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ARCHIVE FOR 2021    RUSSIAN

Август 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

 

The Event. Comments of the Experts

The Principle of Registration against Bad Faith between Spouses
Comments by A. Rybalov, K. Sklovskiy, M. Tserkovnikov, A. Latyev, E. Chefranova, O. Fedorova
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Topic of the issue

M.A. Kobanenko Present and Future of the Public Procurement Control
The article is devoted to the analysis of the so-called “optimisation package” of amendments to the Federal Law of 5 April 2013 No. 44‑FZ “On the Contract System in State and Municipal Procurement of Goods, Works and Services”. The amendments adopted in July 2021 are aimed at simplifying, accelerating, unifying the procurement processes for public needs and completing the transfer of public procurement to electronic form. At the same time, the discussion about conceptual approaches to the regulation of the state procurement system continues: should it develop along a rigid and formal path, or provide for greater freedom of the parties to the state contract. Thus, the author proposes specific measures for the further development of procurement legislation aimed at balancing the interests of the parties of the state contract. The article assesses the role of Federal Antimonopoly Service (FAS) in exercising control over the public procurement, analyses the features of protecting the violated rights of the procurement participants when applying to FAS and the court. In addition, the author of the article outlines the main problematic points arising in the exercise of judicial control over the public procurement, highlights the approaches of current judicial practice, including the new “antimonopoly” Plenary Resolution of the Supreme Court of the Russian Federation of 4 March 2021 No. 2.
Keywords: governmental procurement, state contract, “optimisation package”, FAS Russia
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N.S. Pavlova, L.S. Plekhanova Criteria for the Effectiveness of Public Procurement: Unrecorded Effects
Public procurement plays an important role in the national economy and at the same time is a function of the state, requiring appropriate institutional support. The choice of criteria for the effectiveness of procurement has an impact on the assessment of the quality of the relevant system, as well as on the trajectory of the development of the institutional framework for procurement for public needs. Based on the generalisation of the results of economic research, as well as an analysis of the regulations governing public procurement in the Russian Federation, an overview of existing approaches to assessing the effectiveness of procurement used in Russian practice is presented, as well as the main drawbacks and limitations of the most common assessment criteria are identified. Particular attention is paid to the difficulties encountered in assessing the efficiency and effectiveness of procurement in order to implement large, technologically complex projects. The article was written on the basis of the RANEPA state assignment research programme.
Keywords: public procurement, budget procurement, effectiveness criteria for public procurement
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A.E. Kirpichev Public Sector Procurement and the System of Law of Obligations: Terminology and Selection of Applicable Rules
Why is public procurement so different from other legislation on contracts? How can a lawyer from another field understand the meaning of public procurement rules within the traditional framework of contract law? The article begins with a concise but accurate explanation of Russian procurement terminology, as compared with other languages and legal systems. After clarifying the meaning of rules, it deals with the doctrinal framework of interference of general contract law and the public procurement law. It is shown that modern Roman (Southern European and Latin American) legal systems tends to approximate public procurement to the private law of obligations. German legal scholarship proposes the same as a useful and practical approach. The Russian legal system has already embraced a similar attitude. Examples about the contractor’s right to withdraw from a contract show how one can combine rules from the Civil Code and the special rules on public procurement.
Keywords: public procurement, government procurement, ius proprium, public sector entities
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A.A. Sirotkina Change of the State (Municipal) Contract and Freedom of Contract
The article focuses on modifications of state (municipal) contracts including grounds and limits of such modifications. The study of the dynamics of state (municipal) contracts would be incomplete without a systematic view of the permissible changes in contracts, taking into account both the provisions of the Russian Civil Code, basic principles of civil legislation, the Law on Contractual System, and the specifics of the subject matter of certain types of contracts. Particular attention is paid to work and labour contracts since they are most common and most frequently subject to changes sort of public (municipal) contracts. The author has studied the procedure of additional work performance, admissibility of including and changing the contractual term on price with VAT; the influence of the limit of budget funds granted to the customer on changes in the contract terms, as well as antimonopoly risks of changing contracts concluded as a result of tenders, requests for quotations for goods, requests for proposals. Finally, the article deals with the form of an agreement changing the state (municipal) contract and the responsibility for violations of the rules of changing such contract.
Keywords: state contract, municipal contract, amendment of contract, freedom of contract
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V.A. Kondratev Requirements for Participants in Public Procurement
The article examines the system of requirements for participants in public procurement, provided by the legislation on the contract system. The author analyses the requirements for procurement participants, classifies them according to the criterion of the object of verification and assessment, and, as a result, identifies groups of requirements concerning legal status of a person, professional qualities, conscientiousness of the participant and anti-corruption requirements. The article also examines the specifics of the application of individual requirements for the procurement participants, both general and additional, the features of attracting third parties (subcontractors) to execution of the contract, including the possibility of limiting the attraction subcontractors and the establishment of additional requirements for them. Also, the author analyses changes in the legislation of the contract system in terms of establishing additional requirements for procurement participants, raises the question about the possibility of providing the customer with wider freedom in setting requirements for participants, and examines individual requirements and features of their application in domestic practice.
Keywords: public procurement, government customer, procurement participant, requirements for participants, additional requirements, government contract, register of unscrupulous suppliers
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Discussion Board

R.S. Ibragimov, He.D. Suragina, D.Yu. Churilova Ethics and AI Regulation
The article is devoted to the study of diverse ethical problems in the scope of development and deployment of the artificial intelligence as part of its growing importance and influence on different spheres of individuals’ lives and on society, especially on the moral sphere. Considering ethics as a product of the human and society evolution, the authors assume that at the current level of technological development ethics in common with law and standardisation has a high potential for regulating public relations in the sphere of artificial intelligence. The authors propose a comprehensive regulatory framework for artificial intelligence, which is based on the wide range of regulatory tools in conjunction with a diversified approach to certain ethical problems. This approach would help to enhance trust to artificial intelligence systems and to create the regulatory flexibility facilitating innovation and scientific achievements.
Keywords: ethics, artificial intelligence, legal regulation, artificial intelligence system, developer, professional community, self-regulation, standardisation, code of ethics
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M.L. Galperin Why Will the Middle Ages Ensue from the Digital Age of Legal Education?
The article analyses the recent trends in the development of legal education, makes the attempt to assess them in the future perspective. Using the historical background, taking into account modern challenges author comes to the conclusion that legal education is going to become more and more differentiated and could hardly be put into the unified quality standard. In the age of information technologies and global competition the values and aims of the legal education should stay unchanged. It gives the chance to legal education to be demanded in the future.
Keywords: legal education, legal career, teaching law
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K.A. Sasov What Should Be a General Rule on Tax Abuse
Given the negative expert assessments of Article 54.1 of the Tax Code and unsuccessful attempts of the Ministry of Finance and the Federal Tax Service in its interpretation, the author proposes his own version of the general rule against tax abuse of taxpayers.
Keywords: tax abuse, abuse of taxpayer rights, aggressive tax planning, tax liability
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A.P. Evseev The Eighth Month
The fall of Kabul — Article by Ivan Safronov in Vedomosti — Judgment of the European Court of Human Rights in the case of Gumenyuk and Others v. Ukraine — Ruling of the Russian Constitutional Court on the complaint of citizen E.V. Mokeev — Control and supervision reform
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Theory and practice

L.A. Novoselova Disposal of Human Body: Civil Law Aspect
The author makes an attempt to determine the legal regime of human body (its organs and tissues) during one’s life. Theoretical views about the possibility of considering the human body, its organs and tissues after their separation from the body as an object of property (real) rights, as well as personal non-property rights are analysed. Qualification of the body and the organs not separated from it during one’s life as an object of property rights belonging, among others, to the person himself is stated impossible. The human body as a single object is a personal non-property good, while its organs and tissues may be considered as objects of property rights provided that they are separated from the body and the person has expressed the will determining such a possibility with regard to his body. Finally, the peculiarities of the legal regime of the separated human organs and tissues as things restricted in turnover and the influence of the regime of protection of personal non-property rights on it are considered.
Keywords: human body, thing, bequest, title to the body, personal nonproperty rights
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D.B. Volodarskiy, I.N. Kashkarova On the Issue of the Estoppel Doctrine Implementation: Procedural Aspects (Part 2)
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. It is postulated that the wide application of estoppel against the late presentation of procedural materials discovers, that the normative framework of the Russian Law of Civil Procedure does not sufficiently provide the principle of procedural concentration (the general idea about the duty of the parties to present all means of attack and defense on the early stages of litigation). Based on the comparative analysis (USA, Germany) the authors state that this problem might be cured by the more vigorous implementation of the stage-preclusion principle in the Russian Law of Civil Procedure.
Keywords: procedural estoppel, stage-preclusion principle, concentration of procedural materials
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A.V. Basharin On the Possibility of Changing Urban Planning Documentation Based on Agreements between Public Law Entities and Private Individuals. Prospects for Conditional and Contract Zoning in Russian Law
The article is focused on the problem of agreements that application urban planning documentation and are concluded between individuals and public entities. The comparative part of the article presents the American experience of land use, which provides the necessary flexibility in regulating urban development due to the institutions of conditional and contractual zoning. According to the author, the Russian institute of deferred urban development protocols resembles the institute of conditional zoning and provides for the types of permitted use of land plots which can be carried out only after the expiration of a certain period or when certain conditions occur. The existing legal uncertainty regarding the regulation of agreements in the field of urban development between private individuals and public entities prevents the adoption of the institution of contract zoning in Russian law. Finally, it is concluded that only the systematic application of various institutions of urban planning legislation will create transparent conditions for private entities, will provide an opportunity for the development of the urban environment.
Keywords: conditional zoning, contract zoning, redevelopment, land use and development rules, special permits, variances
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