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ARCHIVE FOR 2020    RUSSIAN

Июнь 2020

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

All-Russian Voting as a Special Expression of Will
Comments by A. Buzin, A. Lyubarev, I. Starostina, A. Kynev
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Topic of the issue

L.V. Golovko Branch Principles in Codes: A Pedagogical Tool or a Legal Instrument?
All post-Soviet Russian codes contain principles of the corresponding branch of law. Are these principles normative or declarative? If they are normative, what is their place in the system of norms regulating this branch of law? Is there a formal hierarchy between the principles and other norms of the code? Is it possible to consider consolidation of principles in the code as one of the newest ways to overcome hypothetical regulatory conflicts, i.e. contradictions between simultaneously acting legislative norms? These and related questions neither have their answers nor have been seriously posed in Russian doctrine. Periodically similar problems arise also in the Western legal science, which is proved by recent French discussion concerning the legal meaning of the preamble to the Criminal Procedure Code of France, introduced in June 2000 and listing the principles of the French criminal process.
Keywords: principles, code, branch of law, rule of law, hierarchy, criminal procedure
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S.V. Bakhin, A.S. Ignatev International Treaties: Measurement of Conflicts
One of the most difficult issues of international law (both public and private) is the conflict between the provisions of various international treaties. With the increasing number of international agreements and the level of details they contain, conflicts between them are becoming more numerous and diverse. Rules on the resolution of such conflicts are provided for in both international law and national legislation. In the legal system of the Russian Federation, the regulation of conflicts between international agreements is not always consistent. It is, therefore, proposed that special provisions regarding the matter be included in the Russian Federation Law “On International Treaties of the Russian Federation”. It is noted that the status of treaties concluded on behalf of the Eurasian Economic Union with third states be specifically addressed in the Russian Federation legal system.
Keywords: public international law, private international law, foreign law, international treaty, multilateral international treaty, bilateral international treaty, collision (conflict) of international treaties
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S.I. Sobolev Conflict of Rules on the Sequence of Fulfillment of Obligations in Favor of Several Creditors and the Way of Conflict Resolution
Russian law contains rules that give a lender priority in obtaining performance under an obligation. Such rules can be found in various regulatory acts, and they contradict each other. As a result, in the absence of a universal rule on the priority in creditors’ rights satisfaction problems are discovered in law enforcement practice. The author discovers a number of them and offers a way how to resolve the conflict.
Keywords: order of priorities, priority
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N.A. Dmitrik Experimental Regimes: Legal Theory View
The article analyses mechanisms which either cause backwardness of legislation or, on the contrary, help the legislation to embrace changing social relations. The mechanisms of the second type may include nonmandatory rules, legal principles, elastic rules, temporary regimes and self-regulation.
Keywords: experimental regimes, legal certainty, legal functions, elastic rules, probability distribution
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Discussion Board

B.M. Gongalo Legal Complexity
The article traces the origins of complex approaches in legal studies. Based on the analysis of the manifestations of such approaches, the author assesses their theoretical and practical significance, applicability or, on the contrary, inadmissibility in certain areas.
Keywords: public law, private law, mixed relations, regulation subject, complex branches of law, codification of complex branches of law
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V.S. Mikhailov Influence of Aggrieved Person’s Predisposition on Compensation for Harm Caused to Him
There might be cases where harm caused to aggrieved person’s life and health was attributable not only to wrongdoer’s conduct but also to individual characteristics of aggrieved person’s organism. The present article deals with the issue of the influence of aggrieved person’s predisposition to certain diseases and injuries on compensation for physical harm caused to him.
Keywords: causation, foreseeability of harm, predisposition, thin skull rule
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P.V. Khlyustov Hot Summer 2020
Ecological disaster in Norilsk — Cancellation of self-isolation in Moscow — Car accident with Mikhail Efremov and celebrated criminal cases in June — Progressive PIT scale — Voting for the amendments to the Russian Constitution
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Press Release

 

Theory and practice

G.A. Esakov Calculating Losses’ Elements in the Criminal Code
The article discusses the calculating losses’ elements in the criminal code, their development and significance today. These elements are widespread practice in defining economic crimes. There are some general problems with defining their substance and methods of their calculation. Basically, they use as a tool for creating aggravating circumstances with regard to economic crimes, so they are designed as a workable mechanism of inflicting the punishment. However, the empirical data shows that there are either disbalance in penalisation (that is number of persons convicted for crime with aggravating element of such type is larger than number of those convicted for a “simple” crime) or disbalance in application of punishment. Using as an example a fraud in especially gross size, it may be shown that there is not any clear impact of size of stolen property on applied punishment. The historical research shows that in Empire’s era calculating losses’ elements were not widespread in the criminal code. In Soviet time, such elements were used more and more. Up to the late 1980s, some of such elements were approximately defined in case law; however, the most part of these elements were not clearly defined either in case law or in scholar publications. To improve the effectiveness of calculating losses’ elements, the author proposes some steps de lege ferenda. The main step would be calculating losses with regard to economic status of the victim that is using diminishing of company’s assets in percentage as a threshold. The second step would be limiting use of calculating losses’ elements in criminal legislation.
Keywords: fraud, damage, constituent element of crime, punishment, economic crimes, gross size
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A.D. Frenkel Legal Nature of Expulsion of LLC Member: Is Fault Required for Expulsion?
This article analyses the legal nature of expulsion of a member from a limited liability company. Based on his research, the author concludes that proving fault is not required in expulsion litigation. The author also argues that the expulsion of a member aims to protect company’s interests and therefore should not be qualified as fault-based liability of a member.
Keywords: expulsion from limited liability company, member, fault, protection measure, liability
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D.L. Davydenko Consideration by Arbitrazh Courts of Cases on Challenging Arbitral Awards
This paper provides an overview of the legal regulation and practice of Russian state arbitrazh (commercial) courts in cases of challenging arbitral awards. The paper specifies legal grounds and procedure for challenging arbitral awards in Russia, the typical arguments of the applicants in contesting such awards. A tendency towards the setting aside by the state courts of the arbitral awards has been identified, the relevant statistical data are provided. Separately, the application by the courts of a public policy clause is analysed. Also, the paper examines the specific examples of the effect of setting aside the arbitral awards in Russia on the possibility of their subsequent enforcement internationally. The author argues for a more consistent recognition by the Russian courts of the importance and value of arbitration as a widely used method for resolving disputes, including those arising in international trade.
Keywords: arbitral proceedings, international commercial arbitration, challenging arbitral awards, public policy of Russia
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Foreign experience

S.V. Glandin, F.Yu. Panov Sanctions and Restrictive Measures of the United Kingdom Before and Past Brexit
On 31 January 2020, the United Kingdom did exit European Union following 23 June 2016 referendum whereby the majority decided to leave the EU; and signing of respective Withdrawal Agreement with that Union. In the way toward Brexit the Parliament passed in 2018 Sanctions and Anti-Money Laundering Act and following that the country has been creating a separate sanctions mechanism pending complete partition with the EU. Shortly before the Brexit polling of 2016 the Kingdom launched its own sanctions watchdog — Office of Financial Sanctions Implementation (OFSI). Following failure to restrain foreign corrupt officials, gross human rights violators, dictators, moneylaunderers etc. by way of Unexplained Wealth Order, the unilateral sanctions will allow the Government to do so by way of denying blocked persons from from entering Britain. The UK sanctions policy will be closely coordinated with the EU rather than aligned. But shaping its own sanctions paradigm, the UK has had good options to choose: the EU with human rights as a paramount value despite its obligations stemming from articles 25 and 103 of the UN Charter; the USA, where its national security interests prevail over human rights; and Switzerland with its autonomous sanctions policy which is tending to align that of EU, but does so only if the Confederation consider it either expedient or rewarding. Nonetheless, the Great Britain is a long-standing unilateral user of trade restrictions and associated sanctions. It was the first that pursuing its foreign trade objectives during and between World Wars invented and introduced ‘black’, ‘grey’ and ‘white lists’. Since it is the fifth World economy per GDP, none shall disregard its power and economy sanctions. This is why the authors would like to shed some light on UK current sanctions policy regulations before and past Brexit and to opine on its future development.
Keywords: economic sanctions, financial sanctions, restrictive measures, United Kingdom, European Union, Brexit, OFSI
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Yu.V. Smirnov History of Judicial Lustration in France
The article is dedicated to a massive purge of the judiciary by the Republican government of France in 1879–1883 at the dawn of the Third Republic. Dubbed the révolution judiciaire by historians, it is seen as a turning point in the history of the French judiciary. Following the purge of civil servants, it resulted in the removal of most prosecutors and a quarter of judges. The author examines the historical context of these events, with special attention being paid to the Republicans’ rise to power from 1871–1879 and the ideological motives of the purge (anti-clericalism). A brief look at the turbulent history of France between 1789 and 1883 makes it clear that the government, having come to power by the way of revolutions and coups, showed a limited respect to the irremovability of judges (formally enacted in 1799), and judicial purges were routinely practised in this period of the French history. The author argues, with the benefit of hindsight and contrary to what the Republicans claimed at that time, that the Republican regime became consolidated not because of the purges, but rather as a result of giving up this practice in the ensuing period of time.
Keywords: purges, lustration, judiciary, Third Republic, France, French revolution
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