Журнал ЗАКОН

The article analyses the policy documents and regulations on the basis of which the introduction of the digital ruble in Russia is carried out. The author addresses controversial issues related both to the ambiguity of the interpretation of the digital currency in relation to the digital ruble, and to the question of the legality of its attribution to non-cash funds. The article pays independent attention to negative and positive issues related to the prospects of the introduction of the digital ruble, analyses the risks of its implementation and suggests possible ways to minimise them.

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Keywords: digital ruble, currency, legal means of payment, non-cash funds, Bank of Russia, credit institutions, banks, banking risk

The article expresses the author’s opinion on the legal nature of the digital ruble account agreement, which appeared in legislation since July last year. The author substantiates the point of view that the digital ruble account agreement has two varieties, the legal nature of which is different. Firstly, a digital ruble account agreement concluded by the Bank of Russia with the user of the digital ruble platform, which is a type of bank account agreement. Secondly, a digital ruble account agreement concluded by the Bank of Russia with a participant in the digital ruble platform, which is a conglomerated mixed agreement. It includes two different contract types with a complete set of elements. The components of such a conglomerated agreement include, firstly, a bank account agreement (digital ruble account agreement), and, secondly, an agency agreement. Both of these agreements are interconnected by a single economic goal — to provide users with access to the digital ruble platform in order to carry out settlement transactions with digital rubles. Due to the lack of a legal definition of a digital ruble account agreement with a platform participant, the author has formulated her own definition of such agreement.

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Keywords: digital ruble, digital ruble account agreement, digital ruble platform, bank account agreement, mixed agreement, digital ruble platform participant, digital ruble platform user, digital ruble platform operator, Bank of Russia, digital technologies

The article analyses various views on the nature of monetary means, including the position of the Constitutional Court. The article emphasises the fallacy of identifying monetary means with obligatory rights (claims) in general and rights under the bank account agreement in particular. It is proposed to consider monetary means as an independent object of rights regarding which absolute legal relations are formed.

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Keywords: monetary means, obligatory rights (claims), bank account agreement, set-off of rights under the account, payment function of monetary means

The article is devoted to disclosing the idea of the institute of nominal account, analysing the normative regulation of this instrument, studying the peculiarities of legal relations accompanying the opening and maintenance of nominal account. In particular, the author investigates the basis for beneficiary’s participation in the legal relations under the nominal account agreement, the problem of formalisation of contractual terms of account operations (clarifying the difference between the concepts of ‘control’ and ‘restriction’ of operations), pays attention to some controversial aspects of regulation and proposes their solution, and also comments on the procedure of beneficiary identification by the bank. The article concludes with some examples of practical applications of the nominal account, based on its peculiarities.

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Keywords: nominal account, beneficiary, account holder, special account, cash management, ownership of funds, control over use of funds, restriction of transactions, identification of beneficiary, beneficiary, guardian and trustee account, confidential factoring

The article analyses the reasons for the formation and application of unfair commercial practices of professional financial market participants, issues of protection against unfair practices. The author’s concept and signs of unfair commercial practices are proposed. The types of unfair commercial practices of professional participants in the financial market are investigated and their division into practices is proposed, — i.e. the practices aimed at 1) clients who are professional participants in the financial market, or who are able to understand complex financial issues, and 2) clients who purchase financial services for personal use, which requires to provide them with a better protection.

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Keywords: unfair commercial practices, asymmetric distribution of information, inequality of negotiation opportunities, unfair client tactics, types of unfair practices

The article deals with the problem of determination of the moment of conclusion of a consumer credit agreement in comparison with a consumer loan agreement, and presents the results of the analysis of the conditions on the moment of conclusion of the agreement offered by Russian banks. The study showed that banks use both a consensual and a real contract model. The author answers the question of which model is acceptable.

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Keywords: consumer, consumer credit (loan), the moment of conclusion of the contract, real contract, consensual contract, general conditions, individual conditions, banks

On December 25, 2023, the Constitutional Court of Russia adopted Decree No. 60-P in Filatov case concerning usurious interest. The article substantiates that in interpreting the institution of prejudice, the new approach contradicts the numerous practices of the Constitutional Court itself, in particular, it introduces prejudice on issues of law, and not just fact. In addition, the Decree does not consider the key question of what are the usually charged interest rates in the sense of paragraph 5 of Article 809 of the Civil Code and, accordingly, what are the usurious interest rates? The author’s position on this issue is proposed, taking into account the European and American experience of limiting usury. In particular, it is suggested to unify the interest rate ceilings (caps) and also establish a maximum debt-to-loan ratio for B2C consumer loans and small B2B loans to individual entrepreneurs, regardless of who the creditor is.

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Keywords: prejudice of court decisions, usurious interest, consumer loans, penalty, debt load

This article analyses problematic aspects of the use of enhanced qualified electronic signature (EQES) in signing and using credit and collateral documentation on the example of “Bank “Saint- Petersburg” PJSC. The authors consider the prerequisites for the implementation by credit institutions of legally significant electronic document flow for signing and use of credit and collateral documentation, note the differences between handwritten and electronic signatures, characterise the advantages of the EQES in relation to other types of electronic signatures provided for by the legislation, identify problematic aspects associated with the limitation of the terms of usability of electronic documents signed by the EQES. The first is the legislative establishment of the EQES validity criterion, which requires to determine the authentic moment of signing an electronic document during the period of validity of a qualified certificate. The second is the absence in the law of provisions regulating the preservation of legal significance of an electronic document signed with an attached trusted time stamp beyond the validity period of a qualified certificate of the trusted time stamp service, which entails the risk of challenging the relevant electronic document. The authors believe it is necessary to fill this regulatory gap in order to ensure the suitability of electronic documents within an unlimited time period, and also propose to amend the Law on Electronic Signature with regard to the validity conditions imposed on the EQES.

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Keywords: electronic document, electronic document management, advanced electronic signature, qualified electronic signature, requirements for validation of qualified electronic signature, electronic time stamp, preservation of electronic signature

Every serious lawyer in his professional life is faced with a situation when, coming into contact with unknown legal matter in his work, revealing the meaning of legal norms or legal institutions, he finds an unexpected way out of the impasse, discovering something new in law. May such work of a lawyer be called a scientific one? Conversely, is there even branches in legal science? What are the criteria for the validity of legal constructions? The paper discusses these issues in the context of contrasting analytical and descriptive jurisprudence and the relationship between dogmatics and the politics of law.

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Keywords: science, jurisprudence, heuristics, dogmatics, politics of law

The author continues the recent research on the legal status of the conclusions of a legal specialist in the Russian criminal proceedings. The ambiguous approaches of judicial practice are shown and an attempt to harmonise them with theoretical provisions of criminal procedure is made. In general, such conclusions are a way of the accused to defend against the accusation, and are admissible both in the legislation and in the judicial process.

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Keywords: conclusion of a specialist, criminal procedure, interrogation of a specialist, evidence process

In the September Chronicle, read comments on the criminal case of Pavel Durov in France, on the laws on amnesty for business crushing, on mining, on the introduction in the Criminal Procedure Code of an online form of meetings between a advocate and a prisoner, on changes in the foreclosure of a bankrupt’s only home, and on new approaches of the Supreme Court to the recognition and enforcement of international commercial arbitration awards.

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Keywords: Durov’s case, business crushing, mining law, attorney dating, bankrupt’s sole dwelling, enforcement of arbitration awards

The article examines the legal nature of compensation, which is the most popular method of protecting an exclusive right in Russian judicial practice. As a result of a consistent analysis of each of the types of compensation for violation of an exclusive right it is concluded that compensation does not have a single legal nature. Compensation in a fixed amount and compensation in the form of double cost of the right of use are measures of civil liability and are restorative in nature with a moderately punitive beginning. Compensation in the form of double cost of counterfeit goods is of a mixed nature combining elements of an obligation from unjustified enrichment and responsibility.

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Keywords: intellectual property, protection of exclusive rights, civil liability, restorative concept, punitive concept, moderately punitive concept, tort, unjust enrichment

The article studies the regime of marital property in Russia and abroad in order to find out whether this regulation is acceptable for the domestic legal order and what alternatives it has. The author concludes that this regime is conceptually convenient, and refutes the idea about the Soviet origin of the marital property. However, there are serious problems both in the regulation of property relations of spouses and relevant law enforcement that require elimination.

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Keywords: joint property of spouses, property relations of spouses, regime of marital property, deferred community, personal property of spouses

The article is devoted to the debatable issues of application of the principle of good faith in interpreting the terms of a smart contract, clarification of the meaning and content of the preliminary agreements of the parties that take place before the conclusion of a smart contract. Among the key factors of interpretation, the authors consider the volitional element of the participants of civil turnover, the nature of the performed obligation within the programme code. Also, in this part the peculiarities of interpretation of smart contracts by courts from the point of view of compliance of the application of provisions from a smart contract with the principle of good faith were especially studied. The researchers have modelled and analysed examples demonstrating particular cases of application of the principle of good faith arising on or before the conclusion of a smart contract (pre-contractual stage of relations).

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Keywords: smart contract, programme code, principle of good faith, contractual term, performance of an obligation, literal (close) interpretation

The article is devoted to the judicial review procedural features of applications for performance fee relief. Attention is drawn to the lack of unified requirements for the procedural form, legal proceeding types, remedies, statutes of limitation and the specifics of consideration of such applications. In addition, courts and scientific community present different variants of the rules application for performance fee relief. The author makes a conclusion about varying degrees of debtor`s rights protection, that unreasonably depends on the chosen type of legal proceedings. Meanwhile, the article proposes to create a unified, clear legal framework that excludes the usage of the law analogy, and it emphasises the need for clarification of procedural features at the level of the Supreme Court of Russia. Finally, the author gradually structures the procedural model for considering an application for performance fee relief, containing recommendations on the time limits for applying to the court, an appropriate remedy and other specifics of considering such disputes.

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Keywords: enforcement proceedings, performance fee, performance fee relief

China did not adopt the UNCITRAL Model law in either version and its arbitration legislation often does not reflect the world-recognised practices of international arbitration. However, during the last few years, China has been softening its approach towards both international commercial and investment arbitration. The recent court decisions, adoption of the new Civil Procedure Law and proposal of the Draft Amended Arbitration Law signify gradual recognition of the concept of ‘seat of arbitration’ instead of relying on the domicile of the arbitration institution. Furthermore, Chinese courts have acknowledged the capacity of foreign arbitration institutions to administer disputes within mainland China — a significant shift from past practices where only Chinese arbitration commissions could administer arbitration proceedings in China under the Arbitration Law. This change is also reflected in the Draft Amended Arbitration Law. Another crucial legislative change is adoption of the Foreign State Immunity Law, which came into effect in January 2024. By enacting this law, China has shifted from absolute to restrictive immunity in disputes between a person or entity and a state. Thereby China allowed claims against foreign states arising out of commercial activities or international investment treaties to be considered in Chinese courts. Nevertheless, challenges remain in regards of recognition and enforcement of investment arbitral awards or conducting of investment arbitration in China. First, China’s reservation under the New York Convention 1958 limits recognition and enforcement of foreign awards to ‘commercial’ disputes, excluding investor-state disputes. Besides, it is discussed that China has not taken proper steps to recognise the ICSID awards as national ones for purposes of enforcement, even though it ratified the ICISD Convention. Furthermore, formally under the current Arbitration Law the investment arbitration is not possible. Finally, considering the latest legislative amendments, recent court practice and updated arbitration rules of Chinese arbitration institutions, it can be concluded that China has taken the proarbitration approach.

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Keywords: international arbitration, Chinese arbitration legislation, arbitration reform in China, seat of arbitration, jurisdictional immunity of foreign states, investment arbitration in China

The People’s Republic of China was established on 1 October 1949, and in the initial years after its emergence on the world stage, the country embarked on an active phase of law-making, culminating in the adoption of its first Constitution on September 20, 1954. This constitution was based on the Stalinist Constitution of 1936 and incorporated some of its constitutional and legal institutions, categories, and norms of the time. The 1954 Constitution of the PRC laid the foundation for the state system not only for the early period of the PRC but also for modern China. It served as the basis for the 1982 Constitution, which is the fourth and current Constitution in effect today. The foundational elements of the political system and the structure of the supreme and local bodies of state power and administration established in the early years of the PRC remain in place. The spirit of the 1954 Constitution has permeated all subsequent constitutional legislation in the PRC. Consultative democracy, democratic centralism, a unicameral parliament, and many other features that are now integral to China’s political system were established by the first Constitution of socialist China. Understanding the essence of the ideas enshrined in this foundational document is crucial to comprehending China’s unique constitutional way of development and providing a reasonable scientific forecast of its future evolution.

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Keywords: China, Communist Party of China, consultative democracy, constitution, constitutional development, political system, non-Western political models