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ARCHIVE FOR 2022    RUSSIAN

Май 2022

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

Topic of the issue

A.V. Egorov Changing the Law as a Form of Its Authentic Interpretation
The article shows by way of examples derived from the history of national private law for the years 2011–2022 the necessity of highlighting the so-called interpretative legal norms, the peculiarity of which lies in their inherent retroactive effect, i. e. extending them to the circumstances that preceded their adoption. The author suggests that from a doctrinal point of view interpretative legal norms can be considered as acts of authentic interpretation of previously existing norms. Such an interpretation formally looks as a new legal norm, but in fact it is precisely an act of interpretation of a previous norm. When qualifying a legal norm as interpretive, the key question is the extent to which the coinciding in content with the new norms practice of interpreting previously adopted norms has developed. The author also draws attention to the danger of retroactive legal positions of case law. At the same time, it is proposed not to prohibit retroactive effect (of law, case law), not to impede the interpretation of interpretative legal norms as acts of authentic interpretation, but to develop criteria under which the presence of retroactive force contradicts legal policy and makes it impossible even to consolidate retroactive force in the law.
Keywords: Authentic interpretation of the law, interpretative legal rules, effect of the law in time, retroactive effect of the law, effect in time of the legal positions of the courts
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A.D. Shelkunov Economic Analysis and Interpretation of VAT Regulations
The article concerns the role of the economic analysis in the interpretation of rules related to VAT. The author notes the problems caused by the long lack of the correct understanding of the economic and legal nature of VAT in Russia, and also considers the cases from the foreign judicial practice and practice of the Supreme Court of the Russian Federation, in which the use of the economic analysis in the interpretation of tax norms follow the correct application of these norms and resolution of the disputes.
Keywords: value added tax, economic analysis of law, economic and legal nature of VAT, principle of VAT neutrality
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P.D. Blokhin The Phenomenon of “Spoiling” and the Meaning of Purpose in Public Law
This article discusses the phenomenon of “spoiling” in public law. This phenomenon is proposed to be understood as the behaviour of the subjects of legal relations (including representatives of the authorities) whose main purpose is to make it difficult (to block) for other subjects to realise their constitutional rights. Three situations are considered as examples. First, the challenge by a person, through administrative proceedings, of a legal act containing normative and individual precepts in order to prevent other interested parties from challenging it in the future. Second, the submission of a notification of a public event in a designated place in order to block the possibility of holding another event in the same place at the same time. Third, a changing person name and then registering as a candidate for elected office in order to deny a share of the vote to a better known candidate with the same name who is running in the same constituency.
Keywords: spoilers, abuse of rights, public assemblies, candidate in the election, contesting normative acts
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J. Neuner Law and the Legal
The work of the authors is a translation of part of the paragraph “Statute and Law” from the textbook “The General Part of Civil Law” edited by Neuner. This section reveals the algorithm for interpreting the text of a private law, approaches to such an interpretation and the results obtained.
Keywords: interpretation of the legal, grammatical interpretation, system interpretation, theory of objective interpretation, theory of subjective interpretation, will of the legislator
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E.Yu. Gorbunov From Provision of Statute to the Legal Norm: a Model for the Application of Law and Directives of Interpretation Under the Polish Doctrine
The article reviews the key approaches of the Polish doctrine to the problem of interpretation of law. Characteristic feature of the Polish doctrine is the distinction between the provision of the statute and the legal norm. This distinction is the basis of the theory of interpretation widespread in Polish science, according to which the ultimate objective of interpretation is not just understanding the meaning of the provisions of laws, but reconstruction from these provisions a rule of conduct (legal norm). This goal is served by the application of the so-called directives (rules) of interpretation (language, systemic and functional directives), which are also discussed in the article. The author believes that the developments of the Polish doctrine regarding the interpretation of law are also relevant in the Russian context, and therefore they require indepth study and, possibly, their adoption in the arsenal of national jurisprudence and legal education, in which insufficient attention is paid to the application and interpretation of law.
Keywords: legal norms, application of law, interpretation of law, rules of interpretation, Polish theory of law
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Discussion Board

A.A. Kostin The Recognition of Foreign Judgments on Opening of the Insolvency Proceedings on the Basis of the International Treaty on Civil Assistance (Analysis of the Russian and Foreign Experience)
The paper addresses the issue of whether or not it is possible to recognize foreign judgment on opening of insolvency proceedings under the treaty on rendering legal assistance. In particular, it examines the prerequisites for the conclusion of such treaties, as well as the practice of their application in relation to this category of foreign judgments. Based on the analysis of the doctrine, the author comes to the conclusion that a foreign judicial act on the opening of bankruptcy proceedings can be considered as a “decision in a civil case” for the purpose of applying the relevant treaty. This circumstance, according to the author, results in the possibility of recognizing this category of foreign judgments in the Russian Federation on the basis of treaties on rendering legal assistance, despite the existing approach of the Russian courts.
Keywords: cross-border bankruptcy, international agreement; recognition and enforcement of foreign judgments
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A.F. Pyankova Amendments to the Сivil Code of the Russian Federation on Real Estate: One Step Forward and Two Back?
The article is devoted to the analysis of the Civil Code of the Russian Federation norms. The norms of this law are investigated in the system of current legislation and in the judicial practice context, in particular, on the issue of the right to lease part of a thing. The concepts of a land plot in the commented Federal Law and in the Land Code of the Russian Federation are compared. Comparison of three lists of the common property of the owners of the premises is carried out. It is concluded that most of the novels reinforce the already established approaches in judicial practice or duplicate the normative material of other federal laws.
Keywords: real estate, land parcel, premises, parking space, common property of the building
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Press Release

 

Theory and practice

M.G. Pilikina About the Possibility of Implementation of Damages Foreseeability Rule in the Contract Law of Russian Federation
The article deals with issues concerning foreseeability of damages rule origins in the contract law, correlation between foreseeability rule and causal link in the context of foreign countries experience and its regulation in terms on international acts. The author draws attention to the Russian case law in the light of foreseeability rule application and concludes that implementation of foreseeability principle is рossible and reasonable. The author proposes to define the foreseeability rule in the Civil Code by consolidation of wordings used in UN Convention on Contracts for the International Sale of Goods and Principles of International Commercial Contracts.
Keywords: foreseeability of damages, causal link, subjective and objective criteria, possible consequence, being likely to result of breach
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K.V. Ivasenko Other Interested Parties as Subjects of a Right to Appeal: When Violation of Rights and Legal Interests is Found
It is not only parties to a case but also other persons whose rights and legal interests are concerned, who enjoy right of appeal within current criminal proceedings. That said, neither the law nor clarifications by the Supreme Court of the Russia provide comprehensive understanding of who exactly from the nonparticipants and in which exact cases has right to appeal. The author suggests an interpretation of the “other interested parties” based upon analysis of the case law, defines spheres of their interests, and analyzes practical difficulties related to defense of property rights and rights connected with other proceedings. As a result, the author provides criteria that the courts take into account when deciding on whether to accept an appeal for consideration and on whether to admit an “interested party” a subject of a right to appeal.
Keywords: subjects of a right to appeal; other interested parties; seizure of property; physical evidence
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P.D. Chistyakov Tort Qualification of Precontractual Liability in Russian Law: Pro and Contra
The article analyzes the possibilities of tort qualification of precontractual liability in Russian law. It considers the advantages and disadvantages of tort characterization of liability at the stage of contract conclusion, and proposes ways to eliminate the shortcomings of tort qualification of precontractual liability in Russian law. The author determines how effective the solutions offered by tort law are.
Keywords: рrecontractual liability, general tort, tort liability, contractual liability
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A.D. Mandzhiev, T.S. Martyanova Assurances About Circumstances: How Important is it to Rely on Them?
The article analyzes one of the most acute practical problems associated with the protection of violated rights from the assurance — the knowledge of the person being certified about the falsity of the assurance at the time of its provision as an obstacle to the protection of rights from the violated assurance. The content of conditions of liability for the falsity of the assurance legalized in paragraph 1 of Art. 431.2 of the Civil Code is revealed. The main practical problems associated with it are identified, as well as recommendations are given on how to make contractual assurances more effective.
Keywords: assurances of circumstances, concept of “reliance on assurance”, Article 431.2 of the Civil Code
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Foreign experience

M. Kolzdorf, I. Semenova Auctor Ex Machina. Anglo-Saxon and Continental Law Approaches to Machine Creativity
The article reveals the main features of Anglo-Saxon, American and continental European copyright law. The general concepts of “work” and “authorship” in the respective systems are considered, the approaches and trends in the development of regulation in terms of the possibility of protection of objects created with the participation of artificial intelligence, under copyright or other regimes are analysed. Issues related to the recognition of rights to such objects by the persons involved in their creation are explored.
Keywords: machine creativity, artificial intelligence, work, authorship
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A.N. Vereshchagin “Cassation Crimes”: The Ruling Senate and the Application of Criminal Law by Way of Analogy
The article presents cases in which the supreme court of the Russian Empire — the Cassation Senate — applied criminal law by analogy. This power of the supreme cassation court to create new offences not directly provided for by law was clearly crossing the line which separated legal interpretation from judicial law-making and therefore was considered extremely controversial, even scandalous, being subjected to incessant criticism among legal scholars as violating the principle nullum crimen sine lege. At the same time, like everything controversial and unusual, it is a very curious and instructive subject for scientific interest.
Keywords: Ruling Senate, interpretation of the law, judicial law-making
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