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Октябрь 2023



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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A.N. Vereshchagin Liability for Violation of the Law on Forest Conservation in the Cassation Practice of the Senate
The article discusses the judicial policy of the Criminal Cassation Department of the Ruling Senate regarding the liability for the violation of the Statute on Forest Conservation which was adopted in 1888 and came as a completely new piece of legislation for Russia.
Keywords: Cassation Senate, criminal liability, forest legislation
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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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