Chief editor’s column
Interview of the issue
Topic of the issue
E.S. Krestyantseva Environmental Damage as Interpreted by Russian Courts The article discusses the legal problems of compensation for
environmental damage on the basis of judicial acts of the Supreme
Court and the Constitutional Court of the Russian Federation, as
well as the practice of arbitrazh courts. Trends such as the priority
of monetary compensation for damage over recovery in kind and the lack of correlation between the amount of compensation and
the costs of recultivation have been noted. Assessment of the
damage using calculating methods, as well as the way of spending
the amounts recovered, in the author’s opinion, deprives monetary
redress of its compensatory nature. As a result, the civil law
remedy performs an improper fiscal function and provides only
general prevention, but not the restoration of the disturbed state
of the environment. The author proposes to change approaches to
environmental damage redress, taking into account the rules on
“colouring” of environmental payments that have already entered
into force.
Keywords:
ecology, environment, damage, environmental harm, environmental payments
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P.V. Pozdnyakova Problematic Issues of Compensation for Environmental Damage: Comments on the Margins of the Review of Judicial Practice of the Supreme Court of the Russian Federation Author analyses some positions of the Review of judicial practice
on the application of environmental legislation, approved by
the Presidium of the Supreme Court of the Russian Federation
on 24 June 2022. This review is the first dedicated entirely to
environmental issues, and prepared as a result of the seminar
of the Supreme Court on the practice of courts in the field of
environmental protection. The author notes the presence of
disputable interpretations in this review, and also highlights
the various facets of the views taken by the Supreme Court and
the problems of their practical implementation. Among such
problems, there is a lack of uniformity in understanding the
harm to the environment, the absence of many environmental
quality standards as an obstacle to fair compensation for damage
to nature, compensation for environmental damage for lawful
activities on general terms with illegal users of natural resources,
an extremely high standard of proof in cases of environmental
compensation for users of natural resources, the difficulty of
holding state bodies accountable, etc. The author also highlights
the trends in legal regulation and law enforcement practice in
the field of nature management and environmental protection
outlined by the Supreme Court (“pro-state” bias in resolving
disputes, strengthening the priority of monetary compensation
over in-kind compensation for harm and the fiscal function of the
compensation, etc.).
Keywords:
environmental damage, environmental protection, environmental liability
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N.I. Khludeneva Emission Quotas as a Way to Reduce the Negative Impact on Atmospheric Air: Problems of Implementing an Experimental Legal Regime The experience shows that many instruments of state regulation of air
protection are de jure fixed at a high legislative level, but in practice
have a low potential due to the expensiveness of conservation
activities, insufficient interest of polluting enterprises in the real
reduction of the negative impact on the air, and miscalculations in
the process of planning, adopting and implementing environmentally
significant government decisions.
The article examines the experience of introducing an experimental
legal regime for emission quotas into the practice of state regulation
of atmospheric air protection in Russia and identifies the problems
of its testing.
Keywords:
experimental legal regime, consolidated calculations, emission quotas, legal protection of atmospheric air, federal project «Clean Air»
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E.V. Luneva On the Question of Legal Regime of Lands of Therapeutic and Health Areas and Resorts This article examines the uncertainty surrounding the legal regime
of therapeutic and health areas and resorts. Opposing legal attitudes
at both the executive and judicial levels have been identified. One
approach is based on extending the legal regime of specially
protected natural territories to therapeutic and health areas and
resorts created before 30 December 2013. The other confers on
them an independent legal regime, distinct from the regime of
specially protected natural territories which is more demanding.
The difference between these views manifests itself in addressing
a number of issues.
To ensure legal certainty, alternative recommendations are
formulated for resolving the collision of opposite views regarding
the legal regime of therapeutic and health areas and resorts through
amendments to legislation.
Keywords:
legal regime, lands of specially protected territories, therapeutic and health areas, resorts, specially protected natural territories, the district of sanitary (mounting and sanitary) protection, state ecological expertise
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L.G. Klyukanova Ecological Tourism in the Specially Protected Natural Areas: Recreational Activities and Protection of Environment The article deals with the problems of the legal regulation of the
organisation of the tourist and recreational activities in specially
protected natural areas. Traditionally implemented in specially
protected natural territories, the task of preserving unique natural
complexes and biodiversity in isolated conditions is currently being
transformed into the practical task of integrating them into the
socio-economic space. Ecological tourism combines recreational,
educational and investment activities in specially protected natural
areas in the most effective way and is based on environmental
principles. The article explores the legal mechanisms that ensure
a simultaneous effective combination of the protection of specially
protected natural territories and the implementation of tourism
activities in the context of sustainable development goals: unique
regime of protection and use for each category of specially protected
natural areas; environmental restrictions and prohibitions on the
implementation of activities in such areas; zoning their territory; their
maximum permissible recreational capacity.
Keywords:
environmental legislation, Ecological tourism, specially protected natural areas, recreational activities, protection of environment, sustainable development
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A.V. Khoroshavin On the Progress of Legislative Reform of Recycling of Consumer Waste: has there been any Progress? The reform in the field of consumer waste disposal, carried out
since 2014, designed to involve waste in secondary circulation, in
July 2023 was marked by the adoption of a number of legislative
amendments. This study presents a retrospective analysis of the
results of a ten-year reform which introduced into Russian law
the obligation of manufacturers and importers to dispose of waste
from the use of goods and packaging. The latest innovations in the
regulation of this sphere are assessed.
Keywords:
waste management, extended producer responsibility, extended producer responsibility, waste from the use of goods, waste reform
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N.V. Kichigin Current Legal Problems of Public Control in the Field of Environmental Protection Public participation in environmental protection is a prerequisite for
effective environmental policy. Environmental legislation provides for
public environmental control. The analysis of federal environmental
legislation shows that there are a number of legal problems in the
field of public environmental control that need to be eliminated.
The main problem is the lack of a unified approach and the need to
unify the models of legal regulation of public environmental control
in various acts of environmental legislation, which generates legal
uncertainties.
Keywords:
public environmental control, environmental protection, public inspector on environmental protection, state environmental control (supervision), legal uncertainty
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E.N. Abanina, E.A. Sukhova Features of the Turnover of Land Plots Depending on Their Intended Purpose and Permitted Use The article is devoted to some peculiarities in the legal regulation of
the turnover of land plots of various categories, on the example of
agricultural land, settlements and forest fund. The influence of the
intended purpose and permitted use on the turnover of the land plot
is considered, as well as a number of other urgent problems. Based
on the results of the study, proposals are made aimed at developing
the current legislation.
Keywords:
purpose, permitted use, turnover of land plots, land category, legal regime
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Discussion Board
L.V. Golovko The Institute of Administrative Prejudice in Criminal Cases, or the Patterns of the Transition from Quantity to Quality The return of the institution of administrative prejudice into Russian
criminal law in 2011 caused a flurry of criticism, roughly repeating
in material and legal terms the criticism to which the institution
was subjected in the late Soviet and early post-Soviet years, which
then led to its abolition. Today, procedural criticism has also been
added to it. At the same time, the legislator continues to develop
administrative prejudice, which leads to a gap between normative
existence and doctrinal assessments of the institution. How adequate
are its substantive and procedural criticisms? The question is not
simple and requires special analysis.
Keywords:
administrative prejudice, criminal law, criminal procedure, administrative tort law, social danger of crime
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Legal Chronicle The October Chronicle presents comments on the introduction of new types of taxes:
excess profit tax and one-time taxes; the adoption of the Constitutional Court ruling on the
correlation between a court decision to terminate a criminal case of private prosecution and
the decision of internal affairs bodies to refuse initiating a criminal case; the introduction of
additional administrative responsibility of social network owners and the adoption of the law
on the regulation of economically significant organisations.
Keywords:
excess profit tax, one-time tax, private prosecution cases, refusal to initiate criminal proceedings, liability of social networks, economically significant organisation
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Press Release
Theory and practice
V.M. Zaripov The Issue of Splitting Up a Business and the Need for a Comprehensive Reform of Tax Legislation A concept has been presented for a comprehensive reform of the
simplified taxation system and of its related areas, including VAT and
liability for breaching tax legislation. The reform is designed to keep
the problem of splitting up a business to a minimum, to provide for
a switch from the special to the general tax treatment, and to finetune
the simplified taxation system to meet today’s demands of the
development of small business and of Russian economy in general.
Keywords:
small business, simplified taxation system, splitting up a business, tax benefit, tax optimisation
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A.V. Egorov Assignment and Good Faith of the Debtor The article is dedicated to the aspects of protecting the interests of
the debtor in a situation where the assignment is invalid, including
contestation on bankruptcy grounds. The author defends the point of
view that the invalidity of the assignment primarily affects its parties,
and the risk of payment to an uncontrolled person (assignee) can
only be imposed as an exception, when the debtor’s knowledge of
the invalidity of the assignment is obvious.
This decision is based on the idea of protecting legal visibility
formed as a result of notification by the assignee to the debtor
about the assignment. The destruction of this visibility through the
imputation to the debtor of the responsibility for knowledge about
the assignment’s invalidity or deeming the debtor unfair the author
believes to be erroneous and extremely dangerous for the stability
of the turnover in which the assignments are gaining popularity. At
the same time, their contesting occurs frequently.
The act of the Supreme Court, which was adopted at the end of
2022, also demonstrates a dangerous mixture of the concepts of
subjective and objective good faith. Expecting the debtor to wait until
the dispute about contesting the assignment reaches the Supreme
Court, while being under the risk of double payment, creates
unreasonable uncertainty for the debtor.
Keywords:
competitive contesting of the assignment, the consequences of the invalidity of the assignment, protection of the debtor during assignment, subjective good faith
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H.V. Idrisov, A.S. Tazbaev Islamic Installment Agreement (Murabaha): Concept, Essential Conditions and Comparative Legal Analysis The authors subject to legal analysis one of the varieties of Islamic
financial transactions — the Murabaha contract. At the same time,
the legal characterisation of the Murabaha treaty is given from the
standpoint of Islamic law in the comparative context of Russian law.
In this connection, the purpose of the work is to characterise the
murabaha contract, its essential conditions and to identify the main
criteria for similarities and differences in approaches to this type of
transactions in Islamic law and Russian civil legislation.
The main difference between murabaha contracts and a contract of
sale with instalment payment under Russian law is that, according
to Russian law, the goods are considered sold to the buyer on
credit, i.e. such a transaction implies a loan element and the
possibility of obligating the buyer to pay interest on the overdue
amount (Article 488 of the Civil Code), which, in turn, is forbidden
by sharia. The murabaha contract refers to a type of transaction
between the parties in which the sale of goods at a price equal to
the purchase price plus a certain agreed margin occurs.
Such contract involves no hidden interest, fines, penalties and
commissions, i.e. there is no place for usury (riba). All this
guarantees minimisation of the risks of disputes for both parties
as much as possible, assumes the good faith of the participants
in the transaction, which increases the confidence of the parties
to each other and to the business as a whole. In this connection,
such a financial model is defined as ethical financing.
Keywords:
murabaha, purchase and sale, Civil Code of the Russian Federation, Islamic installment plan, contract, islam, muslims, Islamic law, Sharia, Sharia standards, integrity, riba, usury
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S.Yu. Chucha Wage Guarantees in the Event of an Employer’s Insolvency: Implementation and Prospects The state of legal regulation of guarantees for receiving wages in
case of insolvency of the employer is considered. The legislative
and law enforcement aspects of its improvement are substantiated.
Legislative initiatives to protect wages through the creation of
insurance funds are being evaluated. Based on the analysis of judicial
practice, ways are proposed to improve the system of privileges
aimed at protecting the material claims of employees during the
bankruptcy procedure.
Keywords:
guarantees, salary, employee, insolvency, bankruptcy, preference to the creditor, controlling debtor, subsidiary liability
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Foreign experience
S.L. Budylin Does Themis Distinguish Colours? U.S. Supreme Court v. Affirmative Action The article discusses the recent decision of the US Supreme Court
in the case of «affirmative discrimination» in universities. «Positive
discrimination» or «affirmative action» is a system of preferences, in this case for admission to a university, provided to historically
disadvantaged racial and ethnic minorities. The question is whether
such measures comply with the constitutional principle of «equal
protection of the law» and whether they infringe on the rights of
other ethnic groups.
Previously, the Supreme Court recognised some «affirmative action»
programmes in universities as constitutional, albeit with serious
reservations. According to the Supreme Court, such a programme, in
order to be recognised as legitimate, must undergo «strict control»
by the court. In this case, the Supreme Court, in principle, confirmed
the positions formulated earlier, but at the same time declared as
illegal some programmes that are very similar to those that were
previously recognised as legitimate. The Court emphasised that
«affirmative action» programmes should have a historically limited
duration, which, in the opinion of the Court, is already running out.
The issue of «affirmative discrimination» is in active dispute between
American «conservatives» and «liberals». The votes of the judges of
the Supreme Court were divided strictly along ideological lines: three
«liberal» judges voted in favour of approving the contested programs
of «positive action», while six «conservatives» were against.
Keywords:
USA, US Supreme Court, US Constitution, affirmative action, racial discrimination, equal protection, liberals, conservatives
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N.A. Sutormin Collective Actions in Japan: Past and Present The author is tracing the development of collective redress in Japan
beginning from feudal times till today. He comes to conclusion that
Japanese lawmaker shows restrictive and cautious approach to
implementing collective procedures in civil litigation.
Current regulation of representative and class actions in Japan is
characterised by opt-in model of member participation. In addition, the class litigation is based on the mechanism of an organisational
action. Such choice of the legal construction has different
consequences: on the one hand, it gives no chance to induce a
private initiative in the class litigation, but on the other it has a form
which is well-tested in European jurisdictions, and that makes the
class action stable. The author enphasises creative basis in building
an original model of the class action in Japan. It shows itself in
adoption of standards of a legal regulation in this field from European
countries and the Anglo-Saxon legal world. One of the realised
elements of the Japanese regulation was a bifurcation, which could
also be implemented in Russia. At the end of the article questions of
cross-border litigation are discussed concerning the use of the class
action in Japan.
Keywords:
collective action, representative action, class action, group action, consumer dispute, Japan, cross-border procedure
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