ARCHIVE FOR 2021 RUSSIAN
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Июнь 2021
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
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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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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