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ARCHIVE FOR 2019    RUSSIAN

Июль 2019

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Reforming the Code of Administrative Offences: What It Will Be Like?
Comments by M. Yakushev, S. Puginsky, Yu. Starilov, G. Esakov, N. Travkina, A. Ryabov
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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

A.D. Lozovitskaya The Institution of Disclosure on Light of Civil Procedure Reform in Russia, England and Wales
This article is devoted to the English Disclosure Pilot Scheme for the Business and Property courts, which came into effect from 1 January 2019 signalling the next stage of the disclosure reform. Key changes introduced to the court disclosure rules are analysed against the 2013 Jackson reforms and the 1999 Woolf reforms.
Keywords: disclosure, e-disclosure, civil procedure reform, English legal system
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