ARCHIVE FOR 2021 RUSSIAN
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Июль 2021
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
L.V. Golovko The Institution of “Overall” Cassation in Criminal Proceedings: A Positive Innovation or Another Deformation? The emergence of so-called “overall” cassation in Russian criminal
procedure is one of the key procedural innovations accompanying
the creation of appellate and cassation courts of general jurisdiction
in Russia. However, this innovation does not take into account
some classical procedural axioms, which immediately led to serious
technical problems. The legislator tried to solve these problems at
least partly by Federal Law No. 15-FZ of 24 February 2021 but it is
not certain that he chose the right strategy for realising the freedom
of appeal in cassation review of criminal sentences, which would
also takes into account the historical and comparative differences in
approach between criminal and civil law proceedings. What should
this strategy be?
Keywords:
criminal procedure, “overall” cassation, entry of judgment into legal force, freedom of appeal, term of cassation appeal
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E.V. Kudryavtseva The Right to Appeal in Russian Civil Proceedings — Unconditional or With Barriers? The article analyses the right to appeal, granted primarily to persons
participating in the case, and examines whether this right can be considered unconditional or has certain barriers. Whether this is
correct in relation to the higher courts, taking into account the goals
and objectives that they facе? How did the reform of the civil
procedure legislation in 2018 affect appeals against court decisions?
Keywords:
appeal, cassation appeal, supervisory proceedings, petition, right to appeal
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V.M. Zhuikov Nadzor Proceedings in Civil Process The article analyses in historical and theoretical aspects of the socalled
nadzor proceedings — from its creation in Soviet times to
the present time. The reformatory changes of these proceedings and
the problems that arose with them are investigated. The conclusion
is made that it needs to be substantially changed.
Keywords:
nadzor, exceptionality of proceedings, unity of judicial practice and legality
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I.V. Reshetnikova The Right to a Competent Court: Formation of the Composition of the Court, Jurisdiction of the Case The right to a competent court is interrelated with the issues of
jurisdiction as well as with the grounds for cancellation of judicial acts
in the appeal and cassation procedure. The article shows the history
of this issue at the level of judicial acts of the Constitutional Court,
the Supreme Arbitrazh Court and the Supreme Court of the Russian
Federation, as well as the modern law enforcement approach,
including the competition between different kinds of jurisdiction.
The issues of the formation of the judicial composition for
the consideration of the case, as well as the replacement of the judge
and the interchangeability of judges were discussed. An attempt is
made to analyse the difference between preclusion and estoppel
through the prism of jurisdiction.
Keywords:
jurisdiction, replacement of a judge, interchangeability of judges, estoppel, precluse, grounds for cancellation of the judicial act, competition of types of jurisdiction
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A.V. Ilyin Violation of the Principles of Equality and Competition as a Basis for the Cancellation of Judicial Acts of Arbitrarion Courts on Appeal The article examines the question of whether such violations of
the rules of procedural law by the arbitrazh courts of the first and
appellate instance, which together can be designated as a violation
of the principles of adversariality and equality of the parties (an
illegal ban on a party to provide evidence, an illegal refusal to assist
in reclaiming evidence that is missing from a party failure to provide
a party with the opportunity to familiarise itself with the evidence of
the other party in a timely manner, acceptance of evidence in violation
of the law, while prohibiting the other party to provide evidence to
the contrary), may serve as grounds for reversal of judicial acts in
the arbitrazh cassation court. The analysis is carried out on the basis
of comparing the limits of the consideration of the case, the powers
of the court, as well as the grounds for reversing or changing judicial
acts in cassation. A special attention is given to the classic problem
of cassation proceedings: the review by the cassation court of
the discrepancy between the conclusions contained in the contested judicial acts and the factual findings or the evidence available in
the case at hand.
Keywords:
cassation proceedings, the scope of consideration of the case in the cassation instance, the powers of the arbitration court of the cassation instance, proof, the principle of equality, the principle of adversariality
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Discussion Board
S.V. Musarskii On the Falsity of Classifying One’s Exercise of His Subjective Rights in Contradiction with Their Purpose (Goal) as an Abuse of Right Determination of the legal essence of the abuse of the right
prohibited by Art. 10 of the Civil Code is perhaps the most difficult
and controversial issue of civil law. One opinion on the issue, quite
widespread in judicial practice, runs as follows: this phenomenon
means the exercise of subjective right in contradiction with its
purpose (goal). This idea, which came to us from the French legal
doctrine, received official recognition with the adoption in 1922
of the first Soviet Civil Code and throughout the history of Soviet
civil law was the main explanation of the essence of the abuse
of the right. These deeply rooted traditions of Soviet law can
explain the fact that despite the radical change in the legal order
and legislation in Russia after 1991, this point of view continues
to be the main explanation for the problem of abuse of the right
for many Russian lawyers. Meanwhile, it does not correspond
to the basic principles of private civil law and current legislative
regulation.
Keywords:
abuse of the right, Josserand, Dugi, Article 10 of the Civil Code, judicial discretion, assignment of subjective rights
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Press Release
Theory and practice
D.B. Volodarskiy, I.N. Kashkarova On the Issue of the Estoppel Doctrine Implementation: Procedural Aspects (Part 1) This article is one in the set of publications about the different types of
procedural estoppels used in the Russian judicial practice. The main
goal was the estimation of the positive potential, which the doctrine of
estoppel might have for the development of the Russian Law of Civil
Procedure. In the present research two subjects were scrutinised:
the correlation between procedural estoppels and the principle of
good-faith and the use of estoppel instruments against the late
presentation of procedural materials before the court. In the first part
of the article authors draw a conclusion that procedural estoppel, taken as a whole, should be deemed as an instrument, by which
the corrective function of the good-faith principle operates. This
instrument helps to soften the strict operation of the procedural law,
where it contradicts the aim to organize the execution of justice in
the rational and most effective way.
Keywords:
formalism, good-faith in civil procedure, procedural estoppel
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A.P. Sergeev The Principle of Seniority When Confusingly Similar Means of Individualisation Belong to Different Persons The article analyses the principle of seniority enshrined in para. 6
of Art. 1252 of the Russian Civil Code, which allows to resolve
conflicts in case of collision between the means of individualisation
which are identical or similar to the extent of confusion. The author
draws attention to the problems connected with its application and
makes suggestions for the improvement of the current legislation.
In particular, he examines such problems as the statute of limitations
for the protection of rights to means of individualisation, as well as the
existence of consent to the use of a junior means of individualisation.
Keywords:
seniority principle, means of individualisation, statute of limitations, consent to registration (use)
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A.V. Basharin On the Possibility of Regarding the Costs Incurred for Compensatory Landscaping as Replacement Cost This article considers the permissibility of accounting for costs spent
on compensatory landscaping when paying the replacement cost for
the destruction of such green spaces. The author concludes that it is
necessary to extend the norms of environmental legislation to cases
of protection and reproduction of green spaces growing on the lands
of settlements. The author notes the existing shortcomings of their
qualifications as forms of compensation for environmental damage.
In conclusion, the article gives a number of proposals to improve
the current legislation.
Keywords:
green spaces, replacement cost, compensatory landscaping, cutting license
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Zh.G. Popkova One-Time Tax on Privatisation Results: Prospects for Introduction in Russia The paper analyses publicly available information on one-off
wealth taxes on the results of “unfair privatisation” (English
windfall tax, Serbian “tax on easy profits”, etc.) in order to
determine the possible prospects for the introduction of such
taxation in Russia in the context of another financial crisis, COVID
19 pandemic and falling oil prices. It is concluded that no such
tax is likely to be introduced in Russia in the near future, although
this does not mean that there will not be attempts to introduce
its counterparts on individuals who are in no way connected
with the results of privatisation. The author singles out several
essential factors which prevent the introduction of a one-off tax
on the results of privatisation: (1) as a rule, in foreign jurisdictions
the new authorities would impose this tax on those who, in their
opinion, received unfair advantages under the previous authorities;
(2) the presence or absence of any new tax on business does not
increase the respect of the Russian common people for business
or legitimise the property that is owned by business in any way;
(3) the introduction of a compensation tax would substantially
violate a number of provisions of the Russian Constitution.
Keywords:
tax, windfall tax, retroactivity, justice, compensation, privatisation, actual turnover of power, tax elements, tax policy
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Foreign experience
A.G. Kotelnikov Appeal Mechanisms in Common Law Countries (the Examples of England and the British Virgin Islands) This article undertakes a comparative analysis of appeal
mechanisms, grounds for review and the powers of an appeal
court in England and the British Virgin Islands. The author
examines the approach in these jurisdictions whereby the main
criterion of competence to hear an appeal is the hierarchy of
judges and not of the courts. Considering the appeal mechanisms
in civil and administrative cases, the article notes a tendency
towards an emergence of new hybrid forms of appeal against
the decisions of courts and tribunals, as well as a gradual
decrease in the opportunities to appeal afforded to the parties.
Keywords:
appeal, judicial review, England, British Virgin Islands, judicial system, tribunals
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