Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.A. Ivanov Soil — Land Parcel — Land — Territory The article is devoted to the differentiation of some notions in civil
law, land law and public construction law of Russia such as soil,
categories of lands, land parcel, zone of regulation and territory. The land parcel as a true object of civil law requires its being defined
as 3-dimentional thing (res) with corporeal (physical) contents. It
does not matter what these contents are — soil, water or mineral
resources. Technical description of the land parcel as a 2-dimentional
surface (without filling) is one of the method of its individualisation.
All other notions — categories of lands, zone of regulation,
territory — are the notions of public law. Using these public notions
in the description of civil law objects should be eliminated.
Keywords:
soil, land, land parcel, zone, territory, legal objects
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V.A. Alexeev Subsoil Plot: Special Immovable Thing or Object of Public Property Excluded from Circulation? The article is devoted to the study of the issue of the legal status of
a subsoil plot under the current legislation of Russia and possible
directions for its development. It is noted that the post-Soviet legal
fate of land plots and subsoil plots developed differently, while the
current legal status of subsoil plots is not much different from the
rules of the Soviet period. The main contradiction of the current legal
regulation is the classification of subsoil plots as objects completely
excluded from circulation, with the simultaneous recognition of
them as immovable things on the basis that they meet the criteria
of real estate — they are characterised by an unchanging position
in space and are objects of state property. The issue of formulating
the definition of a subsoil plot as an immovable property is being
considered, and the relationship in this regard between the license
data and the mining allotment act is determined. The criteria for
delimiting a land plot and a subsoil plot, the legal regime of minerals
and underground structures are determined, and the essence of the
right of the owner of a land plot to use the subsoil under this plot
is established. Proposals to supplement civil legislation with norms
defining a subsoil plot and its legal regime are critically analysed,
as a result of which the author comes to the conclusion that the
optimal solution would be to remove subsoil plots from the list of immovable things, considering them as things subject exclusively to
public law regulation (public things). Only the abolition of exclusive
state ownership of subsoil plots would make it necessary to extend
the immovable property regime to them, for which they would need
to be returned to the list found in Art. 130 of the Russian Civil Code.
Keywords:
real estate, subsoil area, objects excluded from circulation, underground structures
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O.A. Zharkova Registration of Rights to Public Land Plots for the Purposes of Development of Mineral Resources: Practical Aspects The author comes to the conclusion that current problems
associated with the registration of rights to a land plot are largely
provoked by conflict of laws rules or gaps in the legislation. We
are talking, first of all, about determining the spatial boundaries of
a land plot that a subsoil user can lease without bidding, as well
as about transferring an agricultural land plot into industrial land. In the latter case, difficulties arise due to the wording of the Law “On
Transfer” regarding references to town-planning documents, as well
as the need to provide a reclamation project. The article highlights
the changing approach of judicial practice to the interpretation of the
term “exclusive right” and the negative consequences of the lack of
support from Rosnedra when registering rights to a land plot.
Keywords:
licensed plot, exclusive right, boundaries of a mining allotment, contents of a license, transfer of a land plot, town-planning documents, reclamation project
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L.E. Bandorin, A.V. Basharin Current Problems of Legal Regulation of Archaeological Zoning The authors investigate the problems of legal regulation of
archaeological zoning. According to the authors, the current
legislation needs comprehensive improvement. It is necessary
to clarify the competence of different levels of public authority,
to optimise the process of archaeology permits. The authors also
demonstrate the need to search for new organisational and legal
mechanisms for the preservation of archaeological cultural heritage.
Keywords:
archaeological cultural heritage, оverlay zones, archaeological exploration, archaeology permit, land use, legal zoning, zoning, сultural heritage
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P.P. Goncharov Сonstruction Permit Concerning Mineral Resources Areas: History, Problems and Prospects of the Conflict-Generating Legal Institute The article reviews the legal institute of administrative approval
of development on mineral resources sites: its history, problems
arising in law enforcement practice, forthcoming changes in
legislation, and makes proposals for further improvement of relevant
legal procedures.
Keywords:
construction permit, mineral deposits areas, valueless subsoil assets acknowledgement, consent of the subsoil user to the construction, mining allotment, national register of mineral reserves, land use, subsoil use, capital construction
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N.M. Shepeleva Legal Ways to Secure Subsoil Users’ Rights to Land: Problems of Modern Practice The article analyses the regulation of the rights of subsoil users
to use land plots, identifies problems arising from the seizure
of land for the use of subsoil, and considers the prospects for
improving legislation designed to ensure the subsoil user’s access
to the corresponding land plot. It is noted that in practice there
are unresolved issues related to the registration of land by subsoil users, compliance with the guarantees of the rights of other persons
when granting or withdrawing land plots for state or municipal
needs, in territorial planning. It is proposed to clarify the content
of the rights of management bodies in the studied area, including
in the implementation of territorial planning, taking into account the
proposed subsoil use.
Keywords:
land plot for subsoil use, subsoil use, land acquisition decision, land user rights guarantees, territorial planning
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A.F. Sharifullina Production Sharing Agreements: A Difficult Fate in Russia The article provides a brief historical analysis of the conclusion
and implementation of production sharing agreements (PSA) in
the Russian Federation, stages of development of legislation in the
field of PSA regulation. The author analyses changes in the legal
regulation of PSA over the past two years, which led to changes in
the composition of subjects and provisions of production sharing
agreements in force in the Russian Federation. Based on the analysis
conducted, conclusions are drawn about possible options for further
development of the PSA institution in the Russian Federation,
including the possibility of replacing PSA with a subsoil use regime
on the basis of a license agreement in accordance with the Law of
the Russian Federation “On Subsoil”.
Keywords:
production sharing agreements, PSA, Subsoil use, subsoil legislation, foreign investment, «Sakhalin-1», «Sakhalin-2», Kharyaga PSA
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Legal Chronicle In the May Chronicle read comments on the adoption of the U.S. law on the confiscation of Russian
assets, the decision of the Supreme Court of the Russian Federation on the issue of compensation
for damage caused to the business reputation of a legal entity as a consequence of the commission
of a crime, planned changes to the legislation on expanding the scope of information collected
on Russian citizens in the unified federal register, on new labour law benefits for spouses of
participants of the Special Military Operation and amendments to the Housing Code in order to
implement the ruling of the Constitutional Court on the regulation of the provision of hotel services
in the block of flats, as well as the rise of Internet censorship.
Keywords:
confiscation of Russian assets, international law, business reputation, crime, personal data, Special Military Operation, labour law, hotel services, Housing Code, censorship
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Theory and practice
S.Yu. Filippova Subcontracts in Civil Law: To the Question of Nature, Types and Structure of Contractual Relationship and the Possibility of Analogy of Law The author critically assesses the expediency of constructing the
concept of so-called related contracts, which should unite into
a single group all subcontracts, i.e. contracts, the conclusion of
which is based on an existing contract with other subjects. The
author shows that there are very few similarities between all the
subcontracts named in the law, while the differences are numerous.
Based on the study of the named subcontracts, the author identifies
the specificity of subcontracts depending on which party they arose,
what right, benefit, work or service is performed under them, what
is the economic purpose of such contracts. The author identifies the
possibility and limits of applying the analogy of law to fill the gaps of
legal regulation in respect of subcontracts.
Keywords:
subcontract, sublease, subconcession, subcommission, subagenting
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A.A. Karpova Procedural Opportunities for Concluding a Restitutional Agreement by the Parties of a Voidable Transaction Regarding “Other Consequences” of Its Being Void The author considers the rules of paragraph 3, Art. 431.1 of the
Civil Code of the Russian Federation in the context of its doctrinal
interpretation and judicial enforcement. At present, neither
in science nor in practice there is a uniform view as to what
procedural mechanism should be used for exercising the rights
of the parties to a voidable transaction to conclude an agreement
on other consequences of its invalidity (restitution agreement).
The author has made an attempt to derive an alternative formula for the procedural implementation of the norm of paragraph 3 of
Art. 431.1 by referring to the background of the emergence of the
norm in civil legislation, the specifics of the restitutionary legal
relationship and the transformational features of the decision
to invalidate a voidable transaction, and has developed specific
proposals. For instance, based on the experience of German civil
procedure, the concept of “partial solutions” is proposed for being
introduced into procedural legislation.
Keywords:
agreement on other consequences of invalidity, voidable transaction, restitutional agreement
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I.A. Voskoboynik Compulsory Arbitration Clauses in International Disciplinary Sports Disputes: Features and Issues Is international arbitration always consensual and based on the
autonomy of will and free expression of the parties? The basic theory
would undoubtedly answer this question affirmatively. However, in
sports arbitration, things are somewhat more complex.
Sports disputes can be broadly divided into two major groups:
(1) commercial (transfers, sponsorship, contractual disputes
with players, etc.) and (2) disciplinary (doping, violation of rules
and statutes, failure to fulfill duties by both athletes and sports
federations).
In this sense, commercial sports disputes do not differ in any way,
and they maintain a consensual element and the autonomy of the
parties’ will. Meanwhile, the disciplinary sports disputes operate
under a “mandatory arbitration model”, implying that without the
consent of the parties, the Court of Arbitration for Sport in Lausanne (CAS) or internal bodies of sports federations, performing mandatory
pre-judicial regulation, will be the only possible forums for resolving
disputes with athletes.
Is it right to permit the use of such a mechanism that clearly
encroaches on personal autonomy? If so, should the coerced party
be treated differently in any way? Why does CAS have exclusive
jurisdiction over the majority of sports disputes, rather than, for
example, the International Court of Arbitration of the International
Chamber of Commerce (ICC)? This article will address all of the
above questions.
Keywords:
arbitration agreement, compulsion, athlete, CAS, International sports federations
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K.N. Shemiakin “Die Verdinglichung obligatorischer Rechte” in Land Acquisition in German Law: The Problem of compatibility with Pandect Systematics The transfer of title to land is the desired goal of the acquisition of
rights to them. The conclusion of a sale and purchase agreement
for a land already creates for the acquirer a hope for the imminent
registration of rights to immovable property. In German law in
the 20th century, the theory “Die Verdinglichung obligatorischer
Rechte” began to be developed, which proposes to qualify
the acquired position of the acquirer as a real one. Meanwhile,
different supporters of this theory make the admissibility of such
qualification dependent on different facts. In this article, the author
considers these theories, correlates them with the general principles
of proprietary rights, and asks the question about the possibilities
of various registration techniques — the registration notice of a
sale and purchase agreement (which existed in domestic law until
2013) or the German priority notice (Vormerkung) — to give a proprietary effect to the claims arising from obligations that served
as a basis for such notices.
Keywords:
sales contract, absolute effect, external effect
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D.D. Dzhumagulov Significance of Signature as a Requisite of Written Form The article is devoted to the study of the significance of signature
as one of the requisites of written form of a transaction. The author
examines the requirement for signature in Russia and foreign legal
orders. On the basis of comparative experience he investigates
the functions of the written form and handwritten signature.
Based on the results of the study of three functions inherent in
the handwritten signature: the function of determining the fact
of the transaction, the function of confirming the seriousness
of intentions and the evidentiary function, the author concludes
that the performance of the transaction in a form that allows to
reliably determine the person who expressed the will and to fix the
written expression of will for a long period of time, fulfils the main
functions of the handwritten signature. In conclusion, the author
proposes to use a method that allows to determine the reliability
of the expression of will, based on the use of a set of actions, as
meeting the requirements of the three functions of a handwritten
signature.
Keywords:
signature, simple written form, textual form, functions of the written form, evidentiary function, confirmation of seriousness of intentions, reliable expression of will
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A.P. Vershinin, E.M. Beier Copyright Law on Photographic Works in the Russian Empire of the 19th–20th Centuries Article analyses emergence of copyright law on photography in Russia
and achievements of its prominent figures in early stages of formation
and evolution of this art in the 19th — early 20th centuries. Copyright on
photographic works in the Russian Empire was first regulated in 1857
by naming photography among other artistic property rights, and only
in 1911 a separate chapter “Copyright for photographic works” was
introduced in Copyright Law. Lack of legislation, as well as complex
procedure for obtaining rights for photo production and registration
of photographic works significantly impaired photographers rights.
Originally photo studios could function only by obtaining privileges “for
crafts, trade and inventions in crafts and arts” as well as permission
“to engage in photographic craft”. De facto copyright on photographic
works started developing right after new photo technology was
introduced, even before it was enshrined in legislation. Authors
emphasise significance of this historic period of Russia for legislative
initiatives in copyright law in general and copyright on photographic
works in particular which was also facilitated by the achievements
of prominent representatives of photographic art, whose works and
technologies serve to preserve cultural heritage.
Keywords:
Copyright, History of copyright, Photographic works, registration, S.M. Prokudin-Gorsky, P.I. Sevast’ianov
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