Magazine content за Декабрь 2022 г.
Magazine Cover
Press to zoom

Buy a PDF


mag->month > 0 ) { ?>

mag->getMonthString();?> mag->year;?>

mag->pdf_file): ?> sess && $this->sess->isArticlePayed()):?>

Декабрь 2022



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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF



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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF