Chief editor’s column
Interview of the issue
Topic of the issue
V.V. Utkin Creation of a Unified Legal Function in the Company The article describes prerequisites, targets, tasks, stages and tools of
the project for creation of the legal shared services centre (SSC) —
unifying the legal function into a vertically integrated specialised
centre rendering in-house legal services to the company’s business
divisions on the basis of uniform rules and standards and with
reasonable expenses, efficiency and high quality.
Keywords:
shared service centre, business process, legal function efficiency, business process efficiency improvement, legal function KPI, legal service structure, interaction with business units
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M.E. Basova, V.G. Domshenko Organisation of Litigation Work in the Company: Challenges, Knowledge, Technologies The article deals with the main issues of organising claims and
litigation work in large companies. The authors present a view
based on their personal experience on the models of structuring
the claims and litigation function within the legal service — by
territory and using centres of competence. The article provides an
overview of non-standard technological solutions used in the work
of trial lawyers, which can optimise processes, make them cheaper
and faster. The authors highlighted the approaches to assessing
the effectiveness of trial lawyers, analysed the advantages and
disadvantages of using a quantitative criterion for counting
successful cases and its possible alternatives. Special attention is
paid to the management and preservation of knowledge of the legal
function of the company, the importance of methodology and
services.
Keywords:
litigation work, competence center, technology, knowledge retention, KPI
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Yu.E. Donnikov Why Do Lawyers Need to Know about Business Processes? The article gives an understanding of the value and significance
of the process approach in everyday legal work, explains the
content of the category “business processes” and how this
understanding will help lawyers to act more effectively in solving
their tasks.
Keywords:
business processes for lawyers, efficiency of legal work, business processes, optimisation of legal work
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E.V. Regeda Regulation as a Product of Effective Legal Management The article systematises the author’s experience in legal support
of work with local regulations. The author explains the value of
this work for business and for the head of the legal function and
why lawyers must necessarily participate in the coordination
of regulations. The article also provides recommendations on
legal design techniques that help simplify the understanding
of regulations by users, as well as recommendations on the
methodology for updating the regulatory framework and its
cascading in a large holding company.
Keywords:
local regulations, regulatory methodology, legal design
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A.V. Nikiforov Modern Trends in Managing a Traditional Bar Association The creation of traditional bar associations began in 1922 on a
territorial basis and for more than 100 years of history, they have
accumulated considerable experience of work in different socioeconomic
conditions. The management system proposed by the
legislator for these bar associations has not undergone any significant
changes and has now become the management system of regional
bar associations. The author proposes a ‘blue ocean’ strategy for
traditional bar associations, changes in the order of formation of
the collegial executive body, partial decentralisation of management,
overcoming the negative consequences of the influence of the
hierarchical system, transition to a flattened hierarchy with elements
of flat commands.
Keywords:
traditional bar association, flattened hierarchy, ‘function houses’, presidium of competencies, blue ocean strategy
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A.O. Rybalov Peter The Great and Property Registration: Are the Reproaches Fair? According to a widespread point of view, in the Russian law of the
XVII century after the adoption in 1649 of the Soborny Ulozheniye,
there was a strict distinction between the execution of a bill of sale as
a private dispositive act and an entry in the books of the Pomestniy
Prikaz — only the latter led to the transfer of ownership of land. Due
to Peter’s reforms the transfer of ownership again, as before, was
associated with the moment of the bill of sale; the record retained
its significance only for the collection of duties. In the author’s
opinion, accusations against Peter the Great of such reductionism are unfounded. Making a registration record in the Russian law of
that period was not a way of transferring the right.
Keywords:
bill of sale, Pomestniy Prikaz, fiefdom, fief note
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Discussion Board
K.A. Sasov Taxes By Concepts Unjust enrichment of the budget at the expense of the property of
audited taxpayers is a consequence of falsely understood interests
of the civil service, realised with the help of normatively undefined ‘concepts’, introduced into circulation, including with the help of the
highest courts. The author of the article offers a legal way to solve
this problem.
Keywords:
tax, legal nature of tax, taxpayer bad faith, unjustified tax benefit
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N.N. Tarusina Doctrine and Family Law: Reconsideration of Legal Regulation of Family Relationships or “Truncation” of Tradition? The reason for the author’s reflections was one of the relevant
publications devoted to the problems of expanding the scope of
family unions — from classical matrimony to guest marriage,
changing the ownership regime in them depending on belonging to
a small or large family, equalising the obligations between parents
in relation to their children, as well as between parents and their
adult children (in parts of material support). Such an approach,
especially in its concretising provisions, seems unacceptable to us.
As the main antithesis, we have chosen the postulates about the
sovereignty of family law, the peculiarities of family legal relations
(between spouses, parents and children) and the actualisation of
the task of family law to preserve traditional family values. At the
same time, the possibility of subsidiary application of the norms
of civil law to family relations is not denied, however, within the
strict framework of compliance of their content with the essence of
family unions, which excludes the use of methods of formal equality,
compensationality and excessive rationalism to them.
Keywords:
family unions, principles of civil law, a different approach to the family economy, responsibilities of parents and children, family values
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Legal Chronicle The June Chronicle presents comments on the EU decision to confiscate part of the proceeds from
frozen Russian assets, judicial practice on the issues of jury trial competence, registration of share
participation agreements in construction in the register of real estate rights, ECHR decisions on
climate cases, updating the problem of the lack of a clear legal regime for apartments and jubilee
medals
Keywords:
confiscation of Russian assets, EU, USA, registration of real estate rights, unified state register of rights to real estate, equity participation agreement, apartments, residential premises, climate change, ECHR, jubilee medal
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Theory and practice
V.A. Alexeev Territorial Real Estate Complexes and New Legislation on Common Shared Ownership The article analyses the meaning of the new norms of the Russian Civil
Code on common shared ownership of common property of owners of
real estate (buildings, structures and land plots) included in territorial
complexes. It concludes that the norms of § 2 of Chapter 16 of the
Civil Code cannot be considered as a legal basis for the emergence of shared ownership of common property in territorial real estate
complexes. The norms of the Civil Code serve as the basis for the
emergence of common shared ownership only for owners of premises
and parking spaces in buildings and structures. For other real estate
complexes consisting of buildings, structures, land plots, either a
special law is required, which in this case acts as the basis for the
emergence of shared ownership, or a joint expression of the will of all
property owners — a transaction. At the same time, Art. 259.1 of the
Civil Code opens up the possibility of carrying out such transactions,
defines the conditions under which they can be concluded, and the
characteristics of the object of such transactions — the common
property of the owners of immovable things. The author criticises the
conditions provided by law for the emergence of shared ownership of
common property — the definition of the boundaries of the common
territory and the physical or technological connection of the complex’s
objects — and believes that such a condition should be the presence
of common property. The proposal for the development of legislation
is to establish a unified legal regulation of relations in any territorial
real estate complexes, abandoning special laws on certain types of
such complexes.
Keywords:
real estate, territorial real estate complex, common use property, common property, shared ownership of common property, gardening, low-rise residential complex, garage associations, cottage villages
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G.G. Volkov The Role of Exceptio Non Adimpleti Contractus to Seek Specific Performance under a Mutual Obligation The article addresses topical issues of regulation of counterperformance
of obligations, formation of exceptio non adimpleti
contractus in Roman private law in different periods, comparison
of synallagmatic obligations with contractus innominati, burden
of proof to seek specific performance under a mutual obligation,
the formation of doctrinal positions of German scientists
regarding the independence of each of the obligations that
arise from the synallagmatic agreement. The court practice of
applying paragraph 3 of Art. 328 of the Russian Civil Code and
doctrinal positions on the substance of the requirements from
the synallagmatic contract are studied. The author proposes a
possible alternative model for regulating claims for the fulfilment
of counter-obligation (de lege ferenda) and criticises the current
model of the absence of claim before the fulfilment of one’s own
obligation, which follows from a literal constriction reading of
paragraph 3 of Art. 328.
Keywords:
exceptio non adimpleti contractus, synallagmatic obligations, performance under a mutual obligation, Einrede and Einwendung in German law
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A.I. Savelyev Law and Code: Regulating the Quality of Licensed and Custom-Developed Software The paper addresses one of the most controversial issues concerning
the quality of computer programmes: the licensor’s liability for the
quality of licensed software and the developer’s liability for the
quality of custom-developed software. The paper examines the
existing terms used by licensors to limit such liability and their
validity in case law. In addition, the paper focuses in detail on the
mechanism of warranty provisions regarding the quality of customdeveloped
software.
Keywords:
computer program, license agreement, custom software development contract
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V.O. Kalyatin Determination of the Limits of the Author’s Prohibition on the Publication of His Work The law establishes that right to publication belongs to the author of
this work. This means that publication may be performed only with
author’s consent. However, there are numerous limitations of this
right: by the character of the right, by special legal presumptions,
and by special exemptions. As a result, these limitations react
dynamically to the changing interest of the society.
Keywords:
intellectual property, copyright, publication, presumption, copyright exemption
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A.A. Arutyunyan, A.V. Belitskaya Legal Aspect of Expanding the Scope of Control over Foreign Investments in the Russian Federation The current political and economic background promotes a
steady trend to strengthen control over foreign investments in the
Russian Federation, both by expanding the scope of preliminary
control (through specific administrative procedures where the
governmental bodies decide whether an investment transaction
is acceptable or not) and by tightening the consequences of
violating the named procedure by foreign investors. The purpose
of this article is to analyse the transformation of the legal
regulation of foreign investment in connection with the need to
protect national security and national interests of the Russian
Federation.
Keywords:
foreign investments, strategic entities, preliminary approval of transactions with participation of foreign investors, Governmental Commission for Control of Foreign Investments, Federal Antimonopoly Service of Russia
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N.V. Letova Features of Protecting the Rights of Labour Veterans When Assigning Them Some Social Payments The article examines theoretical and practical problems that arise
from the incorrect application of legislation on veterans, incorrect
interpretation of the rules defining measures of social support for
citizens who have a special legal status — Labour Veteran. As a
result of law enforcement, the grounds and procedure for assigning
appropriate payments to a labour veteran, depend not on the status
of such a citizen, but on the territorial principle which determines
support measures at the citizen’s place of residence, which leads
to a violation of his legal rights. In practice, a clear manifestation of
the loss of all social benefits intended for a labour veteran occurs if
he changes his place of residence and the social protection body,
referring to the legal norms on unjust enrichment, claims for the
recovery of amounts paid to him as measures of social support.
The author has proven that social support measures should apply
to all veterans, regardless of their place of residence. This meets the
requirements of the legislation on veterans and the essence of the
state’s social policy.
Keywords:
state, social politics, social support measures, veteran of labour, protection of rights, unjust enrichment, proof, limitation of actions, public and private interests
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Foreign experience
P.A. Kuryndin Models of Forced Execution of Administrative Acts Administrative bodies, when making a decision on a certain issue,
adopt an adinistrative act. However, its enforcement may encounter
problems when an individual is unwilling to voluntarily comply with
its requirements, even under the threat of sanctions. As a general
rule, Russian legislation does not recognise administrative act as
an executive document per se. Hence, the purpose of the study
is the search for models and means of ensuring the execution of
administrative acts in the shortest possible time without significant
costs. In continental law, there are two approaches to determining the
rules to enforce administrative acts execution. The first is the French
approach. It is based on the fact that enforcement is ensured by
measures of responsibility. In case of refusal or evasion by a person,
the administrative body must go to court to obtain an executive
document and subsequently initiate enforcement proceedings.
The German approach recognises administrative acts as the force
power for an executive document. Under these conditions, the
administrative body can avoid the judicial stage. However, as French
judicial practice shows, compulsory execution of an administrative
act is possible without involving the judicial system in this process.
These are cases of urgent or exceptional circumstances (any disaster
or military action). Therefore, Russian doctrine and practice can pay
attention to the French approach. This will ensure the achievement of
legitimate goals without significantly complicating procedures and
will maintain law and order.
Keywords:
administrative act, voluntary and forced execution, exclusivity, urgency, administrative procedure
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A.A. Volos Principles Of Contract Law In Litigation Cases Complicated By Counterparties’ Use Of Digital Technology (Dutch Experience) Increasingly, there are legal disputes that cannot be directly resolved
by the current legislation, as it has not kept pace with the development
of digital technologies. In such a situation, it is useful to turn to foreign
experience. Transposition of new foreign cases to the Russian reality
allows predicting the development of business practice and future
solutions for similar problems. The purpose of the study is to analyse
the decisions of the courts of the Netherlands, in which the principles
of contract law are applied to disputes about digital products. The
provisions that Dutch courts derive from the principles of freedom
of contract and good faith are formulated, and the mechanisms of
protection of the weaker party to the contract are disclosed. On this
basis, conclusions are drawn which, mutatis mutandis, can be applied in
Russia. The thesis is substantiated that in the conditions of digitalisation
the categories of contract law are not abandoned, but there is a need for
their specific interpretation, taking into account all the circumstances
of the case.
Keywords:
principles of contract law, Netherlands, digital law, cryptocurrency, smart contracts, judicial practice, contract, contract law, freedom of contract, good faith
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A.A. Ivanov Comments on the Roundtable Discussion ‘Blockchain in Law: Method, Transaction Form or Attitude?’ The article presents an overview of the roundtable “Blockchain
in Law: Method, Transaction Form or Relationship?” held on
26 January 2024 at the Faculty of Law of the HSE University. The
roundtable participants discussed how the use of blockchain
technology is regulated, whether it should be legally qualified as
an object, transaction and/or relationship, what are the criteria for
the reliability of the register and the specifics of litigation regarding
blockchain using cases.
Keywords:
blockchain, smart contracts, digital object, distributed register
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