Журнал ЗАКОН

The article considers the gradual transformation of antitrust regulation under the influence of sanctions restrictions and their recent economic consequences. The author concludes that the existing institutions of antitrust regulation are being adapted to new circumstances without fundamental changes. In the process of law enforcement a set of advisory techniques, mandatory prescriptions and unilateral voluntary self-restrictions is formed. This expands the regulatory impact of the norms of the Law on Protection of Competition and determines the limits of freedom of entrepreneurial activity at present.

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Keywords: antitrust law, competition, dominant position, abuse, sanctions, digital markets

On September 1, 2023, amendments to the Federal Law “On Protection of Competition”, named by antimonopoly community the fifth antimonopoly package, came into force. Amendments are long-awaited. The legislative process caused discussions and took almost six years, while the draft bill was repeatedly subjected to numerous adjustments and amendments. As a result, the adopted version of the fifth antimonopoly package has become a compromise between the regulator and the business community. The article contains detail analysis of the main newly introduced legal rules of that law, analysing new categories and institutions that have been legally enshrined: digital platform, network effect, new criteria for dominance of digital platform owners, new thresholds for antimonopoly control over merger and acquisitions and many others. The newly introduced legal rules are compared with available analogues in the legislation of foreign jurisdictions. The authors separately analyse the strengths and weaknesses of the amendments, offer options for interpreting legal norms that lend themselves to dual interpretation, and assess the risks that business entities may face.

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Keywords: the fifth antimonopoly package, antitrust regulation, competition law, digital platforms, aggregator websites, marketplaces, digital companies, the value of a transaction, dominant position, digital markets

The author proves that the competition law gives legal significance not only to traditional facts-actions (‘points’), but also to factsprocesses, states and circumstances (‘segments’), in particular — ordinary economic (legal) and, on the contrary, anti-competitive (illegal) activities. In this latter case, the facts-actions have competitive legal significance not by themselves, but only in the context of that activity, the components of which they are inextricably linked. In this case, the factors linking separate actions in the activity, is a single intention of the business entity-competitor, and their orientation to achieve one single anti-competitive goal. The subject of prevention, establishment, proof, suppression and punishment should be exactly this kind of activity, and not separate facts-actions which constitute it.

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Keywords: competition, competition law, Law on Competition Protection, monopolistic activity, abuse of dominant position, legal facts, actions as legal facts, activity, facts-processes, facts-states, factscircumstances

The difficult foreign policy environment in which the Russian economy has to function, accompanied by a significant reduction in the number of market participants and rising costs of logistics chains, significantly increase the risks of abuse of dominant position on various markets, primarily through the application of unfair prices. The key procedural element of cases on establishment of monopoly prices is the application of the comparable markets method, which is the most objective measure of the reasonableness and market character of the applied prices. This article provides the most significant patterns of application by antimonopoly authorities of the comparable markets method and specific comparability criteria, summarises current trends and regulatory problems, and assesses the regulator’s current approaches in specific cases from the point of view of their legality, consistency and reasonableness. Among other things, the article describes possible approaches to assessing the legality of using quantitative comparability parameters (number of sellers and buyers, manufactured products, production facilities), geographical features of the market territory being tested, differences in legislative regulation of markets in Russia and abroad, as well as between Russian regions.

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Keywords: competition, monopolistic activity, monopolistic price, unfair price, comparable markets method, incomparability, quantitative criteria of comparability, conditions of goods circulation, barriers to market entry

The article analyses an unconventional notion of the prevailing bargaining power. An example of the use of this concept in Russia is the restrictions for retail chains in the trade Law. The article analyses the worldwide experience of using similar provisions, including in the UK, the EU, France, Germany, Italy, Japan and South Korea. Taking into account the ambiguous international experience of applying the concept of the prevailing bargaining power, the author concludes that there is no need to adapt it into the Russian legislation.

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Keywords: prevailing bargaining power, dominant position, antitrust law

The authors conclude that antimonopoly authorities more often apply the cost method of proving monopoly high prices — the method of comparable markets is rarely used due to the difficulty of meeting the criteria. The evidence of overpricing will be confirmed by the presence of errors in the companies’ calculations, excess of the profit margin over the industry average profitability indicator, inconsistency of the price with changes in the conditions of product turnover on the market. Companies have the right to justify price changes by the presence of factors in the market related to changes in supply and demand, but such reasoning must be verifiable.

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Keywords: monopolistically high price, rate of return, cost method, supply and demand factors, abuse of dominant position

The authors give a broad overview of the rapidly changing state antimonopoly policy in recent years in connection with the message of the President of Russia to the Federal Assembly and reflect on the prospects for the introduction of the risk-based approach and the principle of economic evidence in both public administration and business administration. The role of this principle in creating a balanced risk-oriented approach is revealed.

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Keywords: risk-management, forecasting, evidence-based, antitrust regulation

The paper analyses the policy aimed at simplifying and unifying procurement procedures in the public procurement segment. The author reflects on whether the reduction of selection methods and criteria really increases transparency in the procurement system. Does transparency, in this sense, contribute to the achievement of the goals assigned to it to combat the restriction of competition and increase budget efficiency? The paper shows that measures to unify procedures lead to contradictory effects in the context of influencing the level of transparency in the public procurement system and achieving the ultimate goals of the policy.

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Keywords: transparency, anti-corruption, anti-cartel policy, public procurement

The board of directors, as a strategic management body, exercising general management of the corporation’s activities and monitoring the activities of executive bodies, is responsible for its dishonest and unreasonable actions, including if its actions or inactions did not correspond to the usual conditions of civil turnover or normal business risk. Therefore, it is not surprising that the legislation gives the Board of Directors of a public joint stock company the authority to create an effective risk management system. How do his powers and responsibilities in this area relate to the powers and responsibilities of the executive bodies of the company? This issue is especially important due to the active encouragement of entrepreneurs by the state to apply a risk-based approach in their activities.

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Keywords: board of directors, risk management, internal control, compliance, antitrust compliance, antitrust risks, corporate governance, public joint stock company

The article is devoted to the legal conditions for the introduction of a progressive scale of personal income tax rates. There is no strictly scientific justification of the progressive scale. Disputes about progression are ideological in nature, and the rates are always arbitrary. However, it is possible to clearly define what tools and approaches applied in the legal construction of progression or in conjunction with progression do not comply with the general constitutional and legal principles of taxation and, therefore, are inadmissible. The article reveals the issues of equalised taxation, non-taxable minimum, family taxation, inflation tax, etc.

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Keywords: income tax, progressive taxation, inflation tax, family taxation, non-taxable minimum, social deductions, standard deduction, equalised taxation, redistribution of income

In the July Chronicle, experts comment on new amendments to the bankruptcy law, reviews of the Supreme Court’s practice on family law relations and protection of copyright and related rights on the Internet, decisions of the Supreme and Constitutional Courts on the procedure of tax payment in the process of debtor’s bankruptcy, new approaches of court practice in relation to the liability of persons controlling the debtor, the Supreme Court’s legislative initiative to include defamation in public-private cases, as well as the opinion of the International Tribunal for the Law of the Sea, in which it formulated several new conclusions on the problems of liability for climate change.

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Keywords: bankruptcy, bankruptcy law, person in control of the debtor, subsidiary liability, creditor’s damages, corporate damages, family disputes, child protection, matrimonial property, climate change, Law of the Sea Convention

In most countries of continental Europe there is a right to a compulsory share in inheritance in favour of children and spouse of the testator, which is not conditioned by the neediness of heirs and which limits the ability of this testator to dispose of his property in case of death. This institution ensures equality of heirs and indirectly preserves family peace. These ethical considerations have led to the recognition of the right to a compulsory share as constitutionally protected in Germany, as well as to the struggle for its protection in cross-border relations on the part of the French legislator. The defenders of the compulsory share institution are opposed by international trends coming from the Anglo-Saxon world, where the compulsory share institution does not exist: the pan-European Succession Regulation applicable to inheritances opened after 17 August 2015 inheritances, contains vague rules on the status of the compulsory share as a value protected by public policy, and the European Court of Human Rights by two decisions of 15 February 2024 refused the heirs of the French composers M. Jarre and M. Colombier in defence of their French statutory right to the compulsory share against the absolute freedom of will in Anglo-American law.

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Keywords: compulsory share in inheritance, private international law, international public policy, European Union, Succession Regulation, Germany, France, England

The article features complex research of the latent defamation as a particular phenomenon understudied in theory. Author suggests for this category the following definition: disguised by various means, lacking the direct verbal expression dissemination of the false damaging information. Classification of the latent defamation on the criterion of the form of its display is developed. Author represents the detailed review of such basic latent defamation forms as defamation through text (which includes literary work as well as rhetorical questions), symbols (emoji, stickers, likes, emoticons), other images (photomontage, sculptures, pictorial caricatures, paintings). It is established that currently legal controversies with regard to cases on latent defamation are comparatively small numbered. Nevertheless the trend for its increasing is forecasted which is driven by continuing digitalisation process and widening the range of new technologies applicability for illicit purposes (among other things different instruments for the virtual communication, photo, video and audio content fabrication).

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Keywords: non-material values, defamation, literary work, image, emoji

The article concerns tax monitoring as the newest form of tax control. The author analyses the legal status of motivated opinion, the procedure for appealing and implementing it, and notes the identified problems as regards regulation of tax monitoring that cause difficulties in law enforcement practice. Proposals have been formulated to amend the tax legislation in order to resolve these problems and improve the regulation of tax monitoring.

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Keywords: tax monitoring, motivated opinion of the tax authority, disagreements, digitalisation of tax control

The examination commissions of the subjects of the Russian Federation for the admission of the qualification exam for the position of judge include representatives of various legal professions. Based on the data collected from the websites of the examination commissions, the typical membership of these commissions was identified. On average, they consist of 12 lawyers, including ten judges (five from courts of general jurisdiction and five from the arbitrazh court) and two university teachers of legal disciplines. As representatives of the All-Russian association of lawyers, almost every second examination committee is attended exclusively by representatives of the Association of Lawyers of Russia. Membership in this association, as well as holding teaching positions, allow lawyers, notaries, civil servants, lawyers of private companies to join the examination commissions. The conducted research shows that the examination boards, being a weak filter to the judicial community, serve mainly as a meeting and communication space for representatives of various legal professions, divided departmental and organisational.

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Keywords: legal profession, sociology of profession, qualification exam, self-regulation of judiciary, professional communication

The principle of self-determination has occupied a central place in the international legal agenda of the 20th century, decisively influencing the restructuring of geopolitical space and the formation of the contemporary global order. Post-decolonisation examples of self-determination, characterised by ad hoc situations, have thus confronted the competing principle of the territorial integrity of states, enhancing the relevance of the problem concerning the conditions and forms in which peoples may exercise their right to self-determination. Alongside the bases for self-determination through secession, the form and procedure of its implementation, as well as the consequences associated with the decision on self-determination, are of significant importance. Legal doctrine lacks a clear understanding of the forms in which the right to self-determination may be realised. In practice, the procedures for implementing secession are also heterogeneous, and it does not always occur as a result of the direct expression of will by the self-determining people. However, a referendum can be regarded as one of the most authoritative confirmations of the act of self-determination due to its inherent democratic principles, which directly embody the will of the people determining their own destiny, and with which the international community must comply based on established principles. In this context, the referendums conducted in September 2022 in the Donetsk and Luhansk People’s Republics, as well as in the Kherson and Zaporozhye regions, described by the authors in the article, present a particular academic interest.

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Keywords: right to self-determination, referendum, territorial integrity, democratic procedures, will of the people