Журнал ЗАКОН

The article is devoted to the assessment of measurements used by lawyers to structure the legal system. Based on the results of their analysis, as well as the description of the factors that determine the context of the existence of legal systems at the current stage, the article proposes a three-factor measurement model and describes observations regarding current trends emerging in connection with the development of society, economy, state and technology in recent years. These include, in particular, the development of the interaction method as a specific method for the emerging digital law, the creation of the institution of digital citizenship, including such elements as the right to participation, the right to identity, and the right to exit, and the need for transnational dispute resolution mechanisms in decentralised interaction. The legal sources of Russia, the Kyrgyz Republic and the law of the Eurasian Economic Union are used as an object of analysis in the work.

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Keywords: private law, public law, legal metrics, digital citizenship, right to identity, decentralised regulation, regulatory impact assessment

The article examines the anti-crisis legal regulation in corporate area aimed at the counteraction of the anti-Russian sanctions. The central point is the direct governmental impact on M&A deals, corporate relations, securities market, property. The author sees the significant problem in the lack of a systematic approach to legal regulation, diminution of the ordinary laws and introduction of a large array of the rules by the presidential decrees and departmental acts.

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Keywords: corporate relations, Corporate Law, M&A deals, securities market, government regulation, decrees of the President of the Russian Federation

The article considers the model of transfer of ownerless immovable things into the ownership of public-law entities envisaged by Article 225 of the Civil Code. The special procedure for acquiring the title to ownerless immovable property cannot be regarded as a simplified version of the emergence of ownership rights of public-law entities under the statute of limitations. This procedure is of an exceptional nature, by its legal nature belongs to the powers of forced transfer of property into public ownership on a par with such extraordinary cases as requisition and confiscation. Extension of this procedure to private entities, which turn ownerless linear objects into their ownership, is not justified. Transfer of ownerless linear facilities by energy system operators into their ownership should be regarded as an acquisition of ownership rights to a component part included in an indivisible thing. This will allow to maintain the balance of public interests and the rights of the former owner.

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Keywords: ownerless property, linear object, component part of an indivisible thing, right of ownership

In this article the authors study the problem of finding a balance between private and public interests in the integrated development of the territory on the example of the correlation between the integrated development of the territory at the initiative of the right holders and the integrated development of the territory of non-residential development. The authors analyse the impact of the initiative of right holders on the conclusion of an agreement regarding integrated development of the territory, the legislative possibility to conclude such an agreement regarding a part of the territory, and on the mechanism of implementation of projects of integrated development of the territory. It is also demonstrated that the existing legal regulation of integrated development of the territory can be improved through the introduction of elements of other legal mechanisms of urban development of territories.

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Keywords: integrated development of the territory, agreement on integrated development of the territory, element of the planning structure

Bankruptcy is usually perceived as a mechanism for restoring the interests of creditors, social rehabilitation of debtors, and making liable the persons abusing the form of a legal entity, etc. Within the framework of these goals, the institution of bankruptcy is developing in such a way that also affects the classical institutions of civil law, the principles of the civil process, which significantly affects the general (non-bankrupt) civil turnover. The article explains the theses that the development of concepts and instruments new to private law within bankruptcy cases is caused by public goals of bankruptcy, over and above the protection of creditors’ interests, which forms a kind of «creditors’ equity law», whose approaches deform civil turnover and should be taken into account by participants in non-bankruptcy legal relations when structuring transactions and their execution.

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Keywords: the law of justice, law-making in bankruptcy, public purposes of bankruptcy, bankruptcy procedure reform, transformation of civil of law in bankruptcy

The economic situation in the world and the challenges of our time forced many Russian issuers to refuse future depository programmes and curtail the existing ones, which were issued by the relevant acts of the Bank of Russia, with the exception of certain issuers listed by the Government of the Russian Federation. The peculiarities of the circulation of the financial instruments under consideration and the procedure for exercising rights certified by these depositary receipts affect the approaches of judicial practice being formed. This article examines the competence of the court in disputes arising from the exercise of rights certified by depositary receipts; related to automatic or forced conversion of depositary receipts into shares of Russian issuers; on recovery of damages, etc. Ways are proposed to form judicial practice in terms of determining the competence of the court and applying the relevant rules of procedural law. The current public legal regime and public interests of the state are analysed, as well as the competence of the state arbitrazh court in disputes involving persons in respect of whom restrictive measures have been introduced. Possible approaches to judicial practice are formulated that meet the challenges of modernity in the stock market in order to protect the rights of investors, as well as the tasks of effective legal proceedings.

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Keywords: depositary receipts, financial instruments, competence of the court, jurisdiction of cases, corporate disputes, labour disputes, prorogation agreements, sanctions regime, public order

Russian law has a tradition of narrow view of the institute of representation – in particular, Article 182(1) of the Civil Code proceeds from its understanding only as the entering into transactions by one person on behalf of another. This is largely a reason for the brevity of the rules on representation in the Russian legislation. At the same time, paradoxically, the rules on representation are widely applied by analogy in various relations and institutions. This article considers the general features of relations to which the rules on representation are applied by analogy using examples from private and public law. In addition, it considers examples from public law, where the rules on representation are not yet applied, but potentially can be. Based on the study of such examples the conclusion is made that the reasons for the expansion of the rules on representation lie in the structural and economic features of these relations, which are similar in the relations of representation.

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Keywords: representation, agency problem, fiduciary, analogy, management of another’s property

The article analyses a number of notorious decisions of the Ruling Senate, in which it interpreted some difficult pieces of legislation concerning disputes between the Treasury and its contractors. It gives an account of the legal discussions about these decisions and practical results thereof, shows their influence on legislation and explains which lessons for the present and future can be learnt from this story.

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Keywords: Ruling Senate, judicial interpretation, judicial protection, public procurement

The article analyses the main features of modern arbitration of investment disputes between investors and investmentreceiving states and argues that modern investment arbitration is strikingly different from the model that states had in mind when it was created. Investment arbitration has evolved from a private model of dispute resolution to a mechanism that is fully regulated by public international law due to the fact that investment arbitration is created on the basis of an international agreement and considers disputes concerning the obligations of States arising not from a contract, but from international treaties. The current state of investment arbitration requires a rethinking of the domestic doctrine regarding investment disputes and investment arbitrations in favour of recognising their public-law nature and its being at the intersection of public international law and constitutional law.

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Keywords: investment arbitration, international treaties, constitutional justice, intentions of states

In this article, the author reveals the modern meaning of the division of law into private and public and proposes to recognise this division as a key constitutional principle.

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Keywords: Constitution, private and public law, branches of law, constitutional law, principles of law

In the December Legal Chronicle we present comments on changes to the law on registration of real estate rights, inclusion of the concept of entrepreneurial activity in the Criminal Procedure Code, and changes to tax legislation to control transfer pricing.

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Keywords: real estate registration, openness of the register of rights, principle of register closure, entrepreneurial activity, criminal code, transfer pricing, withholding tax, intra-group transactions

According to the Concept of State Family Policy approved in the Russian Federation, one of the significant measures that influenced the increase in the birth rate in the country was the provision of maternity (family) capital for families with children at the expense of the state budget. However, the application of the provisions established by special legislation, especially in terms of allocating a share in the acquired residential premises to minor children, caused problems of their practical implementation, arising not only during life, but also after the death of parents. The purpose of writing the article was to identify typical cases of participation of heirs in disputes arising in connection with the inheritance of residential premises acquired in whole or in part at the expense of maternal (family) capital. Special attention is paid to the problem of inheritance of residential premises after the death of a person who did not fulfil the obligation to allocate a share to minor children during his lifetime. At present, both in science and in the law enforcement sphere, a judgement has been formed on the need to refuse heirs to issue a certificate of inheritance in part of the residential premises acquired at the expense of the maternal (family) capital, before determining the shares of both heirs and the deceased parent in court. This approach is based on a misunderstanding of the legal nature of the obligation to allocate shares to minor children. The author makes a conclusion about the termination of an unfulfilled public duty by the death of a person and the impossibility of applying the norms of the law of obligations.

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Keywords: heirs, maternal (family) capital, obligation, obligation, shared ownership

Artificial intelligence (AI) as a part of the big process of digitalisation, is gradually displacing humans from different spheres of life to partially take its place in the future. In some cases, AI-controlled systems can make decisions in such a way that it is difficult or almost impossible to distinguish the results of their actions from similar human actions. AI decisions can thus have a significant impact on the well-being and status of an individual and have legally significant consequences. This article examines the main ethical and legal issues, potential risks associated with the development of AI-controlled systems and analyses various legal concepts that can serve as a guideline for developing an optimal legal regulation model. The author concludes that visibility should be the key element in the interaction between AI-controlled systems and humans.

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Keywords: artificial intelligence (AI), deepfake, generative AI, labelling

The article considers the concept of real estate through the prism of public law institutions, analyses whether the criteria for distinguishing between capital and non-capital structures are identical to the criteria for division into movable property and real estate, and whether they can be used in disputes about whether a particular structure is a real estate. Foreign experience of qualification of a “strong connection with the land” is studied, the most interesting of which seems to be the provisions of the U.S. legislation on manufactured homes. The article considers the features that allow to identify a strong connection with the land and impossibility of moving as factors affecting the qualification of a structure as a capital one, and the thing as immovable, noted in court cases. Among them there are the presence of the foundation and the nature of the connection with it, significant excavation works, prefabrication and dismantling of the structure, the presence of engineering networks and communications.

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Keywords: real estate, the object of capital construction, non-capital construction, manufactured homes, demountable structures

An analysis of the regional laws regulating the status of constitutional councils shows that they are the heirs of the constitutional courts of the republics in terms of the categories of cases under consideration. The article attempts to identify the objective need for the creation of constitutional (statutory) councils in order to assess the prospects for the development of this institution as an element in the system of protection of regional constitutions (or charters). The author comes to the conclusion that the institution of constitutional councils can be developed if it becomes part of the mechanism for ensuring constitutional legality.

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Keywords: constitutional (charter) council, constitutional (charter) court, protection of the constitution, constitutional legality regime

In this article the author intends to develop and justify the uniform approach to utilisation and application of the provisions of the conventions on avoidance of double taxation which specify the regime of taxation of particular types of income and capital (property). Stemming from the factors giving rise to double (multiple) taxation, the author examines the mechanisms of elimination of double taxation contained therein and the legal technicalities employed to lay down such mechanisms in the tax treaties. Furthermore, the author elaborates on his vision regarding the possible commonly shared algorithm that could eliminate or minimise the errors in utilisation and application of the distributive rules of the double taxation treaties taking into account peculiarities of terminology and wording of the treaties as well as the systematic approach of treaty drafters to the formulation of distributive rules (rules establishing the specifics of the tax treatment of certain types of income and capital) contained therein.

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Keywords: double taxation treaties, distributive rules, avoidance of double taxation

Extra-legal factors are studied by the sociology of law, which has already accumulated sufficient information on how these factors operate. At the same time, these variables also have a significant impact on legal practice. In the field of jurisprudence, however, they remain no more than a specific feature of certain legal doctrines. The article describes extra-legal factors as they are currently studied by sociology and legal science, also giving the author’s definition of this phenomenon. In particular, it is proposed that extra-legal factors should include not only those factors that should not influence, but influence legal practice, but also those factors about the influence of which the legislator or legal doctrine mentions, but these factors are not legal norms (for example, “good faith”). The study of extra-legal factors will allow to apply the obtained knowledge in the following areas: automation of legal decision-making; reduction of “noise” in legal decision-making; evaluation of the efficiency of the judge’s activity; measurement of legal consciousness of subjects of legal relations.

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Keywords: extra-legal factor, sociology of law, automation of legal decisions, prediction of judicial decisions, noise in decisions, efficiency of judge’s activity