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ARCHIVE FOR 2019    RUSSIAN

Декабрь 2019

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

GADIS A. GADZHIEV THE FUTURE OF LAW
The author demonstrates the way in which law, following in the footsteps of philosophy, sociology and other humanities, is forced to engage in predicting future socio-ecological transformations. Such forecasting is necessary to ensure that law can easily adapt to new realities of life and avoid “regulatory hunger.” At the same time, the legal regulation of predicted phenomena should not be hasty or excessive: this is especially true of artificial intelligence, as rightly put by Yu.A. Tikhomirov. Equally, lawyers should have no illusions either about any rapid digitalisation/automatisation of judicial activity or its transformation into a production line. In the legal sphere, there is always room for ethics, economic reasonability, and, in other words, “legal policy,” as L.I. Petrazhitsky wrote. In “Law and economics”, a discipline which is still new to us, this concept is called consequentialism.
Keywords: legal futurology, consequentialism in law, artificial intelligence, Big data
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ANDREY V. POLYAKOV IS THERE A FUTURE FOR RUSSIAN LAW?
The achievements of scientific and technological progress, new technologies and means of communication will be successfully “embedded” into the life of society not only if one knows the entire system of existing norms or is able to use legal techniques, but also if one clearly understands the principles and fundamentals of law as such. This article argues that the law remains itself only when it is based on the principle of mutual recognition and the resulting principles of freedom, equality, justice and responsibility. The necessity of these attributes of and fundamentals of law is argued from the standpoint of the communicative theory of law. Assimilation of these principles and the normal functioning of law requires cultivating in Russian society the idea of citizenship, which, like the communicative theory itself, was formed under the influence of the Russian philosophy of law, including the ideas of I.A. Ilyin. The preservation and dissemination of these ideas in Russian legal consciousness is a pre-requisite for Russian law to have its meaningful future.
Keywords: civil legal consciousness, Russian legal consciousness, principle of mutual recognition, legal nihilism, communicative theory of law
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ANTON A. IVANOV DIGITALISATION AND LEGAL DOCTRINES
The article is devoted to the global problem of modern law — the relationship between digitalisation and legal doctrines. The issue seems inexhaustible, therefore four general parts have been identified: 1) the role of artificial intelligence in the digitalisation of law; 2) digitalisation under basic legal systems of our time; 3) digitalisation of legal doctrines and its problems; 4) the impact of digitalisation on the scientific environment. The author concludes that the development of LegalTech is not universal and depends on national contexts, so there are significant reasons to believe that Anglo-American law will become dominant in this area. The author also argues that sooner or later the development of LegalTech will enable computerised analysis of the novelty of legal ideas, which, in turn, will significantly change the scientific landscape.
Keywords: digitalisation of law, artificial intelligence, LegalTech, legal doctrine
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VLADISLAV V. ARKHIPOV IS LAW POSSIBLE IN POST-TRUTH ERA?
The word “post truth” became the word of the year according to Oxford Dictionaries in 2016. It refers to the state of society in which trust in the institutions that previously had a monopoly on the production of reliable public information is lost. Under such circumstances, the existence of law as such may be called into question as long as we perceive law as a communicative phenomenon. As a result, the questions of what is “real” for social reality and what is “legal” among what is “real” are actualised. Those subjects of social relations are “real” that are socially significant in the sense that they reflect the social value of a generalised symbolic media as a kind of social “currency” that makes up social capital — money, political power, etc. (S. Abrutyn, P. Bourdieu). Among this, “legal” is that which embodies the value of “justice”, which in sociological sense coincides with ideas similar to “internal morality of law” (L. Fuller). Something contrary to this represents only an imitation of law. And although law by definition is not possible as a simulacrum, the number of legal simulacra only multiplies in the post-truth environment. To preserve objective law in future, it is necessary to consider the possibility to replace the previously known principle of good faith with an alternative principle of “mutual guaranteed distrust” in the foundations of law. The hypothesis is proposed that in a legal system this principle can be implemented with the help of those technological methods that allow creating such environment of trust, which excludes subjective factor.
Keywords: post-truth, law, social reality, social constructionism, generalised symbolic media, trust, blockchain
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VLADIMIR A. SIVITSKIY REGULATION OF HYPOTHETICAL SOCIAL RELATIONS: ALIEN CONTACT ACT AS GLOBAL SERIOUS GAME
The author ponders about the possibility in principle and parameters of legal regulation of hypothetical public relations. As an example, the possibility of global regulation of people’s, state bodies’ and interstate institutions’ behavior in such a hypothetical situation as contacts with aliens is considered. It is suggested to view the adoption of such international treaty as a global serious game aimed at stimulating the development of international law as an instrument intended to counter global challenges.
Keywords: predictive function of law, anticipating legal impact, global challenges, international law, international treaty, regulatory approach to legal regulation
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OLGA P. PLESHANOVA IN ANIMAL WORLD
Animals and drug business — Cat and bonuses — Reform of spouses property relations — Subsidiary responsibility of controlling person’s family members — Confiscation of assets acquired on corruption income — Сountering domestic violence — Property rights and ‘stone jungle’ — Bank lending and misselling — State guaranties — Drones and fakes — Success fee — Amicable settlements in ECHR — Private prisons — WADA’s sanctions — Arbitration — Public policy — Cassation Court special ruling — Tomb of Fedor Martens — Trump impeachment.
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Discussion Board

ALEXANDER A. VISHNEVSKIY ON INITIAL — IDEAL — STRUCTURE OF THE BANKING SYSTEM
This article attempts to take a non-conventional view on the banking system. The author considers the conventional view to be insufficient as the banking system is seen as a combination of banks and regulators but banks and regulators alone are unable to create any banking activity without the client the is usually “out of picture” of the banking system. The author’s approach is that the “initial state” of the banking system is non-contradictory, its elements are not in opposition to each other under the umbrella of legislative attempts to create an artificial balance between them, but rather they are in cooperation with each other. The author insists that this type of banking system is supposed to be the strategic goal of banking regulation, which so far is limited to a chain of sophisticated responses to crises. To achieve this goal the scholars are supposed to concentrate on a multidisciplinary approach.
Keywords: banking system, balanced banking system, initial structure of banking system, strategy of bank regulation

 

HOLGER ZSCHEYGE BIFURCATION OF LEGAL BUSINESS
This article discusses the trend of the second component of the legal business — the process of providing services (legal delivery) and their management. Legal delivery will become a crucial differentiator for law firms (and for legal departments to a certain extent) in an increasingly commoditised environment of legal services. The author comes to the conclusion that in order to remain effective in the market, lawyers should think about taking on additional operational risks previously imposed on clients, and the most appropriate tool for this is LegalTech.
Keywords: legal services market, legal business, commoditisation, business model transformation
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Polina V. Krutikhina DECRIMINALISATION OF DOMESTIC VIOLENCE: THREE YEARS LATER
This research paper analyses the results of recent decriminalisation of family battery, summarises court statistics and international practices in combating domestic violence. The author argues that family battery should be punished more severely than battery against unfamiliar people, however the concept of ‘close person’ from the previous version of Art. 116 of the Criminal Code should be revised. It is found that punishment in cases of domestic violence is ineffective, since the fines imposed by the court will be often paid out of the family budget. The author agrees with the following position of the European Court of Human Rights and the United Nations: domestic violence in Russia must be criminalised again and private prosecution in such cases is unacceptable. The paper also summarises the positive experience of restorative justice in cases of domestic violence.
Keywords: domestic violence, battery, decriminalisation, criminal policy, European Court of Human Rights
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Theory and practice

IRINA S. SHITKINA THE ROLE OF MAJOR AND RELATED PARTY TRANSACTIONS REFORM IN THEORY AND PRACTICE
The purpose of this article is to analyse current legal regulation, corporate practice of using dispositive provisions of the law, and application of the legislation on extraordinary transactions in the light of the legal positions expressed by the Supreme Court in its Plenary Resolution dated June 26, 2018 No. 27 “On Challenging Major Transactions and Related Party Transactions”. The author identifies the advantages and disadvantages of the extraordinary transactions reform, as well as the impact of the reform on the development of other legislation and practice of its application. The final conclusion indicates that the balance of interests has not yet been reached in legal regulation: on the one hand, in favour of creditors, it is required to prove the counterparty’s awareness of certain circumstances in order to declare transactions invalid; on the other hand, the fact that the counterparty is charged with “due knowledge” indicates precariousness of the latter’s position.
Keywords: major transaction, related party transaction, extraordinary transaction, corporate approval of transactions
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ANASTASIYA F. PYANKOVA MATRIMONIAL PROPERTY AFTER DIVORCE: SEARCHING FOR A BALANCE OF INTERESTS
There are various approaches to the legal regime for matrimonial property after divorce: such property can be transformed into common shared property; the current legal regime can be preserved; or Article 253 of the Russian Civil Code can be applied. The last approach is followed by the Supreme Court of the Russian Federation. This approach is being criticised both from the dogmatic point of view and from the legal policy perspective. It is seen as seriously violating the property rights of a bona fide former spouse. In order to ensure the balance of interests of spouses in civil-law transactions, it is proposed to keep the legal regime, which is provided for by the Family Code of the Russian Federation, for a certain period after divorce.
Keywords: joint property, matrimonial property, divorce, division of property, spousal consent for transaction, good-faith acquirer, balance of interests
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MIKHAIL V. BANDO TERMINATION OF OWNERSHIP AND OTHER REAL RIGHTS FOR LIVING ACCOMMODATIONS IN THE CASE OF THRIFTLESS HOUSING MAINTENANCE
This paper considers the structure of compulsory repayment of living accommodations in the case of thriftless housing maintenance enshrined in the Civil code of the Russian Federation. It is concluded that there is no good reason for granting municipalities the exclusive right to demand sale of such living accommodation (or entitling municipal and authorised public authorities as set forth in the amendments to the Civil Code of the Russian Federation). It is argued that it is advisable to grant such right directly to persons whose interests are infringed by thriftless housing maintenance. This remedy is critically analysed. An alternative is suggested to the voluntary tender sale of a housing by its owner. Besides, the possibility of having a living accommodation vacated before its sale is considered. Deferring to the interests of the citizens who do not have ownership rights but retain the occupancy right in the case of sale is studied as a separate issue. Should such citizens be responsible for thriftless maintenance, their occupancy right needs to be terminated as well. However, in the absence of fault such right has to remain even after the auction sale of accommodations. Therefore it is suggested to grant citizens the privilege of buying such accommodation at the market price.
Keywords: termination of ownership, living accommodations, compulsory sale, occupancy right, in rem right, tender
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ROMAN YU. MATYUSHENKOV, MARIA A. FILATOVA REASONABLENESS OR FORCED LOSSES FROM JUSTICE (REVISITING REIMBURSEMENT OF LEGAL EXPENSES FOR REPRESENTATIVE’S SERVICES)
This article offers a comparative analysis of one of the most controversial current legal issues, namely the reasonableness of legal fees recovery and similar remedies. The authors come to the conclusion that domestic courts’ approaches do not meet the standards of certainty and predictability. At the same time, other legal systems have developed original approaches to the determination of legal fees to be reimbursed by a losing party. The article gives a comparative perspective over legislation and case-law in other jurisdictions. In the United States and United Kingdom, courts have developed a detailed test to determine the reasonableness of the legal costs incurred. In Germany, the amounts to be reimbursed are established by law. The authors conclude that it is necessary to introduce a clear methodology and predictable criteria for determining the reasonableness of expenses per representative in the Russian legal system. The basic principle may be the presumption of reasonableness of expenses incurred, which is enshrined in the legislation or explanations of the higher courts.
Keywords: legal costs, attorney’s fees, criterion of reasonableness, proportionality, judicial case-law
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IRINA N. LUKYANOVA PROTECTING INDIVIDUAL RIGHTS IN CLASS ACTION
This article is based on the idea that the effectiveness of the protection of the rights of individuals bringing a class action under the civil procedure rules of the Russian Federation depends on the simplicity and ease of judicial process, including control over the activities of the person who leads the class action. The status of group members who have not joined the class action and those who have joined the class action is revealed. There is a critique of granting the right to enter class action to the group members who do not agree with the class action claims. Inefficient execution of court decisions in class actions is predicted.
Keywords: class action, plaintiff, intervenors, court costs, procedural guarantees, judicial activity
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