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ARCHIVE FOR 2021    RUSSIAN

Май 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Executive Immunity for Sole Occupancy: Has the Constitutional Court Cut the Gordian Knot?
Comments by L. Mikheeva, M. Galperin, V. Yarkov, R. Miftakhutdinov, A. Bezrukov, B. Gongalo, G. Ulyotova, M. Erokhova, D. Kletochkin
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Topic of the issue

A.E. Shastitko, A.A. Kurdin Is Regulatory Reform 2.0 Necessary and Possible?
The article assesses the economic aspects of a possible new stage of the state regulation reform. The authors explain the necessity of adjusting the regulatory system from the standpoint of optimising the administrative burden on business activity and taking into account the risks of market failures and government failures as factors for strengthening or weakening regulatory intervention. The paper systematises Russian regulatory developments in recent years and assesses their intermediate outcomes on the basis of sociological studies. These results suggest that there is a demand for new regulatory reform.
Keywords: regulatory reform, regulatory impact assessment, market and government failure
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L.K. Nevidaylo, A.A. Ryabov Protecting and Defending the Rights of Entrepreneurs in the Field of Surveillance and Oversight
Based on experience of regional business ombudsmen and considering objectives and tasks of the reform of control (surveillance) actions, the article outlines the main problems that the entrepreneurs confront during state control (surveillance) procedures and provides the characteristics of level of administrative pressure on business. The special attention is paid to the meaning and correlation of forms of protection of rights of entrepreneurs in the sphere of control (surveillance); also the most dangerous ways of evasion of law by control (surveillance) authorities are evaluated. By the example of activity of Roszdravnadzor the authors provide a new approach to understanding the category of ‘non-regulatory act’; they point out that precision and certainty of this category is the pre-requisite of protection of rights of entrepreneurs in the most difficult situations of violation of rights by control surveillance authorities.
Keywords: reform of control (surveillance) activities, administrative pressure on business, state control (surveillance), protections of rights of entrepreneurs
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V.M. Zaripov Why Is the Tax Code No Longer the Inspector’s Handbook?
Tax relationships are viewed as an example of situations when a prohibitive type of legal regulation is inconsistent with the activities of state authorities. Against the backdrop of the law losing its value, a lack of due judicial protection and an extremely strong tax service, the ordinary methods of individual protection of taxpayers are ineffective. There is a need to transition to collective methods of protection.
Keywords: principle of legality, type of legal regulation, protection of taxpayer’s rights
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M.A. Mikheenkova Procedural Coercive Measures against Entrepreneurs
The article names and briefly analyses current problems of applying coercive procedural measures to businessmen. The author distinguishes two aspects of the issue: applying coercive procedural measures within criminal cases opened illegally or unreasonably upon facts of business activity, and unreasonable application of coercive procedural measures themselves. The article analyses most widespread abuses and violations in this sphere on basis of the case law.
Keywords: white collar crime, coercive procedural measures, business protection
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Discussion Board

U. Hellmann, D. Stage Compliance Programs in Business Enterprises and Self-Replicating Risk of Criminal or Administrative Liability
The article is concerned with general issues of compliance programs and their relevance to criminal or administrative liability in German law. The authors begin with a brief review of compliance regulations in Germany and implementation of such programs in practice. Then they explain the relevance of compliance programs for criminal liability in business sphere. The special attention is given to the strange effect of well-elaborated programs which may lead to criminal liability only because of their existence. They call this practice as self-replicating risk of criminal liability due to extra-detailed regulations of permissible and prohibited conduct. The article concludes with review of administrative liability of moral persons for violations related to compliance programs.
Keywords: compliance, criminal liability, administrative liability, corruption, prevention of violations
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G.A. Esakov Compliance and Prevention of Risks of Criminal or Administrative Liability
The article discusses legislative approaches to compliance regimes in Russia with respect to their influence on criminal or administrative liability. Analysis of legislation and case law reveals that compliance programs do not have any significant influence in case of real criminal or administrative violations committed despite the implementation of compliance measures. This is particularly problematic in the field of corporate administrative liability because even the reasonable compliance measures are not treated as defence by courts. The author concludes that such reluctance to view these measures as justification is a serious problem for developing modern compliance systems in Russian economy.
Keywords: compliance, criminal liability, administrative liability, corruption, prevention of violations
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A.A. Dzhagaryan Better and Funnier
The Tradition of May Slogans and the President’s Word to the Troops — Kotlyarevsky contra Zorkin — Vigilant Surveillance of the Past — Educator, Educate Thyself — Europe Does Not Guide Us — Ella Pamfilova and Stalinist Wisdom — Full and Final Legislative Victory over Terrorists and Extremists — The CC in the Fight to Enforce its Decisions — Battle of the Supreme Court Deputy Presidents
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Press Release

 

 

Theory and practice

A.V. Teslenko Long Way to Effective Criminal Legal Protection of Competition in Modern Russia: 30 Years of Reforms
The first legal provisions which criminalise various collusions restricting competition, appeared in Russia in the middle of the XVII century. Over more than three centuries that have passed since that time, the legislators often radically changed its attitude towards anticompetitive collusion — the types of prohibited agreements, the objects of such violations, as well as the sanctions. At the same time, perhaps the most striking period of the rule-making process related to the regulation of criminal liability for agreements restricting competition fell on the last thirty years and continues to this day. In order to comprehend the modern criminal law reality in the field of protection of competition, the author analyses the reasons that prompted the legislator to make appropriate changes to the studied norms, as well as the results of such changes, presenting the history of the evolution of the current wording of Article 178 of the Criminal Code of the Russian Federation.
Keywords: cartel, anti-competitive agreements, agreements restricting competition, restricting competition, article 178 of the Criminal Code, article 154.3 of the Criminal Code of the RSFSR, illegal increase or maintenance of prices
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D.L. Kuznetsov Application of Professional Standards and Independent Qualification Assessment: The Future of the Legal Profession
The article discusses the specifics of building and developing a system of professional qualifications in the legal profession. The author analyses in detail the only current legal professional standard “Criminal Investigator”. The role and powers of the new Professional Qualifications Council in the field of management and law are also analysed. Of particular interest is the special procedure for sending employees for an independent assessment of qualifications.
Keywords: guarantees and compensations, job (labour) duties, qualification, independent assessment of qualification, professional standard, criminal investigator, certificate of qualification, labour function, labour action
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V.A. Alexeev Car-Places: History, Modernity and Prospects
The article reveals the concept of a car-place as an object of real estate, analyses its features in accordance with the current law. The author points out an error in the legislative decision, which is the recognition of a car-place as a real estate object, and suggests other ways to solve problems related to the determination of the legal regime of places for storing vehicles in buildings and premises, and proposes to change the rules on the pre-emptive right to purchase (Article 250 of the Civil Code of the Russian Federation).
Keywords: real estate, car-place, parking space, premises, building, construction, fiction, shared ownership, pre-emptive right to purchase, common property
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M.A. Kolsdorf Free Use of Copyright and Related Rights in Big Data Processing
This article deals with the issues related to the processing of Big data, including objects of copyright and related rights. Main stages of processing Big data using text and data mining technology are disclosed; examples of the application of the results of such processing are given. The author analyses whether objects of copyright and related rights are used in the processing of Big data and whether such actions lead to exclusive rights infringement. Besides, the author examines the cases of free use of works and databases in the European Union and Russia, taking into account the features of the functioning of Big data processing technologies.
Keywords: Big Data, text and data mining, limitations and infringement of an exclusive right, database
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A.G. Levinson The Image of Juries in the Mass Consciousness and Possible Measures to Address This Image
The implementation of the legislator’s idea of Russian citizens participating in jury trials faces great difficulties. The main difficulty lies in the fact that this participation, which is declared by law to be a civic duty, in practice is not perceived as a duty and does not constitute a norm in the public consciousness. The author suggests informing citizens about jury trials through school programmes and the mass media. In addition, it would be appropriate to adjust the process of inviting citizens to participate in jury trials by adding explanatory information and disseminating the printed materials.
Keywords: jurors, jury trial, collegium of jurors, public participation in the administration of justice
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Foreign experience

R.A. Akhobekova The Prospects of Using US Judicial Practice in Solving the Problem Regarding the Subject of Legal Protection of Computer Programs
The article highlights USA court practice in such questions as legal protection of computer programs and lawful use of individual elements of computer programs. The author considers it possible to refer to this experience because, at the moment, neither Russian legislation nor Russian court practice contain rules that would define the scope of legal protection of computer programs (including derivatives). The author concludes that the American judicial practice can be used for the purpose of developing an algorithm that allows identifying the protected and unprotected elements of the program in each specific case. However, the implementation of this proposal may encounter an obstacle in the form of a lack of detailed and applied by the courts doctrinal approaches to the general issues of copyright in Russia.
Keywords: intellectual property, copyright, computer programs, computer programs, subject of legal protection, derivative works, derivative computer programs
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