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ARCHIVE FOR 2022    RUSSIAN

Июль 2022

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

The Right to Abortion: A New Look by the US Supreme Court
Comments by L. Miheeva, S. Budylin, E. Kuznetsova, M. Agaltsova
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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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