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ARCHIVE FOR 2021    RUSSIAN

Июнь 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

 

The Event. Comments of the Experts

ENLIGHTENMENT: IS IT NECESSARY TO REGULATE?
Comments by L. Glebova, I. Shablinsky, M. Povalyaev, S. Makovetskaya, N. Rasskazova, R. Bevzenko
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Topic of the issue

A.E. Mitko (Hegumen Serapion) PARADOXES OF EQUALITY OF RELIGIOUS ASSOCIATIONS
The article is devoted to the problem of implementation of the constitutional principle of equality of religious associations before the law in the federal legislation on freedom of conscience and religious associations. This problem is considered through the prism of an innovative concept — the paradox of equality. Consistent implementation of the constitutional principle of equality of religious associations is expressed in the adoption of general legislative norms that uniformly regulate the activities of religious associations, which should ensure their real equality. However, in the everyday legal consciousness, historically associated with the Soviet past, legal equality is replaced by the idea of de facto equality as an ideal that should be embodied in lawmaking. This is facilitated by the high degree of legal ambiguity of such constitutional terms as religion, secularism, secession, and equality. The understanding of religion laid down in the Constitution is based on its general characteristics, without taking into account the differences of specific religions. At the same time, the differences between specific religions determine the basic situation of their actual inequality. Therefore, the adoption of general and uniform legislative norms and their application puts different religions in a position of de facto inequality. This is the paradox of the equality of religious associations.
Keywords: religion, constitutional law, constitutional principles, legal uncertainty, secularism of the state, separation of religious associations from the state, equality of religious associations, freedom of conscience
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V.A. Tomsinov, V.G. Domshenko TRANSFER OF STATE PROPERTY TO THE RUSSIAN ORTHODOX CHURCH: PROBLEMS OF INTERPRETATION OF LAWS AND ANALYSIS OF JUDICIAL PRACTICE
The article is devoted to the legal problems, arising from the transfer of state and municipal property for religious purposes to the Russian Orthodox Church. It shows that the legal nature of this phenomenon is still uncertain. It is neither restitution nor privatisation. Legal acts issued to regulate this procedure refer to it by the general term “transfer”, without specifying on what basis it should be made. A review of judicial practice in the application of Federal Law No. 327-FZ “On the transfer to Religious Organisations of State or Municipal Property for religious purposes” shows that the meaning of its key terms is interpreted very arbitrarily. The term “property for religious purposes” used in it is given too broad a meaning, and the term “monastic life” is often confused with the concept of “monastic activity”. The article offers a method of interpretation of these terms, which involves the analysis of the content of not only the laws of the Russian Federation, but also the current regulations of the Russian Orthodox Church and the Orthodox Christian tradition.
Keywords: transfer of state property to the Russian Orthodox Church, property for religious purposes, monastic vital activity
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D.L. Kuznetsov LABOR OF EMPLOYEES OF RELIGIOUS ORGANISATIONS: LEGAL MECHANISMS OF DIFFERENTIATION
The article considers the legal mechanisms of differentiation of labor of workers of religious organisations, analyses the role and importance of internal regulations of religious organisations in the system of sources of labor law. The author focuses on the conclusion, amendment and termination of employment contracts with employees of religious organisations.
Keywords: religious organisation, employee of religious organisation, internal regulations of religious organisation, labor contract with employee
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A.A. Vishnevskiy CANON LAW REFORMS DURING THE PONTIFICATE OF FRANCISCUS THE POPE: EPOCHAL CHANGES IN THE EPOCH OF CHANGES
The article provides a brief historical and analytical review of the recent changes in Canon Law during the Pope Franciscus pontificate, considering first of all the most important changes in canon law of marriage and canon law of sanctions in the Church.
Keywords: canon law, canon law reforms canon law of marriage, canon law of sanctions, history of canon law, Pope Franciscus pontificate
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I. Tenberga, A.D. Rudokvas, D.Ya. Primakov LEGAL FOUNDATION OF ISLAMIC BANKING
In the first part of the article, the authors examine the legal sources of Islamic banking, they also point out its connection with the religious and ethical foundations of Islam. The second part of the article is dedicated to the institutional analysis of Islamic banking. From lens of arbitration decisions the controversial nature of Sharia councils in banks and the multiplicity of approaches to the essence of Islamic banks in different regions of the Islam world are highlighted. In the third part, the authors demonstrate legal difficulties of the implementation of Islamic banking in Egypt.
Keywords: Islamic banking, Islamic bank, Sharia, Quran, Sunna, Fiqh, Shari’a Supervisory Board, Egypt, sustainable banking
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Discussion Board

N.A. Bobrinsky MOSCOW’S PUNITIVE INNOVATION: INTERMEDIATE RESUULTS
The article offers a review of the use of electronic surveillance of citizens for the purpose of fixing offences of anti-epidemic rules. Last year in Moscow a simplified procedure for administrative offence cases was introduced for this purpose — similar to the procedure for fixing traffic offences by means of traffic cameras. The author raises the question of whether it is possible in principle to use facial recognition and geolocation system readings as the only evidence in an administrative offence case when considering it without drawing up a protocol. Is the error of automatic identification without human involvement compatible with the principle of interpreting irremovable doubts of guilt in favour of the accused? Despite the partial winding down of anti-virus “punitive innovation” in the capital, the experience of electronic monitoring tools remains relevant in connection to the planned reform of the legislation on administrative offences.
Keywords: administrative responsibility, cases of administrative offences, simplified procedure for consideration of cases, electronic monitoring
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I.A. Grebenkina REFORM OF LIMITED PROPERTY RIGHTS IN THE RUSSIAN FEDERATION: PROBLEMS AND PROSPECTS
The author of this study sets himself the task of identifying and systematizing some of the problems of limited property rights that exist in civil circulation when using both the structures of limited property rights enshrined in the Civil Code of the Russian Federation, mainly for real estate, based on an analysis of doctrine, legislation and current judicial practice, and the problems of relations that need to be legally formalised with new constructions of limited property rights inherent in developed foreign legal orders. The article reveals the problems of implementation and protection of the right of pre-emptive purchase of someone else’s property; identified “defects” in the lease of a land plot for the purpose of construction and the advantages of legalisation a new property development right, with the exception of cases of construction of apartment buildings; the practical relevance of the right to issue in rem has been proved. Based on the results of the study, the priority directions of the development of domestic civil legislation on the system of limited property rights were identified and recommendations were formulated for its improvement.
Keywords: limited property rights; reform of property rights; building right; preemptive right to purchase someone else’s real estate; the right of issue in rem
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O.P. Pleshanova COLD SUMMER OF 2021
Mandatory vaccination — Bankruptcy reform — Subsidiary liability in bankruptcy cases — Economic Forum and inflation — Oligarchs — Fighting the opposition — Citizens’ debts — Summer vacation — Scooters and autopilots — Daily bread
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Press Release

 

Theory and practice

G.A. Gadzhiev, E.A. Voinikanis PACING PROBLEM AND THE REVIVAL OF JUDICIAL RULEMAKING
The article is devoted to the problem of adaptation of law to the rate of technological change and related economic and social transformations. The unpredictability of the consequences of the large scale implementation of new technologies makes one think about the type of rationality underlying the decision making, technological determinism and the reconstruction of technologies as a subject of legal regulation. The increasing complexity of legislation, although it is a natural reaction to the structural complexity of social and economic relations, carries the risk of legal uncertainty and legal dogmatism. The authors observe that case law has not received much attention in the ongoing debate on the challenges brought by the digital economy. An analysis of the pacing problem revealed the importance and inevitability of expanding judicial discretion. Judicial discretion is not an easy burden, it requires overcoming formalism and skillful application of the balancing tools in order to ensure fairness and adjust the future development of legislation.
Keywords: pacing problem, technologies, formalism, flexible regulation, judicial discretion
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K.A. Novikov A NOTE ON GENERAL PLEDGE
This article discusses a method, new to Russian legislation, that allows to define in the conditions of a pledge deed that the deed includes all of the present and future property of the debtor. Since the ancient Rome, this method of identification of pledged property has been known in civil law under the Roman name of general pledge. The author describes the general idea and the conditions of using this legal structure, indicates its essential characteristics, and concludes that presently the capacity of the general pledge cannot be realised for the category of property benefits that is most suitable for it (real estate).
Keywords: pledge; mortgage; pledge of the entire property; general pledge; general mortgage; pledge of all the present and future property; hypotheca omnium bonorum; praesentum et futurum; conventio generalis in pignore dandum; obligatione generali rerum
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R.R. Repin THE ACTION OF THE INSTITUTION OF ACQUISITIVE PRESCRIPTION IN RELATION TO OWNERLESS THINGS
The problematic issues of the action of the institution of acquisitive prescription in relation to ownerless things are investigated. The concept of an ownerless thing under Russian law is defined, the applicability of this construction to real estate is analysed. Particular attention is paid to the requisites of limitation, which were formulated by judicial practice by the Constitutional Court, in relation to informal acquisition of real estate and informal waiver of rights to it.
Keywords: acquisitive prescription, ownerless thing, property right, property right, possession, visibility of right, good faith
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