ARCHIVE FOR 2020 RUSSIAN
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Декабрь 2020
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.N. Kokotov Preliminary Control of Legal Acts by the Constitutional Court of Russia Based on the analysis of Russian and foreign experience, the article
reveals the powers (available and possible) of the Constitutional Court
of Russia in the field of preliminary control of the constitutionality of
various types of legal acts. Special attention is paid to the problem
analysis of the latest constitutional amendments, which included
in the sphere of such control federal laws before their signing by
the President of the Russian Federation, their drafts and laws of
the subjects of the Russian Federation before their official publication.
The article shows the features of mandatory and optional forms
of checking the constitutionality of these acts and proposes to
discuss the introduction of preliminary control of constitutionality in
the procedure of the adoption of the new Constitution of Russia.
Keywords:
the Constitutional Court, the Constitution, the preliminary constitutional control, constitutionality of legal acts, constitutionality of drafts, eternity clause
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A.V. Ilyin Revision of Judicial Acts on the Basis of Decisions of the Constitutional Court of Russia Often, after a court has made a decision on a case, a decision of
the Constitutional Court is adopted, in which the legal norm underlying
the decision of an ordinary court, is recognised as unconstitutional
or is given a constitutional interpretation which differs from
the one embraced by the ordinary court. In this case, can this court
decision be reversed on the grounds that it contradicts the position
of the Constitutional Court? The article deals with the questions of
whether such a discrepancy of positions is an error of an ordinary
court, how it can be qualified, whether competition in this case is
possible between cassation, supervisory proceedings and the revision
of judicial acts on new circumstances, what are the limits for giving
retroactive effect to the decision of the Constitutional Court. The ideas
outlined in the article make it possible to assess the latest changes in
the legislation on constitutional proceedings, which are also analysed
in the work from a procedural point of view.
Keywords:
appeal, cassation, supervision, revision of judicial acts on new circumstances, decisions of the Constitutional Court, retroactive effect of judicial acts
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A.S. Ispolinov New Powers of the Russian Constitutional Court to Review the Constitutionality of Decisions of International Courts and Arbitration Tribunals This article analyses amendments to the 1993 Russian Constitution
and the 1994 Federal Constitutional Law “On the Constitutional Court
of the Russian Federation”, which relate to the constitutional control
over decisions of interstate bodies and international and foreign courts
and tribunals. The author concludes that, although these provisions
do not fully comply with the message of the Presidential Address
to the Federal Assembly regarding the operation of international
law within the national legal order, the amendments are in line with
the long-awaited, already initiated by the Russian Constitutional Court
and corresponding to the practice of other states transition from
the absolute priority of international law to the conditional priority, in
which control over compliance with these conditions is in the hands
of the Russian Constitutional Court, which will interpret and apply
these new norms in practice. This is not a barrier to the enforcement
of decisions of international and foreign courts, but the establishment
of ‘red lines’, i.e. conditions under which the Russian Constitutional
Court may, in exceptional cases, come to the conclusion that such
decisions cannot be enforced.
Keywords:
amendments, Constitution, priority of international law, execution of the decisions of international courts, Constitutional Court of Russia
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M.Yu. Fedorova Constitutional Compliance Assessment in the Sphere of Social Protection The article analyses the constitutional compliance assessment in the social
security sphere and provides the major directions of its influence on the legal
regulations of relevant relations. The author emphasises the complexity of
the statutory regulation of the Russian social security system and identifies
the following major novels of the 1993 Russian Constitution: a principle of
the social state, constitualisation of the social protection concept (including its
correlation with the term “social security”), the allocation of the social protection,
including social security, to the joint jurisdiction of Russian Federation and its
regions and republics, the universal nature of judicial protection and its extension
to social rights. The above-referenced factors affected the development of
the constitutional compliance assessment in the social protection sphere which
results in the following aspects: substantive, instrumental, and dogmatic. From
the substantive perspective, the author demonstrates the effect the decisions
of the Constitutional Court of the Russian Federation have on the creation of
major principles of legal regulation of social protection, development of its
major forms (compulsory social insurance, state social security, and social
assistance), as well as the regulation of specific types of social security and
assistance. The instrumental aspect of the constitutional compliance assessment
in the sphere of social protection does not differ from its other spheres as it
applies the same means of constitutional judicial proceedings. The article
provides examples of the decisions of the federal Constitutional Court that
illustrate the effect constitutional compliance assessment has on the statutory
development and securing consistency of the application of the law in the sphere
of social protection. The dogmatic aspect of the constitutional compliance
assessment in the discussed sphere is demonstrated as the effect the rulings
of the Constitutional Court have on extending the scientific perspectives of
the nature of social rights and the means of its’ protection.
Keywords:
constitutional compliance assessment, social state, social protection, social security, social assistance
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P.D. Blokhin Is There Room for Economic Analysis in the Theory and Practice of Constitutional Adjudication? The author hypothesises that economic analysis of law (law and
economics) may be sufficient to resolve certain constitutional and
judicial disputes. This provision is true if two conditions are met:
(1) so-called economic rights constitute the subject of the dispute and
(2) the disputed issue is not sufficiently resolved by traditional legal
sources. The author illustrates this assumption by three examples:
assessment of the redemption value of the land plot in case of eminent
domain proceedings, reduction of compensation for infringement of
copyright and related rights, and the bank’s liability to the depositor
for the actions of its employee. All three cases show that the court
can equally hide behind a decision found in a similar case or scientific
doctrine, or base its own judgment on economic and legal arguments.
As a theoretical basis for the study, the author refers to the works of
famous scientists: G. Calabresi, A.D. Melamed, R. Posner, H. Koziol,
K. Mathis, A. van Aaken, R. Cooter, T.S. Ulen, as well as G.A. Gadzhiev,
A.G. Karapetov, D.V. Tyutin and others.
Keywords:
economic analysis, law and economics, constitutional justice, justice and efficiency
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A.P. Evseev Political and Legal Values of Constitutional Judges through the Prism of Judicial Dissent: A Psychological Approach The article deals with the psychological aspects of constitutional
litiagation in Russia and worldwide. The author tries to find out
how the political and legal philosophy of judges of constitutional
and equivalent courts manifests itself in judicial dissent. Factors
arising as the case progresses and potentially affecting the initial
ideas of constitutional judges are analysed. Legalistic, attitude and
strategic approaches, which are three main methods to assess
judicial behaviour recognised in Western psychological science, are
highlighted. The concept of psychological attitude is introduced as it
applies to court proceedings, and its role in court decision making is
demonstrated through concrete examples. With the help of the analysis
of judicial dissent, the author reveals stable nature of the legal views
of judges of the Constitutional Court of the Russian Federation, which
approximately allows to predict their position in similar cases. At
the same time, the values and specificity of the arguments laid down
in the dissenting opinions and the stylistics of their presentation are
taken into account. The conclusion is made that, under the current
circumstances, judicial dissent is a suitable opportunity for judges to
express their views publicly in relation to a specific case which has
caused discrepancies within the panel.
Keywords:
Constitutional Court of the Russian Federation, psychology, legal attitudes, judicial dissent
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Judicial practice. Comments
Discussion Board
S.A. Belov Constitutional Limitations upon Provisional Application of International Treaty Which Provides for Jurisdiction of International Investment Arbitration The decision of the Hague Court of Appeal of 18 February 2020 upholding
the decision of the Arbitration Tribunal on its jurisdiction in the Yukos case has
provoked the discussion of the wide range of issues covered in both decisions.
The consideration of this investment dispute in international arbitration and
its subsequent review in Dutch national courts as to the legality and validity
of the arbitral award on its jurisdiction were not confined to the application of
international law, in particular the Energy Charter Treaty (ECT) rules. Since
only those provisions of the ECT which do not contradict the domestic law of
the parties to the ECT can be applied provisionally, the issue of jurisdiction of
an international investment arbitration based on the ECT was actually linked
to the issue of permissibility of provisional application of the ECT provisions
under the Russian law. The analysis shows that this question of domestic
law could be examined by both the arbitration and the Dutch courts only
as a question of fact and not as a question of law, i.e. the arbitration and
the court were deprived of the right to interpret and apply the domestic law of
another country independently. The rules of Russian law include provisions
of the Constitution and legislative acts, which elaborate on its provisions,
regarding the allocation of powers between the legislative and executive
authorities to decide on the provisional application of a treaty recognising
the jurisdiction of international investment arbitration on behalf of the state.
Principle of separation of powers and other norms do not give powers of
taking such a decision to executive authorities, including the Government of
the Russian Federation, especially taking into account that such a decision
has the nature of an act of sovereign will of the state.
Keywords:
ECT, international investment arbitration, Yukos case, national and international law, separation of powers, power to sign international treaties, provisional application of international treaties
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O.P. Pleshanova Eve of the Great Grinding Vaccination against COVID-19 and “No Alcohol Law” — Act on remote work — Constitutional legislation — Renovation — Repressive package of laws — Blocking of YouTube — Battle of sanctions — “Rodchenkov Act” — Denunciation of tax agreement with the Netherlands — Yukos case and petition to the Russian Constitutional Court — Case on acquisitive prescription — Artemyev’s resignation — Bitcoin tax and regulatory gaps — Ecosystem and artificial intelligence — Ways of earning — Crisis of trust in power
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Press Release
Theory and practice
D.I. Stepanov Dangerous Countermajoritarian Approach in Declaring Corporate Resolutions as Null and Void (Part 2) This article is a continuation of a series of publications analysing
commercial courts practice regarding voidable decisions (resolutions)
of corporate meetings (general meetings of shareholders, board
meetings / executive bodies meetings), while courts tend to declare
as illegal acts those corporate decisions which have been adopted by
majority solely to negatively affect minority shareholders. The author —
borrowing the term from constitutional scholarship — suggests to call
this tendency as countermajoritarian approach in corporate law practice.
In this paper the analysis of court practice is limited mostly to a case
law of higher courts (cassation arbitrazh courts and the Supreme Court
of the Russian Federation) on voidable corporate resolutions, passed by
shareholders and directors of limited liability companies and joint-stock
companies. The second part focuses on assessing the theoretical basis
and highlighting practical cases involving challenges the decisions of
assemblies on the grounds of countermajoritarian approach.
Keywords:
general shareholders meeting(s), voidable decision(s) / resolution(s) of shareholders, countermajoritarian approach in corporate law, equal treatment in corporate law, majority in corporate voting
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D.V. Lorents Acquisition of Immovable Property from the Time of Ownership: New Rules for Calculating Terms From 1 January 2020, the acquisition limitation period is calculated
from the day when the property enters into open ownership of a bona
fide purchaser or his ownership right is registered in the real estate
register, which ensures the independence of usucapio from the statute
of limitations on vindication. The author defines features of acquisition
of the property right by a possessor both in cases of register and
off-register limitation of ownership. Amendments to Articles 234
and 302 of the Civil Code of Russia did not eliminate the problem
of asynchronous calculation of claim and acquisition limitation, still
the legislator, aspiring to limit the public vindication of residential
premises from the possession of bona fide purchasers, has provided
for a three-year limitation for the record in the Unified State Register of
Real Property of a bona fide purchaser (register limitation), which has
an ambiguous legal nature and combines the features of acquisition,
claim and objective limitations.
Keywords:
acquisitive prescription, limitation period, objective prescription, register prescription, real estate, bona fide purchaser, vindication
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