Chief editor’s column
Interview of the issue
Topic of the issue
D.V. Bogatyrev, A.V. Endoltceva The Mechanism of Overcoming the Abuse of Law in Pre-Trial Criminal Proceedings Abuse of law is a complex legal phenomenon, quite heterogeneous
and diverse in its manifestations. There is no consensus in science
about its legal nature and essence, but scholars rightly say that
such an act must be prevented and suppressed. The absence in the
Russian Criminal Procedure Act of a prohibition of abuse of rights by
participants in criminal proceedings, and hence of means to prevent
and suppress such abuse, makes it very difficult to counter it, which
creates the risk of prolonging the length of time in a criminal case,
reducing the quality of its investigation and unduly restricting the
rights and freedoms of participants in criminal proceedings.
Authors offer their own vision of the legal nature of abuse of
rights in criminal proceedings, cite typical examples of it, build
a mechanism for overcoming abuse of rights in pre-trial criminal
proceedings, naming its necessary elements and content, indicating
the reasons for its creation. It is concluded that a legal basis for
the establishment of such a mechanism in criminal proceedings
is necessary. It is summarised that the introduction into the Code
of Criminal Procedure of a prohibition against the abuse of rights
parties to criminal proceedings will make it possible to counteract
its manifestations by means of general and private prevention and
the suppression of such an act.
Keywords:
prohibition of abuse of right, prevention of abuse of right, suppression of abuse of right, measures of responsibility for abuse of right
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O.V. Zheleva Abuse of Right at the Pre-Trial Stages of the Criminal Proceedings: Its Types and Ways to Overcome The article analyses the concept and signs of abuse of law in criminal
proceedings. Among such signs the author names: the presence of a
person with a specific subjective right; the implementation of law in
contradiction with its purpose, or the purpose of criminal proceedings
in general; inconsistency of a person’s behaviour with the criteria
of good faith and reasonableness; causing harm to the interests of
other participants in criminal proceedings, society and the state.
Analysing the signs of abuse of right, the article indicates some types
of abuse of right by private individuals or government entities, and
makes a distinction between abuse of subjective right and abuse of
discretionary powers. In conclusion, the author proposes to provide
a legislative mechanism for overcoming abusive behaviour in criminal
proceedings in the form of applying specific response measures to
individuals and officials.
Keywords:
abuse of right, abuse of discretionary powers, types of abuse of right, response measures
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O.A. Chabukiani Abuse of Procedural Rights and Implementation of Discretionary Rights by Authorities in Pre-Trial Proceedings: Concept and Relationship In the course of pre-trial proceedings, government entities are
authorised to carry out procedural actions and make decisions, most
of which are determined as a result of an assessment of the sufficiency
of the grounds and conditions for this, based on internal conviction.
Sometimes the discretionary rights of such participants are difficult
to assess from the point of view of the validity and sufficiency of
the information (evidence) available in the audit materials or the
criminal case. This leads to appeals against the actions and decisions
of officials as having been carried out with abuse of procedural
authority. But can this right be abused? To answer this question, it
is necessary to clarify the essence of abuse of procedural rights and
determine their relationship with discretionary ones. In the course
of the study, by analysing the available approaches and practices of
applying the norms of the Criminal Procedure Code, it is concluded
that an intentional dishonest act under the guise of the exercise of one’s
procedural rights by a government entity, excluding the subsequent
proper exercise by other participants in criminal proceedings of their
procedural rights or their procedural duties within a reasonable time,
should entail procedural, disciplinary or criminal liability depending on
the consequences and be regarded as abuse. Abuses of the right by the
prosecutor and the person in charge of the criminal case to timely grant
the status of a participant, to charge, to cancel procedural decisions,
during investigative actions, and when choosing measures of criminal
procedural coercion have been identified and considered in relation to
discrete powers. Some ways to overcome such abuses are presented.
Keywords:
abuse of procedural law, discretionary rights; pre-trial proceedings, government entities
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S.A. Nasonov Abuse of Rights by Professional Participants in Jury Trial The article examines the forms of abuse of procedural rights
by professional participants in court proceedings in a jury trial,
factors that determined their emergence and ways to overcome
this phenomenon in legislative regulation and judicial practice. The
author follows the position that abuse of rights in a jury trial consists
of the actions (inactions) of participants of the proceedings, which,
according to external signs, do not go beyond the limits of these
rights (powers), but contradict the purpose for which they were
provided to the participant of the proceedings and objectively do not
correspond the purpose of legal proceedings and its principles. As a
form of abuse of right on the part of the presiding judge, the article
examines his refusal to wait for a juror who has not appeared, if this
entails the annulment of the jury’s verdict and (or) the dissolution
of the panel. It is argued that a typical abuse of law for the public
prosecutor is the extra-procedural collection of information about
jurors, which, in the event of a not guilty verdict, is used to justify the illegality of the composition of the jury panel that examined
the criminal case. Examples of abuse of procedural rights by a
defender are considered, including his use of the right to object to
the presiding judge final instructions as an additional speech to the
jury. Ways to minimise these forms of abuse of rights are proposed.
Keywords:
abuse of procedural rights, jury trial, juror, annulment of the verdict, dismissal of the jury panel, final instruction for jury
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O.I. Darovskikh Exercise by the Accused of the Right to Defence and Abuse of These Rights at the Stage of Preliminary Investigation The article examines possible options for abuses committed by the
accused at the stage of preliminary investigation when exercising
the right to defence, and substantiates the means to counter these
abuses. The author systematises the types of possible abuses,
highlights several aspects of activity that limit the abuses of a given
participant in criminal legal relations or create obstacles, which
include doctrinal, regulatory, and law enforcement, justifying the
advisability of taking measures taken to eliminate abuses of law in
criminal proceedings.
Keywords:
rights, accused, defence, abuse of rights, criminal proceedings, types of abuse
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Discussion Board
A.A. Ivanov The Right to the Genome and Questions of Civil Studies A number of situations that have arisen in practice in medicine
and biology, such as genome editing, individuals ignoring their
genetic defects when conceiving children, etc., have acutely raised the question of the formation of the right to the genome as a civil
(private) right. Understanding the right to the genome as a natural
or constitutional right does not allow extending civil law regulation
to it, in particular rules on contracts and liability. At the same time,
the genome can be used as a natural way of individualisation of
persons along with their name and place of residence. Recognition
of the civil right to the genome implies protection of the inviolability
of the genome as a certain combination of genes, on the one hand,
and the possibility of its modification, on the other. It is advisable to
regulate this right in the section on natural persons of the Civil Code
of the Russian Federation.
Keywords:
gene, genome, natural (physical) person, personal individualisation, civil right to the genomе
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D.A. Zhmulina Compulsory Liability Insurance for Moral Damage The article analyses the legal regulation of civil liability insurance
for moral damage. The author aims to find out whether the current
insurance legislation is necessary and sufficient to introduce
compulsory insurance of such liability. It is proved that the
insurance of civil liability for moral damage within the meaning
of the current versions of paragraph 1 of Article 931 of the Civil
Code and paragraph 6 of Article 4 of the Law on the Organisation
of Insurance business is lawful. The lack of uniform criteria or
methods for calculating the amount of compensation for moral
damage makes it difficult to assess the insured interest and is
the reason for the rarity of this type of insurance in our country.
The author comes to the conclusion that the existing prohibition
against the introduction of compulsory insurance of civil
liability for moral damage is an unjustified excessive regulation.
A proposal is formulated to include in the Concept of Development
of the provisions of Part Two of the Russian Civil Code on the
insurance contract a provision on amending paragraph 1 of Article
935 of the Code in terms of expanding the list of types of civil
liability in respect of which the law may establish the obligation to
insure the corresponding risk.
Keywords:
insurance, liability insurance, compulsory insurance, moral damage
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Legal Chronicle The April Legal Chronicle describes the main events of March 2024 in the field of foreign sanctions
against Russia, criticises the practice of Russian courts on the issues of liability of banks and
clients when making money transfers under sanctions, analyses the problems of issue preclusion
of a judicial act in a criminal case for civil proceedings in the light of the recently adopted
definition of the Supreme Court of the Russian Federation, and considers the consequences
of the Constitutional Court’s recognition of the provisions of Article 221 of the Tax Code as
unconstitutional.
Keywords:
sanctions, force majeure, bank transfer, liability for fulfilment of obligations, issue preclusion, termination of criminal case, income tax, registration as an entrepreneur, tax deductions
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Press Release
Theory and practice
N.Yu. Rasskazova Joint Spousal Will and Rights Based on It: Enforcement Difficulties The article is devoted to the nature of a joint will of spouses, its
content, peculiarities of its validity and difficulties of interpretation
of norms on inheritance rights in the presence of a joint will. The
article provides theoretical justification of the possibility to increase
the volume of the spouse’s inheritance on the basis of a joint will
and criticism of the idea that it is possible to receive property on the
basis of a will, but not by inheritance. New possibilities of disposition of property in case of death, provided by a joint will of spouses, are
considered in detail, variants of joint wills are analysed.
Keywords:
joint will of spouses, will, refusal (renunciation) of property, inheritance, inheritance mass, interpretation of norms on inheritance
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K.Yu. Molodyko Ideology of Qualification (Accreditation) of Investors in the Stock Market Accreditation of investors is an unusual institution of civil and
administrative law, since in fact one counterparty under a civil
contract must make a quasi-administrative decision on the
admission of another counterparty to civil transactions with itself
and third parties, albeit based on the criteria provided by law. We
discuss the first results of the investor accreditation reform that
took place in Russia in 2020–2021. We have also summarised
approaches to investor accreditation that have been developed in a
number of foreign jurisdictions, with special attention paid to current
Russian and American regulatory approaches and debates on these
issues. We propose, taking into account a reasonable transition
period, to completely switch to the qualification of investors only on
the basis of an assessment of their real knowledge based on tests
and professional certificates, as well as on paid personal income tax
from stock transactions, abandoning all other qualification criteria.
This will require, among other things, complete re-accreditation
of all Russian retail investors. Testing should be carried out by
organisations independent from brokers.
Keywords:
behavioural regulation, investor accreditation, retail investor, testing, stock market regulation, avoiding of conflict of interest
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S.D. Pimenova Recognition and Enforcement of Investor-State Arbitration Awards on the Example of the Case Tatneft v. Ukraine The paper is dedicated to the controversial issue of recognition and
enforcement of investment arbitration awards in the Russian courts,
in particular, the necessity for a foreign investor after winning the
case to overcome the defendant’s objections in national courts
regarding the immunity of State assets from execution. The article
analyses in detail the litigation in the Tatneft v. Ukraine case — as of
today the only investment arbitration award which was recognised
in Russia. The author examines the arguments of the Russian
courts regarding the issues of jurisdictional immunity of the states
in litigation on recognition and enforcement of arbitration awards as well as regarding the immunity of diplomatic property and state
assets from execution.
Keywords:
investment arbitration, jurisdictional immunities, enforcement of arbitral awards
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Foreign experience
S.G. Konovalov The Newest Criminal Procedure Code of Kyrgyzstan: An Act of Counter-Reform or Another Symptom of Legislative Inflation? The article is devoted to the newest Code of Criminal Procedure
of Kyrgyzstan, adopted and entered into force in 2021. This act is
particularly interesting because the code that preceded it remained
in force for less than three years, which can be considered a
kind of an anti-record. In this regard the new Code of Criminal
Procedure represents the apotheosis of legislative inflation, which
to a greater or lesser extent has gripped the entire post-Soviet
space, including Russia. Given the permanent nature of domestic
criminal procedural reforms, the experience of Kyrgyzstan may
become a sobering example for us. In order to shed light on the
general context, prerequisites and probable goals of the designated
codification, the author of the article examines the chronology of
the Kyrgyz Criminal Procedure Code adoption, analyses its most
important novelties and identifies significant patterns of criminal
procedure development in Kyrgyzstan, which in many respects are
also typical for other post-Soviet countries.
Keywords:
criminal procedure, code, Kyrgyzstan, legislative inflation
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A.O. Simonov Approaches to Taxation of Transactions with Digital Financial Assets in Foreign Jurisdictions The article analyses current approaches and mechanisms for
taxation of transactions with crypto-assets in foreign jurisdictions,
which are advanced in terms of the prevalence of crypto-assets
among the population. The choice of the research object is due to
the increasing role of such assets in Russia and around the world,
as well as the need to develop current regulation in this area in
Russia and analyse the possibility of adapting the most advanced
and successful experience in Russian realities.
The article presents an analysis of the current regulation in the field
of taxation of transactions with crypto assets in foreign jurisdictions,
reflects legislative gaps and problems faced by individuals and legal
entities, and also sets out proposals as to the possibility of adapting
foreign approaches in Russia.
It was revealed that currently none of the analysed jurisdictions has
an effective mechanism for taxation of transactions with cryptoassets,
however, each of these jurisdictions has a unified approach
formulated at the state level to determine the status of cryptoassets
as an object of civil turnover and taxation, which allows
market participants to develop this sector of the economy in the
jurisdiction.
Keywords:
tax security, crypto-assets, digital financial assets, personal income tax, corporate income tax, value added tax, sales tax
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M.I. Penzin Frustration of Contract Resulting from Hardship of Performance The author considers the operation of the doctrine of frustration in
English law and the limitations of its application. The paper analyses the legal foundations on which the English courts rely in applying
the doctrine of frustration and concludes that the best foundation
for its application is the construction of the particular contract,
which determines the content of the parties’ obligations. The
paper considers the effect of the doctrine on commercial contracts
concluded under the Sale of Goods Act 1979. The author compares
the English frustration and the Russian institution enshrined in
article 451 of the Civil Code of the Russian Federation.
Keywords:
contract, the doctrine of frustration, hardship, implied terms, goods, contract termination, CIF, Sale of Goods Act 1979
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V.S. Zorin Genesis, Formation and Development of Fiduciary Security Transactions in Spanish Law This article analyses the genesis of fiduciary security transactions in
ancient Spanish law and their impact on the economic activities of
that time. It highlights the influence of German doctrines on fiduciary
transactions and the theory of double effect on the Spanish legal
system. Furthermore, it describes the evolution of views among
Spanish civil law scholars regarding the essence of such security
constructs.
Keywords:
fiducia, fiduciary transactions, methods of securing the performance of obligations, security transfer of subjective civil rights
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