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