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Июнь 2024



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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