ARCHIVE FOR 2022 RUSSIAN
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Декабрь 2022
CONTENT
Chief editor’s column
Interview of the issue
Topic of the issue
P.D. Blokhin The Structure and Lawful Limitations upon Fundamental Rights: Russian Constitutional Model The author seeks to present a systematic, internally consistent
picture of fundamental (constitutional) human rights and freedoms.
For this purpose he distinguishes the limits (borders) of a right and
its essential inviolable core; the basic content of the right is presented
as an innumerable set of powers, some of which come into effect
only along with the development of science and technology. Such
powers may be subject to regulation, which includes — depending
on their strength — both limitations of rights and conditions for
their exercise. This regulation, however, is possible only if the
lawmaker meets certain formal and substantive requirements.
If one goes beyond these restrictions and conditions, as well as realises one’s right in order to harm the rights of others (abuse), this
makes the protection of the individual’s claims as subjective rights
impossible.
Keywords:
limitation of right, limits of right, basic content of right, absolute rights, abuse of right
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A.A. Volos, A.A. Ivanov Digitalisation and the Constitution The article is devoted to the question whether there is a unique right
to digitalisation as a separate constitutional right. Researching several
aspects of the declared topic, the authors formulate the concept
of the right to digitalisation. There are significant arguments to
confirm that this unique right does exist. Moreover, the authors
offer its legal justification. In order to form a comprehensive view of
the constitutional right to digitalisation, the authors reveal its subject,
object, and content. For the purpose of development of the discussion
in the proposed field the difficulties of implementing the right to
digitalisation in the branches of Russian law are emphasised. Certain
problems of implementation of the right to digitalisation are also
considered. The authors make a fundamental conclusion that the right
to digitalisation has been developed in the Russian Federation and
can be considered as constitutional. It is the right of any person who would like to perceive and apply the norms of law using digital means,
including the right to refuse to use the latter. The further stage of its
establishment and development could be the disclosure of this right by
the Constitutional Court of the Russian Federation.
Keywords:
constitution, constitutional right, digitalisation, the right to digitalisation, digital law, digital environment, the Constitutional Court of the Russian Federation
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V.V. Aleynikova Legal Status of Embryos: In Search of the Balance of Interests In this article the author considers the issues related to the legal
status of human embryo, which received a new rethinking in
connection with the possible use of cell lines obtained from
aborted embryos in vaccines against coronavirus. The spiral
of controversy regarding the admissibility of using embryonic
cell lines as part of the components of a vaccine against a new
coronavirus (COVID-19) has raised a number of legal questions:
the legal status of in vitro embryos and determining the fate of
unclaimed embryos, including the issues of the admissibility
of using embryos (unclaimed or created for the first time) for
research purposes, the production of biomedical cell products and the determination of limits “what is permitted”. In most
cases foreign courts have noted embryo’s special, intermediate
position, which cannot be fully reduced to the legal status of
a born child or to the legal regime of a thing. The practice of
the European Court of Human Rights revealed several aspects
related to the legal protection of the unborn life: the right to life
and the woman’s right to abortion (right to life v. right to choice),
the determination of the fate of created and non-implanted
embryos. Defining the margin of appreciation in terms of making
fateful decisions for embryos involves the competition of two
directly opposite interests related to the right to procreate and
the right to avoid procreation.
Keywords:
embryos in vitro, the right to life, the 14-day rule, the use of embryos for research purposes
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I.N. Kharinov, Ju.E. Kiel Expropriation of Land Plots for the Purpose of Integrated Development of the Territory: the Problem of Identifying Public Needs The article analyses the features of the legal regulation of
the expropriation of land for the purpose of the integrated
development of the territory, which is the main legal instrument for
the release of land and real estate from the rights of third parties
for subsequent involvement in construction. The authors note
the problem of determining (identifying) genuine state or municipal (public) needs. The lack of a clear understanding of the expropriation
of land law entities have the relevant needs for the possibility of
expropriation in general gives rise to the adoption of ambiguous
court decisions that demonstrate the attempts of the law enforcer
to broadly interpret the provisions of Article 49 of the Land Code of
the Russian Federation. The appearance, in fact, of additional public
need in the form of the need to implement a project for the integrated
development of the territory creates appropriate difficulties in terms
of the application of general and special rules on the expropriation
of land for by land legislation. Using the methods of systemic and
teleological interpretation, as well as taking into account the trends
in judicial and arbitration practice, the authors provide a justification
that the achievement of the goals of the integrated development of
the territory is possible only on the condition that the implementation
of such development of the territory acts as an independent (“other”)
basis for the expropriation of land, and the condition for such
withdrawal is a legitimate decision on the integrated development
of the territory.
Keywords:
guarantees of the rights of individuals, expropriation of land, state and municipal purposes, objects of public importance, integrated development of the territory
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Discussion Board
K.Yu. Molodyko, G.D. Travin The Retail Investor as a Consumer: Recognising the Boundaries Currently approximately every sixth Russian adult has an account
open with a Russian broker. Stock market transactions recently
have transcended their status as a premium service for a small
group of the wealthy, and are widely available to the masses,
which has drastically increased their importance within society.
However, in Russia retail investors are not considered consumers
of financial services. The article analyzes the possibility and
necessity of applying “consumer” status to investors based
on foreign (especially American) experience. Historically in
Russia, certain consumer categories have not been governed by
the general provisions of the Consumer Protection Act. According
to the authors, not necessarily every consumer is subject to said
act. Authors consider applying a reasonable originalist approach
to the construction of legal acts. In that sense protection from
commercial risks inherent to investing, especially in foreign assets,
has never been the purpose of the act in question. Moreover,
continuous active high-stakes trading in the stock market shall
be considered entrepreneurship. Following from this, such
investors shall have limited protection and are to be excluded from
the consumer protection regulation, which is only to be applied to
smaller investors choosing stocks and bonds of Russian issuers
traded in the Russian exchanges. Such investments to a reasonable
extent shall also be covered by the guarantees provided by
the Deposit Insurance Agency in the event of bankruptcy of
the broker. All the other investors shall then be considered selfemployed
subject to professional income tax, and the ones with
extensively high profits shall be considered entrepreneurs.
Keywords:
retail investor, consumer, stock exchange, originalism, selfemployed, professional income tax
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Press Release
Theory and practice
V.L. Tolstykh A Crisis of International Law: A Diagnosis The question of the crisis of law presupposes not only the question of
the regularity and seriousness of its violations, but a much broader
problem affecting the issues of legitimation and goal-setting of
law, its development, the state of a professional corporation,
and so on. The diagnostics of these dimensions gives grounds
for stating: yes, international law is in crisis. The symptoms of
the crisis can be reduced to the following main manifestations.
First, the prohibition on the use of force enshrined in the UN
Charter is not backed by the necessary guarantees. Secondly,
the order created by the UN Charter contributes to the observance
of international law to a lesser extent than previous regimes.
Third, the existing foundations of the international order have been
devalued; the new foundation seems to be destruction and division.
Fourthly, the idea of state (sovereign) will remains the foundation
of the theory of international law, but is being squeezed out of
international legal practice, which is increasingly oriented towards
the use of non-consensual mechanisms (technologies). Fifth,
the discourse of international law looks exhausted and incapable
of generating new meanings. Sixthly, the judicial (adversarial)
dimension of international law, which is currently dominant,
presupposes a disregard for the broader social context; ignoring
historical, cultural and other dynamics makes many decisions
ineffective. Seventh, the scientific corporation (the community of
international lawyers) is gradually removed from decision-making
and abandons its claim to independence and intellectual depth.
The crisis of international law is not accidental and spontaneous,
but is a natural result of the historical process — the next, but
perhaps the last stage in the development of international law.
Critical studies in international law are developed to a much
greater extent than in national law: this allows us to hope, if not
for overcoming the crisis, then for its explanation.
Keywords:
international law, crisis of law, prohibition of the use of force, effectiveness of law, legitimacy, positive law, legal discourse, epistemology of law, doctrine
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V.A. Alexeev Protective Obligation: The Legal Essence and Issues of Judicial Practice The article discusses different points of view on the legal nature
of the protective obligation in relation to objects of cultural
heritage (monuments of history and culture). The author believes
that protective obligations, both under the previous and current
legislation, regardless of the form they were given, could not be
considered as contracts or obligations. A protective obligation has
always been an act of public authority, formalising the public law
obligations of the holder of the right to an object of cultural heritage.
In connection with such a definition of the nature of the protective
obligation, the protective obligations could not provide grounds for
bringing the owners of protected objects to civil liability. For violation
of protective obligations, only administrative liability is justified.
From the public law nature of protective obligations, it also follows
that when certain subjects (for example, tenants) are excluded
from the number of persons obliged to fulfill protective obligations,
in relation to such persons the effect of protective obligations is
terminated since the entry into force of this regulation.
Keywords:
protective obligation, object of cultural heritage, monument of history and culture, encumbrance, private and public law, civil liability, penalty, administrative liability
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K.O. Antonyuk Corporate Derivative Claim in Russia: A Tool to Protect a Corporation from Management Harm or a Way to Intrude into a Corporation’s Relationship with Third Parties? Derivative claims in corporate law are claims that participants
(shareholders) file ‘on behalf of and in the interests’ of the corporation,
and the enforcement is held in favor of the corporation itself. This
is an extremely popular way to resolve a corporate conflict: every
year Russian arbitrazh (commercial) courts consider about 2,000
such claims, which is 10–15% of all corporate disputes. In Russia,
compared to foreign legislations, the participants of the corporation
have the right to interfere in the relations of the corporation with
third parties. As judicial statistics demonstrate, claims to challenge
transactions of a corporation are more popular and more effective
compared to a classic damages claim against management.
Keywords:
derivative claim, judicial statistic, damages, contestation of transactions
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A.F. Voronov, E.V. Zaychenko On the Right to Receive a Copy of the Appeal Ruling (Court Practice, Instructions for Judicial Proceedings, Legislation) The civil procedural rules directly provide for the delivery and
sending a copy of the court decision by the court of the first instance
to the persons participating in the case, as well as some court
rulings. In the article, the authors analyse the common practice of
the courts of appeal, according to which the participating parties
do not receive a copy of the ruling of the appellate court directly
from the court of appeal. The parties themselves must apply to
the court of first instance with a request for a copy of the judicial
act. The authors investigate the reasons for the emergence of such
judicial practice and raise the question of its compliance with
the civil procedural law.
Keywords:
civil proceedings, trial in the court of appeal, sending and serving a copy of the court decisions and rulings, rights and obligations of the parties to a trial, the duties of the court
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N.N. Melnikov The Category of ‘Common Use’ in Land Legislation The article examines the theoretical and practical problems of legal
regulation of the category of “common use” in land legislation.
Keywords:
common use territories, common use lands, common use zones, common use land plots, adjacent common use territories, general purpose land plots, red lines, custom, common use right, public easement
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Yu.D. Zhukova, A.S. Podmarkova Uncertainty of the Legal Status of the Self-Employed. Judicial Practice Review In this article, based on the analysis of court decisions of recent
years, the authors consider the uncertainty of the legal status of
the self-employed revealed in practice. The authors believe that
the “self-employed” in the law enforcement and legal doctrine
are mainly considered as citizens applying the special tax regime
‘Professional Income Tax’ (hereinafter referred to as the NPA)
and come to the conclusion about the validity of applying this term only to those NPA payers who do not have the status of an
individual entrepreneur. The article analyses such problematic
aspects of the legal status of the self-employed as determining
the proper jurisdiction for their disputes, the application of
consumer protection legislation to them, as well as the problem
of requalifying the relations with their participation into labour
relations. The authors conclude that it is necessary to amend
the current legislation in order to ensure a balance of interests of
self-employed and other persons.
Keywords:
self-employment, self-employed people, professional income tax (NAP), legal status of self-employed people, jurisdiction of disputes of self-employed, circumvention of the law for illegal purposes
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K.A. Sasov Whether it is Lawful to Apply Liability for Failure to File a Tax Return: the Dispute is Still Pending Tax disputes based on accusations of the artificial splitting
of a business are quite common. Some tax authorities in this
situation refer to both Arts 122 and 119 of the Russian Tax Code, believing that the taxpayer’s failure to file tax returns under the
proper tax regime constitutes an offence under the latter article.
Judicial practice is not uniform with regard to assessing whether
such classification of tax offences is lawful. Unfortunately, judicial
acts rarely feature reasoning about the purpose of establishing
liability under Art. 119 and as to whether real law enforcement
corresponds to its provisions. An analysis of Ruling No. 308-
ES22-1936, handed down on August 26, 2022 by the Russian
Supreme Court reveals the reasons for the Court’s controversial
conclusions.
Keywords:
uncertainty of a tax offence, non-uniform judicial practice, violation of a taxpayer’s constitutional rights
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Foreign experience
E.Yu. Gorbunov Duty of Mutual Fidelity of Spouses. Polish Legal Reality vs Gap in Russian Law The article discusses the evolution of Russian and Polish legislation
on the issue of the duty of fidelity of spouses, and also analyses in
detail the main approaches of Polish judicial practice and doctrine
that reveal the content of the duty of fidelity of spouses. Express
fixation of this obligation in statutes and taking into account the guilt
for the breakup of family life led to the emergence in Poland of
a fairly developed (in comparison with Russia) legal regulation of
a very delicate area — the sexual life of married people. Supporting
the idea of fidelity as a condition for maintaining two of the three
components of joint life in marriage — physical community and
spiritual (mental) community, Polish judges have developed
a completely workable approach as to how to determine a violation
of the duty of fidelity — the concept of appearance of infidelity.
The author believes that due to the inefficiency of the moral regulator
and the risks of opportunistic behavior in marriage, Russian law
should protect the expectations of persons wishing to enter into
a “traditional marriage” and should provide the duty of mutual fidelity
of spouses expressly. For those who do not accept fidelity, but still
consider it necessary to marry, the law may provide for the possibility
of excluding this obligation by agreement of the parties.
Keywords:
personal duties of spouses, duty of fidelity of spouses, appearance of infidelity, marriage, Polish family law
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