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ARCHIVE FOR 2019    RUSSIAN

Сентябрь 2019

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

W.E. Butler The Value of a Legal Education Lies in the Analytical and Evidentiary Skills
Interview with William Elliott BUTLER, Distinguished Professor of Law of Dickinson School of Law at Pennsylvania State University, by Alexander Vereshchagin, Editor-in-Chief of “Zakon” Journal

 

The Event. Comments of the Experts

Digital Trust
Comments by V. Naumov, Ye. Avakyan, A. Chuburkov, R. Yankovskiy, S. Belova, M. Tevs, E. Makhnonosov, V. Rybalko
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Topic of the issue

A.V. Ilyin Law Degree in Russia: What Should We Do фnd What Can We Hope for?
Training new lawyers with stronger knowledge and skills is a crucial part of the development of Russian law. Professional legal education has to consider current needs and changes in the intellectual profile of prospective students, responding quickly by revising their curricula. It is time to improve instructional methods and examination formats by moving from memorising current statutory provisions and oral exams to problem analysis and written exams. Therefore, law schools and universities should have freedom of choice as to what to teach in order to ensure transition from competition among university names and traditions to competition among degree programmes.
Keywords: law degree, examination, instructional methods
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D.L. Kuznetsov Professional Postgraduate Legal Education in Digital Era
The digital age dictates new approaches to building a professional career, including the legal area. The traditional forms of postgraduate legal education are being replaced by new methods that require fundamentally different ways of obtaining, sharing and updating legal knowledge, which drives changes in legal mechanisms for employee education in the legal industry. At the same time, poor legal protection of employer investments in employee education remains one of the key issues.
Keywords: legal professional postgraduate education, postgraduate qualifications, skills level, Employees development & learning
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O.S. Shepeleva Legal Education and Lawyer Training: What Can Foreign Experience Tell Us?
This article describes legal education in England and Wales, Argentina, Germany, Poland, the United States and France. Lawyer training is considered in the context of national education systems and in relation to the rules of access to legal practice. The author identifies two models of legal education and practical training of future lawyers, noting the individual characteristics of these models in each particular country. The analysis of foreign systems is used to formulate possible steps to improve the quality of legal education in Russia and to assess the pros and cons of each of them.
Keywords: legal education, lawyer training
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N.N. Mosunova, M.N. Derra Assessment in the Legal Profession in Germany and the United Kingdom: Should Russia Transplant the European Practices for Reforming Access to the Profession?
Some criticism on the system of Russian law schools’ final assessment has emerged in recent years followed by proposals to introduce an additional qualification test for practising lawyers irrespective of their university degree. This trend may indicate mistrust towards the national system of higher legal education. Therefore it is worth examining the approaches of the countries with higher requirements for access to the legal practice, such as the United Kingdom and Germany. In a brief essay, the authors outline the lawyer selection process and qualification exams in these countries critically assessing to what extent these methods can be implemented in Russia taking into account that education systems are integrated with cultural, historical and social specifics of the legal profession in those countries.
Keywords: legal education, lawyers assessment, qualification test, solicitor, barrister, Referendariat, lawyer in Germany, lawyer in England and Wales
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A.M. Shirvindt, E.A. Khodzhaeva What Do Law Students Read: First Findings from Survey
A sociological survey conducted among students at five Russian universities revealed a number of features that characterise educational and professional readings of future lawyers. This article presents first findings from the survey. It focuses on the structure of the corpus of texts used in course of education: types of sources, their influence and functions as well as the role of sources in foreign languages. The share of different sources and different genres of legal literature in the corpus used by Russian students is of great interest.
Keywords: legal education, Russian students, educational literature, educational and professional readings, legal commentaries
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O.P. Pleshanova Science and Life
Fast-track justice — Yandex filtration — Dron registration — Judicial disciplinary liability — Start date of professional representation in arbitrazh courts — The case of “Tolyattyazot” — Legal advisor as controlling person — Psychiatrist’s criminal responsibility for patient’s conduct — Non-tax compulsory payments — Antitrust compliance — Russian Supreme Court on hoodwinked co-investors’ rights — Term of office — Brexit
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Discussion Board

M.Z. Shvarts, D.B. Volodarskiy Polluter Pays Principle and the Legal Responsibility of Economic Entities for Inevitable Environmental Damage
BASED ON THE RULING OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION OF 13.05.2019 NO. 1197O Using the example of the responsibility of loggers for damage to wildlife, the authors show that compensation for pollution resulting from economic activities should be made by levying environmental charges on nature users. The current practice of applying liability mechanisms under civil law neither provides sufficient regulatory grounds nor complies with certain constitutional standards.
Keywords: environmental responsibility, environmental charges, polluter pays principle, presumption of environmental hazard of planned activity, responsibility for lawful action, legal protection of wildlife, regulation of logging
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A.R. Sultanov How to Combat Fake in Tax Disputes, or Is It Possible to Review Court Orders If a Lie Is Revealed?
The author suggests reviewing court orders due to newly discovered facts — if the evidence of lies is revealed — as a way to combat lies in tax disputes.
Keywords: tax disputes, review due to newly discovered facts, new evidence
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Press Release

 

Theory and practice

Yu.B. Fogelson Russian Civil Law in Terms of Sociological Jurisprudence (Possession, Real Estate, Damages)
This article continues the cycle, which presents the results of the research into the assessment of domestic civil law and legal consciousness of national lawyers from the perspective of the functional approach to law. The first paper of the cycle considered the main theoretical results, so now these results are empirically confirmed. The empirical part consists of several episodes illustrating the life of modern domestic civil law. Three of them (the supremacy of the Civil Code, the principle of good faith, and unfair conditions of contracts) were addressed in the second article. This third article adds three more episodes: protection of possession, principles of regulation of real estate transactions, and the problem of recovering damages for contractual breach.
Keywords: civil law, functional approach to law, Russian legal consciousness, protection of possession, turnover of real estate, recovery of damages
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V.A. Alexeev Possession of Real Estate
This article discusses the concept and characteristics of possession under the current law, and identifies features of possession of real estate. The author comes to the conclusion that the current legislation considers the possession of an immovable thing as an actual state, which is characterised by the possibility of regulating access to things by others. Attention is drawn to the fact that the possession of real estate only in a limited number of cases serves to ensure the “visibility of the right”, which, as a general rule, in respect of real estate is achieved by state registration. Therefore, the author believes that the perfection of legislation should follow the path of implementing the concept of registered possession. According to this concept, a person whose right is registered in the Unified State Register of Real Estate should be recognised as the possessor of the property. The article analyses the implications of a transition to the registered possession in terms of real estate transfer, its vindication and double sale.
Keywords: possession, title of possession, real estate, visibility of rights, book possession, registered possession, real estate transfer, double sale, real estate vindication
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S.I. Sobolev Allocation of Legal Costs on Pro Rata Basis: Law Enforcement Practice Summary and Research
Until recently there was no uniform rule in civil and arbitration proceedings with respect to allocation of legal costs on a pro rata basis. The situation was changed when the RF Supreme Court adopted its Plenary Resolution No. 16 of 21 January 2016 on Certain Issues in Application of Legislation Regarding Allocation of Legal Costs”. The Supreme Court has identified cases where the pro-rata principle applies to allocation of legal costs. At the same time, the author believes that the list of such cases is not exhaustive and defines the idea that helps extend the scope of application despite the Plenary Resolution.
Keywords: legal costs, pro-rata principle
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O.A. Zharkova, E.E. Rychkova The Transfer of Rights to Use Subsoil Resources and the Reissue of Licenses within the Framework of a Single Organisational Structure
The authors conclude that the Russian legislation is in a situation where the legislator, when speaking about the transfer of rights, does not disclose the mechanism of such transfer. As a result, there appears to be a legal vacuum filled with judicial practice, which is not uniform. The same is true for the transfer of rights to use subsoil resources. To clarify the legal nature of this transfer, the authors first analyse the legal nature of the right to use subsoil itself to conclude that it is a public-law property right. Further, the authors pay attention to the fact that the Law on Subsoil distinguishes between the concepts of “transfer of the right of subsoil use” and “reissue of the license”, and confirm the conclusion about the public-law nature of the reissue of licenses and the civil-law nature of the transfer of the right of subsoil use.
Keywords: right to use subsoil resources, property right, license return, license reissue
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I.M. Akulin, E.A. Chesnokova, K.M. Smirnova, R.A. Presnyakov Transformation of Medical Privacy in the Era of Digital Health
The article examines the process of transition to digital healthcare in the Russian Federation and, in particular, emerging risks and potential problems in the field of information security and privacy protection, which includes personal data and privileged information, especially patient privilege. To level out the risks and protect the interests of both patients and physicians, as well as to integrate advanced technologies into the health care system, the authors suggest creating integrated databases for physicians to help develop decision support systems, artificial intelligence and customised patient care. Another suggestion is to expand the range of actors and to revise the list of circumstances allowing for access to medical data. The authors also point out that the risk of identification can be downplayed by establishing a ban on attempts to re-identify along with formulating proper rules on liability for violation.
Keywords: unified public health information system, e-health, medical privacy, data protection
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Foreign experience

S.A. Kondratev Modern Approaches to Trial Hearings in Criminal Court from the Sentencing Perspective: Foreign and International Justice Practices
This article investigates relevant approaches to trial hearings in terms of due sentencing practice and imposition of just penalty. Two main approaches are highlighted and described in the practice of foreign countries and international penal institutions. The first “pure” common law approach distinguishes between criminal charges and just penalty, and deals with them separately. The second approach is based on the civil law tradition viewing the charge and the respective penalty as a single objective without any separation between proceedings and adjournments. The pros and cons of each system are discussed from a comparative perspective. Finally, the article provides an examination of “mixed” solutions, as exemplified by the Swiss Criminal Procedure Code and the International Criminal Court Rules of Procedure and Evidence, which probably could be regarded as a successful example of avoiding flaws of the two extremes.
Keywords: individualisation of penalty, settlement of criminal case on merits, principle of unitary judgment, caesura
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