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ARCHIVE FOR 2019    RUSSIAN

Апрель 2019

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

P. Solomon, Jr Judges Should Be Held Responsible not for Achieving Norms Relating to Efficiency but Rather for the Quality of Their Work
Interview with Peter H. Solomon, Jr., Emeritus Professor of Political Science, Law and Criminology at the University of Toronto, with Alexander Vereshchagin, Editor-in-Chief of “Zakon” Journal
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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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