ARCHIVE FOR 2022 RUSSIAN
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Июль 2022
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.V. Yudin Delineation of Abuses of Procedural Rights in the Civil Process from Related Legal Phenomena The argument about the prevention of procedural abuses is used
as a criterion for the acceptability of procedural novelties, as
well as a criterion for the correctness of a procedural provision.
Such popularity of the institution in question urgently requires its
delineation from other related legal phenomena in order to prevent
the blurring of the legal content of the category of abuse of procedural
rights, which often occurs both in judicial practice and in scientific
research. In this paper, the author has attempted such a distinction,
proving the fallacy of attributing to the abuse of procedural rights:
forms of behavior qualified with reference to Article 10 of the Civil
Code of the Russian Federation, that is, as a violation of the limits of
the exercise of subjective civil rights; non-fulfillment by the subject
of procedural relations of the legal procedural obligation on him;
forms of behavior of participants in the process with a special
public status, involving violations of corporate, professional, job
standards and requirements; conduct of a person participating in
the case, allowing procedural and non-judgmental inaction in the
absence of an explicit legal obligation and responsibility for its nonfulfillment,
or in the conditions of the apparent presence of a legal
obligation; forms of behavior arbitrarily determined by the court.
The author claims that the mutual appeal to the abuses committed,
the reference to this circumstance without any reason, the use of
this “fashionable” concept where in reality there is no actual and
legal position — all this leads eventually to the devaluation of this
procedural category. The understanding of the abuse of procedural
rights proposed in this paper, with the simultaneous denial of
forms of behavior that cannot be attributed to abuse, will eliminate the unjustified expansion of the semantic and formal-legal scope
of this category, ensure the accuracy of law enforcement and
qualification based on a uniform understanding of the procedural
law and the positions of judicial practice.
Keywords:
abuse of procedural rights, abuse of law, good faith, bad faith, civil procedural offense, arbitration procedural offense, procedural violations of subjects of professional activity, procedural action, procedural inaction
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V.V. Yarkov Proving the Abuse of Procedural Law The article deals with the issues of proving the abuse of
procedural law in the framework of arbitration, civil and,
to a certain extent, administrative proceedings. The author
draws attention to the evaluative nature of this legal concept,
which complicates the corresponding doctrinal and judicial
qualifications of abuse of procedural law. The concept of abuse
of law in legislation, doctrine and judicial practice is considered
and the main characteristics of this concept are revealed. When
considering the subjects of proving abuse of procedural law,
attention is drawn to the active role of the court, which is based on the corresponding interpretation of the Supreme Court of
the Russian Federation. The features of proving the abuse of
procedural law are highlighted and analyzed, taking into account
the positions of judicial practice.
Keywords:
аbuse of procedural law, proof, subjects of proof, good faith
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A.A. Smola The Submission of the Draft Judgment to the Court: Is There a Possibility of the Procedural Abuse? The author explores the issue of draft judgments submitted
to the court by a party to the case — as far as such an action is
covered by the procedural ruling of the Supreme Commercial Court of
the Russian Federation. The rule still exists and may be regarded also with reference to the abuse of procedural rights. The investigation
includes the analysis of the procedural legislation, the practice of
the commercial courts in Russia, the regulation of similar action in
court proceedings in the U. S. and some other countries. The author
points out the limits of the admissible procedural action and proposes
criteria for evaluation: whether the exceeding of the limits should be
qualified as abuse of right or violation of the procedural law.
As the result of the analysis the author presents arguments for
the necessity of the direct application of the basic principles of
civil procedure — adversarial system and equality of rights —
to the procedural action in question, which is not mentioned in
the legislation. The author reaches the conclusion on the legal nature
of the draft judgment (or order) that it should be considered the legal
document. Some suggestions are made, concerning the required
legal regulation — in detail, to prevent the abuse of the procedural
rights and for fighting it.
Keywords:
civil procedure rules, arbitrazh procedure rules, procedural legislation, violation of procedural law, abuse of procedural rights, draft judgment (proposed order), drawing up of court judgment by a party to the case
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N.V. Platonova Concealment of Factual Circumstances by a Trial Participant as a Reason for a Delictual Obligation (Articulation of Issue) The article covers the problem of civil liability of a person involved in
a case for concealing facts that are essential for the correct resolution
of a dispute. The author agrees with the approach of the Supreme
Court on the possibility of compensation for harm caused to a trial
participant by presenting counterfeited evidence, and finds grounds
for widespread use of this position. Despite the fact that victory in
a dispute is a legitimate goal of procedural activities, it must be
admitted that parties are obliged to inform the court of all known
facts that could affect the court’s decision, including facts testifying
in favor of the opposite party.
Keywords:
compensation for harm, concealment of factual circumstances, illegal procedural acts
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Discussion Board
V.M. Zhuikov New Problems of Direct Operatiom of the Constitution of the Russian Federation and Access to Justice in Order to Protect Human Rights and Freedoms The article examines the problems of direct operation of the Constitution
of the Russian Federation as a legal basis and means of
protecting human and civil rights and freedoms, as well as access
of interested persons to justice in order to protect these rights
and freedoms, the provision of which is a necessary condition
for the functioning of the rule of law (Articles 1, 15, 18, 46 of
the Constitution of the Russian Federation).
These problems arose due to changes in the practice of the Supreme
Court on the application of the Constitution and legislation regulating
constitutional and administrative proceedings, and then (in 2020)
also changes in the Constitution itself.
The author comes to the conclusion that ensuring the direct
operation of the Constitution and the right of everyone based on
it to judicial protection of his rights and freedoms has become much more complicated, and in some situations it has become
impossible at all.
Keywords:
The Constitution of the Russian Federation and its direct effect, the rule of law, human and civil rights and freedoms, judicial protection of rights and freedoms
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V.O. Kalyatin Deepfake as a Legal Problem: New Threats or New Opportunities? The widespread introduction of artificial intelligence has generated
many complex problems, and not the least among them is
the problem of deepfakes — photo, video or audio recordings
that imitate reality and images of people. Creating such files gives
new opportunities for creativity. At the same time, the creators of deepfakes often violate the rights of others and society as a whole.
It is very difficult to find answers to emerging legal issues related
to the protection of personal interests, consumer rights, countering
the spread of fake news, etc. This article discusses the most
important problems associated with the spread of deepfakes, and
possible ways to solve them.
Keywords:
information, deepfakes, the right to own image, confidential information, intangible benefits, criminal law, intellectual property, consumer rights, fake news
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Press Release
Theory and practice
R.A. Budnik, M.O. Zverev Intellectual Property of Gamers With the ripening of gaming platforms, their users have received
ample opportunities for creativity. In the new realities, the problem
of ownership to the results of intellectual activity that users create
inside games has become acute, and this point remains unresolved
until today. The situation is escalating by the growing gray market
of rights for new and derivative works developed by players inside
the video game ecosystem. Most publishers of electronic games
prohibit the legal trade of gaming artifacts and IP rights for them, but
demand inevitably constructs supply, and the exchange continues.
Due to the absence of a legal market, a significant part of the funds
earned by players, which exceeds the average market commission,
drops on the accounts of intermediaries organizing the shadow
operations.
This article analyses multiplayer online games from the standpoint of
IP rights. It compares provisions of several license agreements on
the rights to results of the users’ intellectual activity. The paper offers
answers to the legal questions of the computer gaming industry. Are
there grounds for granting IP rights to players? Is the legal market of
IP rights on user-created works possible, and is it justified from an
economic point of view? Special attention focused on the motivation
of gamers based on a dedicated sociological survey. As a result,
we substantiate the recognition of computer gamers’ IP rights and
the establishment of their legal trade.
Keywords:
intellectual rights of gamers, computer games, gaming creativity
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V. A. Zhukov Law and Ethics of Metavers The article deals with issues related to the influence of the metaverse
as a new technological phenomenon on law and ethics. The research
is aimed at understanding a new phenomenon and how law and
ethics are able to respond to the challenges of the time. The author
notes some zones and trends of such changes. An attempt is made
to predict what kind of changes in law may occur, and what ethical
standards will allow to remove the risks arising under the influence
of technology development. The material will be useful for lawyers,
GR-specialists in the field of IT-technologies and researchers in
the field of AR/VR technologies.
Keywords:
metaverse, virtual reality, VR, law, ethics
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E.A. Fokin The Impact of the Practice of the European Court of Human Rights on Russian Civil Justice: Success Stories and Unrealized Opportunities The article aims to answer the question of what exactly gave Russian
civil justice Russia’s participation in the European Convention
on Human Rights. The object of the analysis is the process of
implementing convention requirements in civil and arbitration
proceedings. The study aims to show, on the one hand, achievements
in the implementation of the convention requirements of a fair trial,
and on the other hand, to concretize the difficulties in reforming
domestic procedural law.
The study is divided into three semantic blocks that coincide with
the main areas of interaction between the Russian authorities
and ECtHR. The first part summarizes the reform of the Russian
verification authorities and analyzes how far in procedural legislation
and judicial practice it was possible to ensure compliance with
the requirement of legal certainty. The second block is devoted
to the complex way of implementing the standard of reasonable
terms of judicial proceedings and execution of judicial acts. Finally,
the third part examines the problems of implementing the standard of the court created on the basis of the law in the law enforcement
activities of Russian courts.
The article concludes that the Russian law and order has managed to
come much closer to the European understanding of a fair trial, even
though many of the ECtHR positions have remained unaccounted
for. The “free floating” of the Russian legal system obviously sets
new goals and objectives for the legislator and judicial practice
(which have yet to be realized), but the introduction of the ECHR
values (including in the field of justice) into the Russian legal order
is the main result of cooperation between Russia and the Council of
Europe.
Keywords:
standards of fair justice, European Court of Human Rights, competence of courts, reasonable time of legal proceedings, legal certainty
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D.A. Karimov Responsibility for Other People’s Actions: Representative Nature and the Possibility of Using Agent Theory The article concludes that vicarious liability relationship is of
agency nature. The advantages of this approach are found in
Anglo-American law, where due to broad meaning of agency,
the agency qualification of these relations dominates. This,
in particular, allows the use of doctrinal (primarily legal and
economic) achievements of agency theory for a broad spectrum of
instances of vicarious liability. Russian court cases are analysed
in a comparative context to illustrate that this conclusion is quite
consistent with Russian law.
Keywords:
vicarious liability, representation (agency), agency theory
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