Журнал ЗАКОН

Comments by M. Filatova, D. Gryaznova, M. Davtyan, E. Kuznetsova

The article examines the main provisions of the Conception of Improvement of Legislation on Child-Parent Relationship, which is being worked on by S.S. Alekseev Presidential Research Center of Private Law.

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Keywords: rights of the child in the family, child’s best interests, parental rights and responsibilities

The purpose of this publication is to highlight the impact of the death of a spouse on the default matrimonial property regime. The presentation of the rules as they are interpreted in practice is accompanied by an attempt to assess how efficient the regulation remains.

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Keywords: spousal inheritance rights, matrimonial property, inheritance

In this article, the author, taking into account (i) the legal nature of alimony relations, (ii) provisions and (iii) goals of regulating these relations, analyses the state and the dynamics of the recent development of legislation in this area. It was concluded that the amendments made to the legislation violated the balance of interests of the parties to the alimony relationship towards the alimony payer. The article also identifies the main directions of improving the legislation on alimony obligations, the movement in accordance with which will allow to achieve the expected goals of legal regulation.

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Keywords: alimony obligations of parents and children; balance of interests of participants in alimony relations; directions of development of legislation on alimony obligations

Having analysed current regulation of property relations with participation of minors, the author attempts to identify how the legislation might be improved to implement a comprehensive and coordinated approach, eliminate inconsistencies and misalignment in the regulation of similar relations in the acts of different legal branches. It is proposed to direct efforts towards overcoming the existing differences in the concepts and terminology used. It is highly needed to develop a coherent and effective system for protecting the property rights of minors in order to implement the principle of giving priority to their rights and legitimate interests. Proposals are made to enhance certain provisions of the law.

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Keywords: right of child to decent life, property rights of minors, property management of minors, trust management of child property, bank deposit, bank account parents, legal representative income

The article analyses the problems that arise due to the lack of specific rules on national or international child relocation in Russian legislation. The author considers the approaches taken by different legal systems to contested requests by parents to relocate with their children as well as the documents developed in recent years for international harmonisation in this area. The article contains suggestions for improvement of Russian legislation.

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Keywords: child relocation, parental responsibility, child’s best interests

The article analyses the legal aspects of the phenomenon of “social parenthood”, that is when there is no genetic links between a child and his or her parent or person who is the de facto parent. Taking into account the most recent ECHR cases, the author has attempted to formulate the main issues that need to be discussed in order to ensure proper protection of the rights and interests of children.

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Keywords: social parenthood, child’s best interests, the right to respect for family life

The author analyses res judicata in criminal procedure in view of recent discussion on it. For the last years, res judicata in criminal cases was reviewed by both the legislator and the courts. However, the issue is still unclear in criminal practice. To clarify it, the author proposes to review res judicata from the substantive criminal law viewpoint that is to determine elements of crime which might be proved with res judicata. As a result of such study, the list of such elements is quite limited. The most problematic question is concerned with element of non-criminal (that is tax, civil, etc.) illegality — how should criminal court use decisions of other, non-criminal, courts on such issues? The author proposes the concrete rules of resolving the possible conflict between criminal and non-criminal decisions.

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Keywords: res judicata, non-criminal illegality, civil procedure, blanket provisions of criminal law, corpus delicti

December 2021 was full of legal developments. About 100 normative acts were adopted and the procedural, criminal and civil codes were amended. It will probably take more than a year to comprehend all the changes. A month or two of the legislator’s creativity provides senior courts with years of explanatory work. However, not all legislative proposals have been adopted: for example, the sensational bill on the application of QR-codes has been withdrawn. Courts have also made decisions that have stirred up the legal community. Legal Chronicle discovers these key events of December.

This publication is devoted to a detailed analysis of the first fragment of the ‘Glossa’ — the multivolume profound commentary on the Civil Code, provided by a group of authors, edited by A.G. Karapetov (M-Logos). Here Article 1 of the Civil Code is commented using the method of post-glossators who prepared remarks to glosses already made by other authors. This genre of legal literature has been rare in recent times, but it perfectly suits the format of the ‘Glossa’, which is written primarily for academic rather than scientific purposes. However, the views expressed in it also need criticism, and this is the express purpose of the author.

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Keywords: #Glossa, commentary on the Civil Code, Article 1 of the Civil Code, principles of civil law

The service contract with take-or-pay clause, like other take-orpay contracts, does not have any special features for termination. Therefore, this clause does not affect the general customer’s right to unilaterally withdraw from the contract. This right arises from the nature of the services and cannot be changed by the contract. The only way to distribute risks in case of the customer’s refusal from the service contract remains the term on payment of compensation. If this term is not set, the contractor’s (service provider) losses are calculated according to the general rules.

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Keywords: service contract, take or pay, subscription agreement, equivalence principle

Ecclesiastical marriages are not currently recognised in the Russian Federation. The Russian Orthodox Church on the contrary recognises civil marriages, and, moreover, requires state registration of marriage before the wedding ceremony. The dual system of marriage celebration results in some peculiarities in ecclesiastical divorce law. Civil divorce dissolves civil marriage, while an ecclesiastical divorce must be issued to dissolve ecclesiastical marriage. The abolition of “multi-tiered marriage” is possible if the State recognises ecclesiastical marriages. Otherwise the church authorities could stop requiring of state registration as a prerequisite for ecclesiastical celebration of marriage. Currently more harsh punishment for violation of ecclesiastical divorce law might be introduced.

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Keywords: ecclesiastical law, ecclesiastical marriage, civil and ecclesiastical divorce

The article shows that the method of law and economics is widely used in Russian tax law. The adoption of a general anti-evasive norm (Article 54.1 of the Tax Code) forced the courts to revise and update the settled case-law, which resulted in the settling a number of precedent cases by the Judicial Collegium for Economic Disputes of the Supreme Court in 2020–2021. The author attempts to review the Supreme Court case-law, consider an alternative model of anti-evasive judicial doctrines, based on the economic analysis of law.

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Keywords: law and economics, economic analysis of law, equality of taxation, principle of neutrality, taxes anti-avoidance

The author offers to Russian readers the first full translation of American Foreign Trade Definitions, which are the monument of trade legal thought practically unknown for us despite its inherent epochal importance at the time. It illustrates the peculiar ways in which the terms of allocation of costs, risks, burdens and responsibilities between the parties to international sales contracts have always distinguished American traders from their counterparts in Europe and other parts of the world; it is also one of the first and most striking results of the practical application of a method which is still used today for private-law unification. The American Foreign Trade Definitions are substantively and methodologically Incoterms’ closest relative and at the same time uncompromising rival and competitor; getting acquainted with them enables one to grasp better the content of ‘trade terms’ that are nowadays more numerous and intricate. This publication brings to our attention a soft law act that has not hitherto been used in our academia; it is also of great value for merchants and arbitrators of international commercial arbitration tribunals as a tool for establishing international commercial customs and as an aid to the interpretation and application of national codifications, international conventions, NLM-Acts and international commercial contracts based upon them.

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Keywords: commercial law, trade customs, soft law acts, contract law, law of obligations, Incoterms, terms of contracts for the international sale of goods (trade terms)