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ARCHIVE FOR 2020    RUSSIAN

Декабрь 2020

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Digital Asset Turnover in Russia
Comments by K. Bormasheva, L. Novoselova, R. Yankovskiy, M. Zhuzhzhalov, M. Bashkatov, D. Ogorodov, G. Esakov, D. Kirillov, M. Uspenskiy
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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

N.Yu. Rasskazova Inheritance of Grants Given to Veterans and Their Family Members to Purchase Housing (Commentary to the Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation No. 37-KG20-2-K1 Dated 13 October 2020)
The author analyses contradictions in legislation and court practice regarding the inheritance of money allocated to a veteran (his family member) as a grant to purchase housing. It criticizes the position of the Supreme Court of the Russian Federation expressed in disputes over the inheritance of these funds. The article includes proposals to the legislator aimed at eliminating legal uncertainty in the regulation of relevant relations and establishing a fair balance between private and public interests in resolving the problem.
Keywords: inheritance, composition of the inheritance, measures of social support of veterans, grants, rights inseparably linked with the personality
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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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