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ARCHIVE FOR 2019    RUSSIAN

Октябрь 2019

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Autumn Brings Changes to Russian Courts: A New Procedural Revolution?
Comments by E. Borisova, L. Golovko, V. Yarkov, Yu. Tay, V. Klyuvgant, D. Tumanov, A. Yudin, V. Yampolskiy
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Topic of the issue

E.R. Rossinskaya Modern Forensics and Its Improvements
The current problems of forensics are systematically considered. Suggestions are put forward to resolve contradictions in legislation related to the legal status of forensic experts. They are about unifying procedural rules and removing contradictions between these rules and articles of Federal Law No. 73-FZ of May 31, 2001 “On State Forensic Expert Activities in the Russian Federation” along with regulating the rights and duties of forensic experts. It is necessary to unify the norms of criminal procedure, civil procedure, arbitration procedure and administrative procedure codes. The legal status and functional structure of private forensic institutions should be governed by the Federal Law. It is suggested creating a Federal Chamber of forensic experts at the federal level and regional chambers in the federal districts of Russia which will maintain registers of private experts.
Keywords: forensic expert examination, competence of forensic expert, public forensic institution, private forensic institution, legal status of forensic expert, complex examination, specialist expertise
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K.L. Branovitsky, I.G. Rents, I.V. Reshetnikova Can You Trust an Expert? A Few Words on the Quality Assurance of Forensic Science (A Comparative Legal Analysis)
This article deals with the issues of quality assurance in forensic examination and pre-requisites for confidence in expert findings. It describes the models of forensic examination in a number of developed common law (England) and civil law (Germany, France), jurisdictions, presents institutional and procedural specifics of the use of expert evidence in courts. The best foreign practices show that effective interaction between an expert and the court is based on a set of organisational and procedural measures, which, on the one hand, allow trusting the expert opinion and guaranteeing its quality, and, on the other hand, providing the court with discretion and making it less dependent on such opinion. One of the possible trajectories is to form a genuine corporation of forensic experts, get them nearer to the court, and develop internal and external control tools — both at the entrance to profession and when undertaking an unconditional responsibility with disbarment of those departing from the requirements of scientific truth, objectivity and impartiality, in addition to property liability for the harm caused to the interests of justice and individuals. Enhancing the quality of expert examination will also be facilitated by strengthening the adversarial elements in appointing and conducting an examination, as well as during the evaluation of this evidence in court: this constitutes free and equitable use of alternative opinions, including those obtained by the parties themselves, optional participation by the parties and their representatives in the process of examination with the possibility of submitting additional materials, explanations, etc., mandatory cross-examination of expert witnesses and other specialists involved in proceedings.
Keywords: forensic examination, expert opinion, foreign models of expert involvement, judicial proof and evidence
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A.I. Usov, G.G. Omel’yanyuk, E.V. Chesnokova Standardisation in Forensics: Prospects and Suggestions
Current developments in forensics can be explained by stringent standards for objective evidence. Increasing international cooperation in the field of forensic science is interconnected with a number of important circumstances such as growth of transnational crime, international terrorism, financial crimes, illegal migration, globalisation of all spheres of human activity, and rapid development of telecommunications. As a basic trend, standardisation in forensics is observed. Standardisation is an underlying mechanism for achieving and maintaining high quality forensics. One of the fundamental international standards, which has been taken on by forensic laboratories, is ISO/IEC 17025:2017 “General requirements for the competence of testing and calibration laboratories”, the key principle being the voluntary application of standards. It is concluded that achieving objectivity in forensics primarily contributes to the formation of environment conducive to compliance with standards, viability and efficiency of quality management systems, excluding the conflict of interest, minimising its implications and eliminating the risk of conflict. Through such mechanisms, objectivity in forensics — ensuring quality assistance to justice — can be achieved.
Keywords: standardisation, forensics, accreditation of forensic laboratories
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V.Ya. Rikhterman, V.I. Rodionov Evidential Value of Forensic Examination in Arbitrazh Proceedings. Legal Aspects of the Expert Report Assessment and the Possibility of Its Critical Perception
This article explores, using arbitrazh proceedings as an example, causes and effects of attaching special evidentiary significance to forensic examination findings due primarily to strictly prescribed procedural form of how research is to be conducted and that an expert is able to provide explanations on the questions that a court is unable to answer on its own. The authors analyse the problem of evaluating an expert report as to its credibility based on existing case law and experience in judicial work. In particular, the authors have identified three standalone criteria for evaluation: compliance with formal requirements contemplated by existing laws as to how forensic examination must be initiated and conducted; good faith and impartiality and requisite expertise of an expert; reasoning of an expert report, credibility and verifiability of examination findings. The articles also offers practical recommendations how to apply legal mechanisms of a forensic expert report’s rebuttal if his evidence is false. Given that basic principles of legal regulation of forensic examination both in arbitrazh and civil proceedings are similar, the authors’ conclusions apply to civil proceedings as well.
Keywords: forensic examination, proof in arbitrazh proceedings, evidence, expert report
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A.V. Kokin, A.S. Likhachev Interagency Inconsistency and Unifying Regulatory Approaches to Forensic Practice through Ballistics
This article analyses the problems that stand in the way of implementing a unified scientific and methodological approach to forensic practice, professional training and expert specialisation in state forensic institutions using forensic ballistics as an example. In terms of methodology, the most acute problem of forensic ballistics is the inconsistency of the existing methods employed by Russia’s Ministry of Justice and Ministry of Interior to categorise cartridges as live ammunition. An analysis of the contradictory provisions along with the regulatory framework and national standards that form the basis of these methods allows us to conclude that they are ambiguous and biased, which makes examination findings contradictory. The authors believe that the question of attributing the cartridge to live ammunition in the legal sense is not technical, but legal and no special knowledge is required to solve it, therefore, there is a good reason to develop a single inter-agency methodology. The second problem to be addressed is further vocational education and training (VET) of forensic experts, which is carried out through advanced education and training programmes and professional retraining programmes. At the same time, Russia’s Ministry of Justice and Ministry of Interior have a different interpretation of the provisions of federal legislation on VET. Comparing VET programmes for forensic ballistics from the two ministries shows their different approaches to implementation practices and labor inputs. The third problem discussed in the article is a discrepancy between the names of forensic specialties at different departments. According to the authors, at present, due to the departmental disunity and the lack of definiteness in current legislation, it is problematic to resolve these inconsistencies. The way out of the current situation would be quickly passing a new forensic expertise legislation to define higher standards for objectifying forensic examination in order to enhance and streamline the process of forensic examination based on a unified scientific and methodological approach to expert practice, additional vocational education and training and specialisation of experts.
Keywords: forensic ballistics, expert methodology, advanced education and training in forensic science
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T.N. Sekerazh, V.O. Kuznetsov Research into Information Materials — Current Trends in Forensics
The article is devoted to expert research into information materials. This area of forensics is multifaceted: the study of information materials requires the use of specialist knowledge from various fields (linguistics, psychology, religious studies, etc.). Each area of forensic examination, taken alone or in combination, contributes to the identification of various aspects of the objective and subjective sides of crime, and more broadly — of the truth in the case. Complex expertise (primarily psychological and linguistic) has proven to be most effective for applying specialist knowledge when studying information materials. The article also addresses the actual issues of information material examination, including expert, methodological and administrative for forensic activities in government forensic institutions, as well as problems with examination performed by private experts.
Keywords: research into information materials, linguistic expertise, psychological expertise, complex expertise
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Discussion Board

L.A. Novoselova, O.A. Polezhaev Legal Risks Related to IP Rights Transactions through Digital Platforms
This article discusses legal risks related to the usage of digital platforms, including blockchain technology, for the purposes of accounting and disposition of IP rights. The nature of existing accounting systems is analysed in terms of effectively ensuring stability for transactions, including those involving IP rights; and mechanisms to minimise the risks are suggested.
Keywords: legal risks, intellectual property, objects of intellectual property, intellectual property accounting, register, blockchain
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G.A. Esakov, R.O. Dolotov Reports on Legal Issues in Criminal Procedure
The authors analyses the legal maxim “iura novit curia” in a contemporary criminal procedure. It is concluded that this maxim clearly cannot be supported due to exceptional difficulty of legal regulation today. That is why the trial court needs in some kind of assistance in legal matters. However, Russian criminal procedure legislation does not provide any legal tool for such assistance. The day-to-day court’s practice varies from neglecting such assistance to its acceptance either as expert report or as witness statements. The authors analyses these approaches and concludes that there is a necessity in a special legal regime similar to one adopted in arbitration proceedings in Russia. They propose several principles of such regime. The main conclusion is that the judge is not required to follow the proposed legal assistance. However, he may follow the reasoning behind it if he finds it conclusive.
Keywords: presumption, questions of law, questions of fact, expertise, expert report
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B.Ya. Bruk, I.S. Koreshkov Determining the Place of Supply of the Cross-Border Services for VAT Purposes: Problems of Classification
The article concerns one of the hottest law practical issues of Russian tax law, which is determination of the place of supply of cross-border services for VAT purposes. Errors in such determination may result in material tax assessments (primarily for Russian customers dealing with foreign service providers or Russian service providers dealing with foreign customers) or, on the contrary, trigger disputes with the Russian tax authorities on recoverability of input VAT related to such cross-border services (if, in the opinion of the tax authorities, a Russian taxpayer (service provider) or a tax agent (Russian customer) was incorrect in treating particular cross-border services as VATable). The lack of a uniform approach to this issue creates serious risks for taxpayers, as the below references to court practice demonstrate. The authors study the current methods of classification of crossborder services for VAT purposes and vote for a uniform approach to be used for classification of the cross-border services for VAT purposes. Whatever is the methodology ultimately selected in practice, legal certainty of the concise and uniform approach would be the real bargain.
Keywords: taxation of cross-border services, value added tax, place of management of a foreign organisation
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Press Release

 

 

Theory and practice

V.M. Zhuikov Judicial Independence: Some Problems
This article examines the meaning and content of the principle of judicial independence, guarantees of judicial independence, and errors in the implementation of this principle due to amendments in the legislation (establishing the tenure of chief judges and their deputies, age limits for the offices of judges, some chief judges and their deputies, disciplinary liability of judges etc.). The author comes to the conclusion that by now the level of judicial independence, in comparison with the beginning of judicial reform in the Russian Federation, has significantly decreased with all the ensuing consequences.
Keywords: judicial independence, irremovability of judges, independence of courts, responsibility of judges
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A.A. Filimonenko Lis Pendens Rule: European Union Experience and the Prospects of Developing the Russian Model
Parallel proceedings are undesirable and incompatible with the harmonious administration of justice. In order to minimise the possibility of concurrent proceedings modern legal orders establish legal tools aimed at preventing such duplication. The article essentially deals with one of these tools, namely, the doctrine of lis pendens. According to this doctrine, it is not permissible to initiate new proceedings if litigation between the same parties and involving the same dispute is already pending (the priority rule). Nevertheless, it is rather questionable, whether the above approach is always justified. Hence, the article is intended to cover various approaches to the application of the priority rule, their merits and weaknesses. The research gives in-depth knowledge of what lis pendens rule means and leads to further academic debates concerning the party autonomy concept. The research methodology uses the following tools: historical analysis and comparative analysis.
Keywords: lis pendens, parallel proceedings, choice of court agreement, international civil procedure
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A.A. Proshin Peer-to-Peer Lending: A Legal Analysis
The article contains legal analysis of the practice of lending money to individuals or businesses through online services without direct participation of a bank or other credit institution. The author compares various models of organisation and regulation of peer-to-peer lending in some foreign countries (UK, USA and China), studies Russian market of peer-to-peer lending and assesses the prospects for its regulation. The author concludes that the objectives of such regulation should be to protect consumers and inform them about the risks inherent in this product. These goals can be achieved by setting certain requirements for online services in order to ensure their reliability and solvency as well as restricting their potential clients in terms of their qualifications as investors and in terms of the maximum amount of loans lent through such online services.
Keywords: alternative finance, peer-to-peer lending, crowdlending
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A.E. Kirpichev Withdrawal from Linked Contract
This article broadens the understanding of contractual interdependence beyond the sphere of consumer relations. The category of linked contracts is part of modern codifications: DCFR, Argentina Civil Commercial Code; however, different approaches are used to position linked contracts within the system of contract law. It is suggested to differentiate between types of withdrawal depending on whether linked contracts form a relational contract, or these are contracts that have overlapping entities pursuing a common economic goal. For relational contracts, the possibility of withdrawal in breach of one of the contracts forming the group of contracts may be provided at parties’ discretion as set out in the contract. For contracts with a single economic goal, a presumption of lack of interdependence should be established, with the exception of consumer contracts where, conversely, the presumption of interdependence should be established (the content of which is the consumer’s right to withdraw from a linked contract concurrently with withdrawal from the underlying contract).
Keywords: interdependence of contracts, group of contracts, nexus of contracts, relational contract
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