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ARCHIVE FOR 2020    RUSSIAN

Январь 2020

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Legal Summary of 2019
Comments by P. Krasheninnikov, L. Golovko, R. Bevzenko, G. Esakov, D. Stepanov, Yu. Starilov, M. Galperin, A. Asoskov, L. Novoselova, V. Kalyatin, A. Nesterenko, D. Tsygankov, A. Bryzgalin, N. Rasskazova, D. Maleshin, M. Tserkovnikov, V. Naumov
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Topic of the issue

A.N. Vereshchagin The Mechanism of Making Precedents by the Civil Cassation Department of the Ruling Senate (1877–1917)
The article is dedicated to a little known subject — the mechanism of creating precedents in the Russian Empire after Great Reforms. It analyses the views of contemporaries on this mechanism and gives extracts from previously unknown documents, bringing them to light for the first time.
Keywords: judicial precedent, Ruling Senate, Civil Cassation Department, law of the Russian Empire
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K.L. Branovitsky, I.G. Rents, V.V. Yarkov Ensuring Uniformity of Judicial Practice in Russia and Abroad: Searching for Balance
This article considers from a comparative legal point of view the issue of ensuring the uniformity of judicial practice, as well as the relation of the uniformity of judicial practice to the principle of independence of judges, which is relevant in any legal order. It offers general characteristics of the existing German and French models of ensuring the uniformity of judicial practice and suggests improvements in the domestic legal order. One of the key points of foreign experience is not so much about conciliation or overly formal procedures for reconciling differences / deviations in judicial practice through conciliation bodies, but it consists in an effective mechanism for detecting problematic issues and initiating an open discussion of the need to change / maintain judicial practice (in Germany, even with the possible participation of the parties). Such open discussions in the development of uniform approaches to the most complex, important and / or new legal issues along with open discussions involving representatives of the academia and professional community could undoubtedly increase the effectiveness of the existing mechanism in the domestic legal order.
Keywords: unification of judicial practice, German civil procedure, French Court of Cassation, foreign civil procedure
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P.D. Blokhin Participation of the Constitutional Court in the Unification of Judicial Practice
The author argues that in certain European states, including Russia, the uniformity of judicial practice is provided both in the consideration by higher courts of specific cases at cassation level and in the publication by higher courts (or their quasi-judicial panels) of abstract “guiding explanations”. This is perfectly in line with the specialised judicial constitutional oversight which exists in these legal systems and, using its inherent methods (including the principle of proportionality), fine-tunes and adjusts such guiding clarifications. In this way, the different parts of the judicial system organically complement each other, thereby reconciling the tasks of ensuring legal certainty, predictability of judicial practice and its completeness, and the smoothness of judicial protection of fundamental rights of the individual.
Keywords: uniformity of judicial practice, guiding explanations, judicial precedent, constitutional review
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A.N. Medushevsky Global Constitutionalism: Precedent in Transnational Legal Communication
Global constitutionalism is the influential theoretical construction consolidating the whole scope of interactive processes on the border of international and national law in formation of a new global transnational or supra-national legal and political reality. Hypothetically, the relative diminution of the role of national constitutionalism against its international counterpart paved the way for the growing role of international jurisprudence in constitutional matters. That development produces a new type of conflicts between international and national courts in the understanding of constitutionalism, its nature, and its role in a new cosmopolitan reality. The new conflict has its obvious representation in the new phenomenon of precedents of global or transnational law as opposed to precedents more traditional in nature. The author analyses the processes of integration and fragmentation in international constitutional law showing how the balance shifts between hard and soft law, traditional and new concepts of legal precedent and judicial activism regarding proportionality theory, the structure of the sources of law, transformative or transitional jurisprudence, and the growing polarisation of the multi-layered constitutional jurisprudence.
Keywords: global constitutionalism, transnational law, international constitutional law, integration and fragmentation of legal order, hard and soft law, sources of law, concept of legal precedent, international and national courts
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M.Yu. Sorokin Looking for “Political” Constitutionalism in Russia (The Role of Non-Judicial Interpretation of the Basic Law)
The Russian constitutional doctrine generally overlooks the constitutional conventions that link various constitutional understandings as a source of law mainly with a system of uncodified constitution. However, these conventions are equally important even for the governments having codified constitutional acts. The French Third Republic and Fifth Republic serve as a good example. In Russia, there is a number of permanent constitutional practices related to the operation of executive, legislative and judicial branches. The constitutional conventions could give both praetor legem and contra legem interpretations of formal rules. However, the institutionalisation of constitutional practices is hindered by the actual state of the Russian political system.
Keywords: constitutional conventions, political constitutionalism, French Constitution, Russian constitutional conventions, living constitution
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A.N. Vereshchagin, V.B. Rumak On the Verge of а Constitutional Reform
Constitutional affairs of the Kremlin — New Government and new Prosecutor General — Business and criminal law — Continuation of the “Moscow case” — Presumption of good faith in the Unified State Register of Rights on Real Estate and other legislative novelties — Anniversary of the RF Constitutional Court’s Resolution on precedent
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Discussion Board

V.M. Zaripov Can Plenary Resolutions of Supreme Courts Be Challenged?
In terms of Plenary Resolution No. 53 of the Russian Supreme Arbitrazh (Commercial) Court dated 12 October 2006, an issue is raised regarding the legal nature of plenary resolutions passed by the Russian Supreme Arbitrazh Court and the Russian Supreme Court, and whether such resolutions can be challenged before the Russian Constitutional Court. The author uses arguments for the regulatory nature of such legal instruments.
Keywords: definition of regulation, official interpretation, Plenary Session of Russian Supreme Court, challenging regulation in court
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A.P. Sergeev Misinterpretation of Civil Law Provisions in Criminal Proceedings
This article deals with the application of certain civil law provisions in criminal proceedings. In particular, it analyses imputing abuse of office to the corporate board members and applying against them measures of procedural compulsion such as removal from office; criminal liability for misconduct of senior management officials in companies with state participation; and misinterpretation by law enforcement and criminal justice authorities of the concept of criminal damage.
Keywords: board member, abuse of office, management and control functions, removal from office, controlling interest, civil action in criminal case, concept of damage
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Press Release

 

 

Theory and practice

Yu.B. Fogelson Russian Civil Law in Terms of Sociological Jurisprudence (Standards of Proof, Compensation for Harm to Life and Health)
This is the concluding article in the series devoted to the assessment of Russian civil law and legal consciousness of Russian lawyers from the perspective of the functional approach to law. The first publication considered the main theoretical findings, while subsequent articles confirmed these findings empirically. The empirical material consists of several episodes discovering the life of modern Russian civil law. Six of them (Civil Code Supremacy, Principle of Good Faith, Unfair Contract Terms, Protection of Ownership, Principles of Real Estate Turnover Regulation, Collection of Damages) were considered in the previous articles. This article explores the standards of proof as a follow-up on the recovery of damages and compensation for harm caused to life and health.
Keywords: standards of proof, sociological jurisprudence, compensation for harm to life and health
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A.V. Neznamov Concept for Artificial Intelligence and Robotics Technology Regulation in Russia
The article is devoted to the main theoretical and practical legal issues in developing legislation on robotics and artificial intelligence technologies. It describes approaches to the regulatory concept for these technologies and its place in the structure of relevant strategic plans and applicable regulations. Key discussion questions and directions for the development of substantive legislation in Russia are presented.
Keywords: artificial intelligence, robotics, regulation, laws, concept, development strategy
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D.R. Arnautov Shares with Different Rights in the United States and Russia
The Russian Government has recently proposed amendments to the Federal Law on Joint Stock Companies that allow Russian joint stock companies the issuing of ordinary shares with a varying scope of corporate rights (also known as dual class stock). In the author’s opinion, the US law is one of the relevant examples of dual class stock regulation to rely upon when drafting new legislation in Russia, since the US was the first country to introduce this type of shares. The paper gives a brief historical overview of dual class stock regulation in the United States, which includes three stages: 1) the 1920s when shares carrying different rights were first introduced; 2) the 1980s when corporate practice was significantly expanded with new types of shares carrying different rights; and 3) the 1990s, modern times, when dual class stock advanced to its present level. In addition, the author offers a classification of the main types of shares that carry different rights, dividing them into supervoting shares, lower voting shares, time-phased shares, and other classes. There are restrictions in Russian law that do not allow for dual class stock in joint-stock companies — these are Articles 31 and 59 of the Federal Law on Joint-Stock Companies. The author also writes about institutions such as preferred shares, fractional shares and cumulative shares that exist as deviations from the mandatory rules. As a result of his research, the author concludes that the opportunity is there in principle and businesses can benefit from having incorporated into Russian law ordinary shares that carry different rights.
Keywords: ordinary shares, categories and types of shares, classes of shares, dual class stock, US corporate law
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