Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
G.A. Esakov On Concept of Unified Official Crimes The author analyses the system of crimes committed by public
and private official persons codified in the Criminal Code of 1996.
The hypothesis of the article is based on an idea that the strict
delimitation between crimes committed, on the one hand, by public
official persons and, on the other, by private ones is now eroded.
Todaу, the notion of “public official persons” includes managers
of state-controlled corporate bodies, even in cases of non-direct
control. The list of crimes for official persons in private sphere
copies the same list for public officials. The level of punishments
in case law is equal for both categories of managers. Therefore,
the author proposes to recodify official crimes as unified chapter in
the Criminal Code. This approach will allow to simplify the criminal
legislation and to preserve the idea of equality before the law.
Keywords:
official person, official crime, bribery, misuse of authority, punishment
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A.G. Bezverkhov, S.V. Elekina Strategy for the Development of Russian Criminal Legislation on Official Crimes in the XXI Century The article outlines the main contours of a new strategy for
the development of Russian criminal legislation on crimes against
the interests of the State service. It is indicated that one of the
stable legislative trends in the development of the norms on such
crimes in the first quarter of the 21st century is associated with
an increase in the number of their elements of crimes provided
for by chapters 23 and 30 of the Criminal Code. A number of
novelties have been predicted, including the possible introduction
of a new composition in Chapter 23 “Forgery of documents by
a person performing managerial functions in a commercial or other
organization”. It is shown that modern criminal legislation is moving
towards increasing the number of grounds for criminal liability for
corruption offences and ensuring a strict differentiation of liability
for these offences. With regard to the concept of an official, а
continuing broad interpretation of this concept has been detected. It is emphasized that on a historical scalе the crimes in question
are a kind of “pulsar”. In the transition of a society from one type
of management to another, such crime is either pulled together into
one “knot”, simplifying its structure to the maximum (official crime
in a society with an administrative-command control system), or it
unfolds in all the variety of types and forms, affecting many kinds
of organizational-managerial relations (office crime in a society with
market relations). Limiting its manifestation to the area of public
law relations, such crime takes the form of official crime, where
officials are the only special subjects of the relevant violations,
and corruption is reduced to its core — bribery. In the conditions
of an entrepreneurial economy, there are qualitative changes in the
content of the compositions of the violations under study, expressed
primarily in an increase in the number of main objects and in a variety
of special subjects, which indicates the process of transforming the
institution of “malfeasance” into a complex institution of official
(including corruption) offenses.
Keywords:
malfeasance, service offenses, corruption crimes, crimes against the interests of the service
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V.N. Borkov New Definition of Official: Problems of Interpretation The article examines the changes made to paragraph 1 of the note
to Art. 285 of the Criminal Code, which expanded the circle of
persons acting as possible subjects of malfeasance at the expense
of employees of commercial organizations designed to act in the
interests of the State. Such an approach, on the one hand, creates
the prerequisites for differentiating the responsibility of persons
vested with administrative powers, depending on the legal status
of the organization and the social expectations associated with its
activities. On the other hand, it gives rise to qualification problems
due to the complexity of the normative regulation of corporate
governance in business entities. The author gives reasoned
solutions to a number of special problems of establishing signs
of the subject of malfeasance. In particular, a person who has
committed an administrative crime in the exercise of his powers
in the organization specified in paragraph 1 of the note to Art. 285,
but who was not aware of this circumstance, is proposed to be
recognized as an official, guided by the qualification rule in case of
a legal error.
Keywords:
malfeasance, official, person performing managerial functions in a commercial organization, state participation in the management of business entities, factual error, legal error
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T.B. Basova Specially Qualified Kinds of Excessing Official Powers in the Light of Judicial Practice Based on the study of the law enforcement situation, the article
deals with the complex problems of the criminal law assessment
of especially qualified types of abuse of official powers, provided
for in paragraphs “a” and paragraph “c” of Part 3 of Art. 286 of
the Criminal Code of the Russian Federation. An answer is given
to a question that has an ambiguous interpretation in practice: in
what cases violent acts in excess of official powers are covered by
a simple offence of abuse of official powers (part 1 of Article 286
of the Criminal Code), and when should they be regarded as violent
abuse of official powers (para “a” part 3 of the same article). Based
on the analysis of the positions of the highest court, the author
supports the conclusion that the infliction of any harm to the health of the victim, including serious one, as a result of violence used in
excess of official powers, is fully covered by paragraph “a” part 3 of
Art. 286. A critical assessment is given to the practice of qualifying
the action, by which as a result of physical violence used by an
official, serious harm to health was caused not only under paragraph
“a” of Part 3 of Article 286, but also additionally impute liability for
causing grave consequences (paragraph “c” part 3 of Article 286).
The author believes that the official clarifications of the Plenum of
the Supreme Court may become of great importance in solving
these problems. This will give certainty to certain provisions of
the legal norms presented in Article 286 of the Criminal Code, which
are ambiguous, evaluative in nature, having unclear meaning. This
accordingly, will allow overcoming law enforcement difficulties and
defects in judicial practice.
Keywords:
abuse of power, use of violence, threat of violence, grave consequences, ideal set of crimes
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V.F. Shchepelkov Features of the Qualification of Official Crimes in the Field of Preventive Medicine The article provides data on official offences in the field of preventive
medicine in the Russian Federation, highlights typical official
crimes in this area. The legal analysis of the results of monitoring
the application of articles of the Criminal Code on responsibility
for crimes, which qualify official offences of representatives
of the medical community, allowed during preventive medical
examinations, medical examinations (Articles 290, 291.2, 292, 327 of the Criminal Code), is given. Conclusions on the qualification of
these crimes are formulated. Criminal and legal assessments of
the production and use of forged medical documents for various
preventive medical measures are shown, criteria for the public
danger of these crimes are highlighted. The typical legal situations
associated with the need to distinguish a single continued receipt of
a bribe from a set of crimes are analyzed.
Keywords:
qualification of crimes, official crimes, official forgery, taking a bribe, preventive medicine
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V.N. Shikhanov Are Doctors and Teachers Be Criminally Liable as Officials: Nuances of Law Enforcement The article analyzes the legal construction of the “official” in the
situation of its application to doctors, as well as teachers. In modern criminal law doctrine, as well as law enforcement practice, there
has not been a verified monotonous approach to the issue of the
possibility of bringing medical and pedagogical workers to criminal
responsibility for official crimes. Considering the arguments put
forward for and against such decisions, the author comes to the
conclusion that doctors and teachers should be attributed to a
special subspecies of officials, calling them “certifiers of legal
facts” or “factofixers”. In the domestic legal system, taking into
account the position of the Constitutional Court and the Plenum
of the Supreme Court, this function is recognized as a subspecies
of organizational and administrative powers. It is noted that the
incorrect decision on the presence or absence of signs of an
official is often the reason for the incorrect application of this legal
construction. In order to improve law enforcement practice, such
errors are analyzed in the article, supported by individual court
decisions.
Keywords:
official, government representative, teacher, medical staff, criminal liability, special subject of crime
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D.A. Garbatovich Problems of Corruption Prevention in Russia: Implementation and Compliance with International Anti-Corruption Standards The article identifies the problems of preventing corruption
in Russia: 1) there are actual bribery of officials who are not
corrupt; 2) criminal repression does not apply to all participants in
corruption; 3) criminal-legal means in the prevention of corruption are characterized by low efficiency; 4) there is no strict control over
the compliance of expenses, property obligations of a person with
his legal income; 5) the desire of the state to prevent corruption is not
obvious to society. These problems exist due to the fact that the state
either does not have the ability to introduce, or is not fully able to
comply with international anti-corruption standards: 1) to recognice
any undue advantage as the subject of bribery; 2) establish criminal
liability of legal entities for committing bribery; 3) use the institution
of confiscation of property; 4) prevent the legalication (laundering)
of criminal property; 5) conclude government contracts based
on the principles of transparency and competition; 6) establish
control over the compliance of expenses, property obligations of
officials with their income; 7) regulate criminal liability for unjust
enrichment; 8) establish a requirement that a person be obliged
to prove the legality of the origin of property obtained as a result
of a crime and subject to confiscation; 9) instil in the society an
intolerant attitude towards corrupt behaviour.
Keywords:
prevention of corruption, international anti-corruption standards
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Discussion Board
V.A. Alexeev What’s New in Immovable Property Law: A Critical Commentary For the first time, the article proposes a critical legal analysis of
new norms of the Civil Code, which enter into force on 1 March,
2022, by virtue of Federal Law No. 430‑FZ of 21 December, 2021
“On Amendments to Part One of the Civil Code of the Russian
Federation”. It is noted that the law is the first normative act entirely
devoted to the implementation of the real law reform in relation to
the definition of the types of immovable things and certain issues
of their legal regime. An opinion is expressed about the reasons
that did not allow the inclusion in the Civil Code of norms aimed at
implementing the model of a single real estate object and the idea
of forming a new system of property rights. The author seeks to
reveal the real meaning of new legal norms and reflects on possible
(including negative) consequences of their application, critically
examines the wording of the law, proposing their interpretation
and possible changes in order to increase the efficiency of legal
regulation in the real estate sphere.
Keywords:
real estate, property law reform, land plot, building, structure, premises, common property of the building
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S.Yu. Chucha On the Issue of “New Social Law” and the Subject of Civil Law Using the example of civil and labor, the article attempts to understand
the structure of law, the reasons for dividing it into branches,
the reasons for the change in traditional subjects and the emergence
of new branches in the context of a change in technological structures.
The theory of labor relations is investigated. Assumptions are formulated
about the future transformation of private and public law in the context
of a change in the economic paradigm of society. The strengthening of
the role of existing and the emergence of new social branches of law is
substantiated. The author tries to argue polemically about the problems
raised in the article by A. A. Ivanov's “Expansion of the subject of civil
law: the social aspect”, recently published by “Zakon”, invites and even
provokes interested readers to dialogue.
Keywords:
civil law, labor law, social law, branch of law, labor relationship, digitalization, doctrine, paradigm, digital ruble
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Press Release
Theory and practice
R.V. Makin, A.А. Markelova Reservation of Lands: Some Problems of Legal Regulation and Court Practice This article analyzes legal institution of reservation of lands for
public needs, which is scarcely explored in the Russian legal
doctrine. Purposes and main features of the legal institution
of reservation of lands are discussed as well as a number of
problems in connection with the application of the rules of this
legal institution in practice, such as restrictions upon authority
of the owner of a reserved land plot, a problem of manifestation of
restrictions in connection with reservation, remedies of the owner
of a reserved land plot etc.
Keywords:
restrictions on the right of ownership, reservation of lands for public needs, principle of inviolability of property rights, expropriation
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K.V. Geets Binding Legal Relationship of the Administrator and Registrar of Domain Names: Occurrence, Modification and Termination The domain name system is managed by private organizations.
In the absence of civil law regulation of domain names in Russia,
the drafting of contracts for them involves strict compliance with
the rules of registration in the relevant domain zone, which has
a regulatory nature for both parties of the legal relationship. Being
a contract of accession and at the same time a public contract,
the contract for the provision of services between the registrar and
the administrator assumes different legal regulation of the possibility
of its unilateral change or termination, depending on the subject
composition of the parties and their conduct of business under
a domain name, which does not happen in practice. In addition,
the automated processes of concluding, changing and terminating
contracts do not imply a change in one party by registering
succession — instead, the legal relationship is terminated and
begins anew with a new party.
The features of the domain names themselves as unique digital
objects, in addition, suggest a limited use of cases of termination of
the registrar»s obligations — so, innovation and offset do not apply
to them. Since the legal relationship in question arises from a service
contract, partial termination of obligations also seems impossible.
The specifics of the object also does not imply the termination of
obligations due to the impossibility of their fulfilment, and the rules
for the registration of domain zones do not provide for the possibility
of termination of obligations by compensation.
Keywords:
domain names, termination of obligations, accession agreement, public agreement, amendment of the agreement, termination of the agreement
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O.A. Zharkova Creation of a New Real Estate: Public and Civil Legislation The article analyzes various types of urban planning activities that
can lead to the creation of a new capital structure and a new real
estate asset from the standpoint of public and civil law. According
to the author, not every new capital structure becomes a new real estate asset. Here, the crucial role is played by the registration
legislation, which finalizes the process of a new real estate asset
creation by transforming a new capital structure into a new real
estate asset. However, sometimes there is a lack of continuity
of urban planning legislation and registration legislation in
the regulation of the process of a new real estate asset creation, and
with the introduction of Chapter 6.1 Immovables into the Civil Code
of the Russian Federation, new questions arose, which the author is
trying to answer.
Keywords:
reconstruction, structural repairs, capital structure relocation, internal alterations of premises, property division, real estate asset creation, works on the adaptation of a cultural heritage site
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E.F. Evseev Appealing Default Judgement The legal doctrine of default judgement is probably the most favorite
target of criticism in theory of civil procedure. Not only some rules
of civil law that form it are assessed negatively — the very rationale
for its necessity, at least, as it exists today, is questioned. The main
reason for this is the lack of detail and accuracy of wording of the rules
contained in Chapter 22 “Judgement in Default” of the Code of Civil
Procedure, especially those that are devoted to an appealing against
default judgement, which naturally causes the lack of uniformity in
their interpretation and application. There is also a gap in law, which
is only partially corrected by the emerging judicial practice. However,
there is a tendency to cancel absentee decisions to the obvious
detriment and violation of the rights of plaintiffs and other persons
involved in the case that even more requires comprehension and
correction. All this explains the continuing relevance of research of
the procedure for appealing against default judgements.
Keywords:
judgement in default, default judgement, appeal of the default judgement, court ruling, procedural time limits, restoration of procedural time limits, procedural complicity
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