ARCHIVE FOR 2019 RUSSIAN
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Июль 2019
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
V.V. Yarkov, I.G. Rents The Validity of Notarial Principles in the XXI Century: New Challenges The authors consider updating the notary model in times of
procedural and technological revolutions. They depict basic
global models of the notary which influence development and
preservation of key principles of notarial law. Proceeding from
the analysis of international practices and trends in public
relations and technologies associated with dematerialisation
and deritualisation of legal procedures, the authors provide
recommendations on how to further develop the Russian
notarial model.
Keywords:
notary public, principles, dematerialisation, deritualisation, legal procedures
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A.P. Makarov, M.A. Meshcheryakova Development of Notary System in Modern Russia: Challenges and Prospects This article highlights the key vectors of development
of the Russian notary in the coming years: ensuring
the stability of the civil turnover of real estate, prospects for
the introduction of new forms of notarial activity (remote/
e-notary), as well as solutions for imbalance in the system
of self-financing of notarial activity. Each of these areas
is associated with certain challenges, which the notary
community is trying to address through its involvement in
the drafting of relevant bills. The challenges are also briefly
discussed by the authors.
Keywords:
notary services, notary calls, notary tariff, remote notary, e-notary
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G.V. Vaypan Services One Cannot Refused to Buy “Legal and technical services” is a common term that refers
to a longstanding practice of notaries to charge their clients
several times as much as statutory fees. The Constitutional
Court and the Supreme Court prohibited solicitation of such
services, yet their opinions have been effectively overruled
by recent amendments to the legislation and new case law
of lower courts. In this article, I summarise basic issues
regarding payment for “legal and technical services”:
it duplicates the notarial fee, and its amount is unaffected by
whether the service has been rendered at all or, if so, to what
extent. Despite the notarial community’s longstanding effort
to regularise mandatory payment for such services, these key
issues remain unaddressed, with expert and public debate
still missing.
Keywords:
notarial fee, payment for legal and technical services, content of notarial acts, Constitutional Court of the Russian Federation
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M.Z. Shvarts Good Faith of the Participants of Civil Turnover and Notarial Certification (Problem Statement) The article considers how the principle of good faith of
the participants of civil law-based transactions enshrined in
Article 1 of the Russian Civil Code affects the rules of notarial
certification. The function of legal advising requires the notary
to know the standards of good faith for various commodity markets
and to explain them to the parties entering into a transaction,
so that the parties would not be blamed for non-compliance in
future legal disputes. The notary procedure’s formalism, which
does not take into account the principle of good faith, should
become a thing of the past. Notary rules should be synchronised
with substantive law in such a way that the notary is not obliged
to certify a transaction in case of obviously unfair behaviour by
the parties.
Keywords:
notary, rules of performance of notarial actions, function of legal advising, principle of conscientiousness, standards of conscientious conduct
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N.Yu. Rasskazova Notarised Transaction and Non-Compliance with Required Format The author criticises the definition of notarisation as provided
for by the Civil Code of the Russian Federation in 2013 and
demonstrates that the new norm has no regulatory impact.
Errors of judicial practice related to submitting notarial acts
to formal requirements are considered. The significance of
signature for transaction is assessed based on the analysis
of judicial practice.
Keywords:
notarised transaction, signing of transaction, notarisation procedure, regulatory impact assessment of legislation
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O.V. Filippova Information Technologies in Notarial Activities This article addresses the issues of creating an Electronic
Notary system in the Russian Federation. The typical features
of electronic notarisation in the countries with more advanced
technologies are analysed. The need for further regulation of
electronic notarisation (remote notarisation) is identified and
justified. Based on the study undertaken, the author suggests
to update existing provisions of the Principles of Russian
Legislation regarding Notary in order to ensure uniform
application of these regulations throughout the country.
Keywords:
information technologies, Electronic Notary system, notarial practice, digitalisation of society, unified information system of notaries
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A.A. Ivanov Chronicle of a Dive Bomber The consequences of the Golunov case. — Internal expertise
in criminal cases. — Detention and the case of Calvi. — Public
service is not a place for organised criminal groups? —
Security services and business. Banks block everyone. — Tax
evasion is a continuing crime. — New Code of Administrative
Offences. — Regulatory guillotine. — Stealing real estate via
electronic signature. — People as services. — Illegal Legal
Tech. — “Harmful” escrow accounts. — Reforming property
law once again. — Joint wills and inheritance agreements. —
Percentage of citations of others’ works.
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Judicial practice. Comments
A.E. Mukhametshin, D.M. Sarvarov Public Order Category in Relation to the Application of Chapters 30 and 31 of the Russian Arbitrazh Procedure Code in Russian Court Practice In this article, the authors analyse case law relevant
to enforcement of decisions and awards ruled by both
foreign arbitration institutions and courts as well as
Russian arbitration courts. They consider the application of
Russian public order rules for the period since the adoption
of Informational Letter No. 156 in 2013 by the Supreme
Arbitrazh Court of the Russian Federation. Their study
highlights the most common cases where courts apply
the public order clause. The authors came to the main
conclusion that the adoption of the Informational letter
had not had the expected effect of restricting the excessive
interpretation of the public order category by arbitrazh courts.
Keywords:
public order, enforcement of awards, refusal of enforcement of awards, international commercial arbitration, public order clause, arbitration tribunal
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Theory and practice
P.A. Skoblikov The Highest Position in the Criminal Hierarchy: Problems of Interpretation and Application of Art. 210 (4) of the Criminal Code of the Russian Federation The author analyses the criminal law provision that stipulates liability
for organised criminal activity by the person occupying the highest
position in the criminal hierarchy (Article 210 (4)of the Russian Criminal
Code). He further considers the respective law enforcement practice
and relevant factors such as inherent drawbacks of this legal norm,
lack of its conceptual and methodological elaborateness, absence
of law enforcement bodies capable of and effectively motivated to
detecting and investigating crimes. The Russian Supreme Court
Plenum’s explanations are critically reviewed. The author substantiates
his recommended interpretation of the provision in question and
assesses arguments both for and against limiting the range of subjects
to be prosecuted, alongside the 2019 amendments to Article 210 (4) of
the Criminal Code. The article outlines a proposal for improving federal
statistics on detected crime. It also shows the possible preventive role
of this provision and its potential relevance to practice.
Keywords:
organised crime, corruption, highest position in criminal hierarchy, criminal association, criminal organisation, units of criminal groups, structured organised group, criminal leaders, evaluation concepts, protection of rights of entrepreneurs
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S.V. Glandin Establishment of a Constitutional Standard under the EU Charter of Fundamental Rights in ECJ Case Law on De-Listing Cases Over ten years from the adoption of the Charter of Fundamental Rights,
this document, unlike the European Convention on Human Rights
of 1950, has neither been studied so deep nor is being discussed
within Russian legal society. The category of de-listing from EU
restrictive measures does amount to a way of applying of the Charter
by Russian legal entities and individuals. The respective research
into the European Court of Justice’s case-law demonstrates which
fundamental rights might be of assistance for applicants seeking
removal from the blacklists. If a violation of most of the rights stipulated
by the Charter does not improve chances for success, then addressing
some of them — for example, the right to an effective remedy and
to a fair trial, good administration or the access to the documents of
EU institutions — may persuade the Court to look into the European
Council’s compliance with the applicant’s respective rights. The court
is not tasked with striking a balance between declared objectives of
the CFSP and respect for the rights of listed persons. The administration
of the lists will be considered appropriate and the CFSP objectives will
be achieved only if the fundamental rights of the applicants were not
violated.
Keywords:
restrictive measures, sanctions, ECJ, CFSP, human rights, EU Charter of Fundamental Rights
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M.Sh. Patsatsiya Subjects of Supervisory Appeal in Civil Procedure The most common answer to the question about the subjects
of supervisory appeal to the Supreme Court Board in civil
procedure is the following: the subjects of supervisory
appeal are defined in Article 391.1 (2) of the Civil Procedural
Code of the Russian Federation as an close-ended list.
Correspondingly, only the enlisted court rulings can be
appealed as such. However, there is another approach both
in court practice and procedural doctrine, according to which
the subjects of supervisory appeal go beyond the above
mentioned list. The article is devoted to objective analyses
of above mentioned approaches given current legal realities
which should be taken into account and considering legal
interests balance.
Keywords:
subjects of supervisory appeal, supervisory proceeding in civil procedure, court practice, procedural doctrine, legal interests balance
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E.A. Fokin “Professionalisation” of the Russian Arbitrazh Procedure The present paper tries to confirm or refute the hypothesis about
the Russian arbitrazh (commercial) procedure as a type of professional
legal process. An interim conclusion is made that the position according
to which a professional judicial process is a process oriented to professional
participants is conservative. Alternatively, the author puts forward and
substantiates the thesis that the main feature of a professional judicial
process is effective procedural cooperation between the court and
the persons participating in the case. At the same time, the analysis
of commercial case law leads to the conclusion that both the court
and the parties have a rather formal cooperation, which is extremely
difficult to recognise as effective. This circumstance indicates that it is
premature to consider the Russian arbitrazh process as a professional
judicial process. Findings from the study suggest that making
the arbitrazh procedure of professional nature requires not only a
fundamental change in the approaches to judicial practice but also a
fundamental change in the general psychology of cooperation between
the court and the parties.
Keywords:
“professionalisation” of arbitrazh process, professional arbitrazh process, cooperation between court and parties
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M.I. Lukhmanov Representations and Warranties: Theoretical and Practical Issues in Light of a New Interpretation from the Supreme Court of the Russian Federation The mechanism of representations & warranties (Article 431.2
of the Civil Code of the Russian Federation) has recently received
a new interpretation from the Supreme Court of the Russian
Federation. The article considers the underlying issues in
the Russian adaptation of the concept of representations &
warranties, in particular the nature of liability, fault requirement,
the standard of reasonable care, the questions of temporal
limitations on obligations and enforceability, and also the place
of contractual penalty within the system of remedies available to
the recipient of information that proves to be untrue. It analyses
the solutions proposed by the Supreme Court of the Russian
Federation from the perspective of doctrinal approaches in
conjunction with the first case law of lower courts in application
of Article 431.2 of the Civil Code of the Russian Federation.
Keywords:
representations & warranties, contractual and tort liability, obligation term, damages, contractual penalty
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A.S. Vorozhevich Legitimate Quotation as Free Use of Different Copyright Objects The author examines the criteria for legitimate quotation.
Based on the analysis of Russian judicial practice and foreign
experience, she investigates the problem of citing non-textual
works such as photographic, artistic or musical works.
The article distinguishes between the institution of legitimate
quotation and illustration.
Keywords:
copyright, quotation, literary works, photographs, illustration
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V.V. Aleynikova Protection of Privacy (Art. 152.2 of Russian Civil Code): Theory and Law Enforcement In this article the author explores the substantive elements
of privacy and the problem of maintaining a balance between
an individual’s interests and the society’s right to information
drawing on Russian and European experience. Examples
of the violation of privacy along with possible solutions to
the conflict between the provisions of Articles 152.2 and 152
of the Civil Code of the Russian Federation are given based on
the analysed judicial practice. The issue of the privacy of public
persons, which is of particular relevance in connection with
submitting to the Russian State Duma bill No. 563156-7 “On
Amendments to Articles 152.1 and 152.2 of the Civil Code of
the Russian Federation”, is also addressed in the article.
Keywords:
privacy, personal data, physical and psychological integrity of person, public figures, public officials, celebrity
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Foreign experience
