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ARCHIVE FOR 2021    RUSSIAN

Ноябрь 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Tortures in Prisons: Ways to Reform the Penitentiary System in Russia
Comments by Ya. Gilinskiy, V. Klyuvgant, O. Podoplelova, L. Golovko
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Topic of the issue

N.G. Narysheva Land Plot as an Object of Land Legal Relations
The article examines the concept of land relations, identifies the distinctive features of land relations as a subject of legal regulation. The correlation between the concepts of ‘land’ and ‘land plot‘ is analysed. The scientific positions on the concept of a land plot are considered. The legally significant features of a land plot have been determined for the purpose of improving land legislation in terms of the legal definition of a land plot. The concept of the legal regime of a land plot has been defined. A land plot should be defined as a part of land (natural resource and natural object) in respect of which a legal regime has been established and information about which is entered in the Unified State Register of Real Estate. The legal regime of a land plot is determined at least on the basis of belonging of land plot to the category of land and the permitted use. In cases established by law, the legal regime is additionally determined by the belonging of a land plot to certain types of land, various types of zones and territories, the establishment of which is not directly related to the achievement of the legal goals of legal regulation of land relations, but entails complicating the legal regime of land plot with additional elements.
Keywords: land, land plot, land legal relations
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O.A. Zharkova Mebius Ribbon of the Russian Legislation
The article analyses the land plot as an object of relations regulated by land, civil, and town-planning legislation. Having concluded that in various branches the concept of ‘land plot’ has different meanings, the author states that the interpretation of this concept has been transformed in the land legislation, and analyses situations when the formation of a land plot is required for land use and when the land plot is not formed. Land use without formation of a land plot is possible when obtaining a permit for use (Chapter V.6 of the Land Code of the RF) and under a public easement. Accordingly, in these cases the provision of a layout plan of the land plot or an area planning project is also not required. Finally, the article compares the concepts of ‘limitation of ownership rights’ and ‘limitation of rights of the land plot owner’.
Keywords: formation of a land plot, borders of a land plot, project of land surveying, scheme of location of a land plot, surveyed/unmarked land plots, public easement, restrictions in use of a land plot
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L.E. Bandorin, A.V. Basharin On the Provision of Land Plots for the Complex Development of the Territory at the Initiative of Rightholders
The authors investigate the problems of granting land plots in the implementation of one of the types of complex territorial development that exist in Russian law — complex development on the initiative of rightholders of land plots and (or) real estate objects. On the example of the analysis of existing restrictions on granting of land plots, requirements which the granted land plots must meet, the authors come to conclusion about necessity of the further improvement of the legislation on complex development of territory. The article also demonstrates that the legislative recognition of the relationship between different contracts in the implementation of complex development of the territory itself creates additional risks for individuals. In the last part of the article the main conclusions are made, a number of proposals for possible improvement of the current legislation are given.
Keywords: complex development of territory, element of the planning structure, land plot, infrastructure, development agreements
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I.N. Kharinov Disputable Issues of (Un)Application of the Forest Amnesty Law
Having analysed the rules of the Forest Amnesty Law, the author considers extrajudicial mechanisms for eliminating the contradictions between two public registers, and on the basis of the analysis of current judicial arbitrazh (commercial) practice, he concludes that law enforcement officers sometimes unfairly refrain from applying the key provisions of the said Law. In particular, the main legal positions that have been developed in practice and deviate from the purpose of the Forest Amnesty Law are: an increased standard of proof of the good faith of the acquisition of land plots, and the need to study the circumstances of the formation of forest plots. The author critically evaluates situations when regional executive authorities, which in this regard are improper plaintiffs, turn to court to protect the interests of the Russian Federation. The very possibility of discretion in forest amnesty cases of the dispute over the right and purpose of forensic examination in this regard are doubtful. It is concluded that the most effective means of judicial protection of individuals in the analysed category of cases is a claim to invalidate information in the State Forest Register, combined with a requirement to compel the authorised body to correct such information.
Keywords: forest amnesty, forest plot, land plot, forest land, bona fide acquirer, dispute over the right, forensic examination, proper remedy
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Discussion Board

N.A. Dmitrik States in Their Right
The author analyses current problems of exercising state sovereignty in cyber era with multiple legal systems. State sovereignty is scrutinised in relation with the problems of legal certainty, choice of law and the problems of extraterritorial application of law. The article considers the operation of law at the micro level, that is, in specific legal relations in which there is a possibility of choosing a legal system. The analysis performed in this article is to be continued in further article on the law of transnational enterprises.
Keywords: sovereignty, choice of law, extraterritorial application of laws, localisation, balkanisation, legal certainty
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D.V. Kaysin, A.A. Komogorov Problems of Applying the Civil Law Standard of Abuse of Rights to Arbitrazh (Commercial) Procedural Relations
The article addresses the matter whether it is justified to apply Article 10 of the Russian Civil Code to arbitrazh (commercial) procedural relations. The authors opine that such practice of arbitrazh courts is inadmissible. Firstly, it does not comply with the system of the current legal regulation. Secondly, it is at odds with the nature of adversarial litigation. The application of sanctions set out in Article 10 of the Russian Civil Code causes significant harm to rights and legitimate interests of a litigator because such sanctions are more severe than those set out in the Arbitrazh Procedure Code and they are disproportionate to the consequences of the abuse of procedural rights.
Keywords: abuse of rights, substantive and procedural legal relations, principle of adversarial proceedings, legal costs
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I.K. Shmarko You Can’t Execute and Grant a Pardon Too
Drunk driving — Inexpensive dangerous driving — Pre-election promises, or Be slow to promise and quick to perform — Who is more important in a company: a manager or a clerk? — Administrative assistance to small businesses — Court in place of a shareholder — ‘Small’ citizens — An appraiser will check everything — Ethical AI — Digital nomads
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Theory and practice

P.D. Blokhin Economic Analysis in Public Law: From Theory to Practice
In the present paper, the author develops and clarifies some of the approaches expressed in a previously published article entitled “Is there room for Economic Analysis in the Theory and Practice of Constitutional Adjudication?” (Statute. 2020. No. 12). In particular, the author proceeds from the assumption that, in contrast to issues of criminal law policy, an appeal to Law and Economics in such areas as land, tax, antitrust law is justified and even necessary. In support of this hypothesis, the author analyses in detail three cases considered by the Russian Constitutional Court: determination of the price of a plot depending on its condition in eminent domain cases; investigating the tactics of price disorientation in the course of the electronic auction; taxation of property in the case of shopping and business centers.
Keywords: economic analysis of law, rational choice theory, behavioral economics, eminent domain, cartel agreement during the bidding, taxation of property at cadastral value
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N.Yu. Rasskazova Acquisition of Residential Premises Using Maternity (Family) Capital
The article deals with the problems that arise in practice when residential premises are acquired using the funds of maternal (family) capital. The author criticises the possibility of compulsory vesting of the ownership of such residential premises, and proves that in this case, firstly, the right to receive a share in the ownership must be public, and, secondly, the construction of real subrogation should be used.
Keywords: maternal (family) capital, acquisition of ownership, share in ownership of a dwelling, rights of minors
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M.V. Kamenkov Problems in Court Practice of Establishing De facto Affiliation
The law does not directly enable courts to recognise persons as affiliated in cases not mentioned in the legal regulations. The RF Supreme Court stated that courts may recognise persons as affiliated even if there are no signs of legal dependence in their relations, but their behaviour makes it possible to conclude on interconnectedness of actions and unity of purposes, revealing the so-called de facto affiliation. The author analyses various situations in which the courts have discovered de facto affiliation in order to identify the criteria of affiliation used in practice. The research revealed that courts do not analyse qualitative characteristics of such affiliation and, contrary to the legal notion of affiliated persons, do not establish whether one person had an opportunity to influence other person’s decision-making. Courts tend to define de facto affiliation as a situation where, given the circumstances of a particular case, the actions of formally independent persons are synchronised or have a common purpose. Under this approach, any persons may be recognised as affiliated if they joined together situationally to solve a particular problem.
Keywords: affiliated persons, group of persons, affiliation, unity of economic interests, de facto control
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S.G. Konovalov The Use of Cell Phone Data in Criminal Proceedings: Urgent Legal Issues and Prospects
The article examines four key issues that arise due to the fact that information extracted from cell phones is increasingly used in criminal proof. What investigative action does its extraction correspond to? Will each collected file be a standalone type of evidence, or is it just a trace on a mobile device? Should access to smartphone data be approved by a court? Is there any information that is fundamentally unacceptable to use? In formulating the answers, the author takes into account the experience of Germany and the United States representing different models of criminal procedure.
Keywords: cell phone, smartphone, digital evidence, warrant
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A.A. Glushetskiy Complex Reorganisation: A Useful Innovation That Does not Correspond to the Nature of a Legal Entity
On the example of a company’s reorganisation in the form of spin-off with simultaneous merger, the author considers complex forms of reorganisation which are a new phenomenon for domestic corporate practice and represent a symbiosis of several classical forms of reorganisation of a legal entity: spin-off with accession or merger, separation with accession or merger. They are in demand in practice, since they simplify the structuring of assets and liabilities of legal entities, allow combining partial and universal succession in one process, and provide succession between existing legal entities without their termination and the creation of new ones. However, certain elements of these forms do not correspond well to the nature of a legal entity and its reorganisation: these are a ‘transit’ legal entity, its phantom securities that do not appear in circulation, a phantom succession of a ‘transit’ legal entity, etc. An analysis of these phenomena is given and suggestions for their possible elimination are made.
Keywords: reorganisation, forms of complex reorganisation, intermediate legal entity, phantom securities, spin-off with simultaneous merger, succession
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A.N. Vereshchagin Judicial Law-Making of the Ruling Senate in the Area of ‘Peasant Law’
Neither area of law was so much influenced by judicial activism as the ‘peasant law’, i.e. the aggregate of provisions related to land, inheritance et al., which regulated life of the most numerous class in the Empire. The article shows in detail how the Russian Senate created and modified the institution of peasant household which was central for this area of law, and attempts to explain the motives behind this activism. Since 1917 it is the first time such analysis is made.
Keywords: Ruling Senate, judicial law-making, peasant law, peasant (or farmer) household
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Foreign experience

A.А. Markelova, A.V. Karachun Regulatory Takings in Russia and Foreign Countries (Part 1)
The article is divided into two parts and devoted to the doctrine of “regulatory takings”. This doctrine justifies the possibility of extending the constitutional principle of sanctity of property rights not only to cases of forced termination of property rights in the public interests, but also to cases of significant restriction of property rights by changing legal regulation in the public interests (land law, urban planning, environmental law, other public restrictions). The first part of the article examines foreign experience using the example of the United States and Germany. The second part will show how this doctrine applies and can be applied in Russia.
Keywords: regulatory takings, principle of inviolability of property rights, expropriation, compensation, public restrictions
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A.I. Dorokhov Pre-development Agreements as a Form of Early Involvement of the Private Investors in Foreign PPP Projects. The Main Characteristics and Potential Advantages for the Russian PPP Market
The article deals with the introduction and development in foreign practice of pre-development agreements (PDA) as a form of early investors’ participation in public-private partnership (PPP) projects, the basic prerequisites for the conclusion and conditions of implementation of such agreements. Special attention is paid to the comparison with the regulation of unsolicited proposals in the Russian legislation in order to identify the potential advantages of PDA for the Russian PPP market.
Keywords: pre-development agreements, concession agreement, publicprivate partnership, unsolicited proposals
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