide such principles, based on the analysis of
the existing experience of other jurisdictions and discussions
at various forums.
Keywords:
data, personal data, Big data, algorithmic governance
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D.G. Kopylov De Jure, De Facto, and Shadow Directors in English and Russian Legislation and Judicial Practice The article examines three categories of directors in English
and Russian corporate law. These include: de jure, de
facto and shadow directors. Upon analysis of English case
law, the author comes to the conclusion that there are two
approaches to the understanding of de-facto directorship —
a narrow one under which a de-facto director is a person who
has not been properly appointed as a company’s director, and
a broad one under which it is irrelevant whether there has been
an act of election; what is important is whether a person has
behaved as if (s)he were a director. It is the broad approach
which gives rise to the problem of drawing a line between
de-facto and shadow directorship. The article provides
a comparative analysis of de-facto and shadow directorship
with the notion of a controlling person in Russian corporate
and bankruptcy legislation.
Keywords:
controlling person, de jure director, de facto director, shadow director, executive body of legal entity
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I.V. Reshetnikova A Modern View of Fundamental Problems in Legal Relations The article represents a review of P.P. Serkov’s monograph
“Legal Relationship. Theory and Practice of Modern Legal
Regulation”. The role of legal relations in the legal life and
law enforcement, a huge layer of scientific heritage related
to the issues under discussion, law enforcement analysis,
and the author’s vision of problems — these are the things
of considerable interest.
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