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Ноябрь 2010



Chief editor’s column


Interview of the issue

Meyer l. I was impressed by what i have seen in russian courts
Questions of the chief editor of the magazine “LAW” Yan Piskunov are answered by the chairman of the Federal Court of Switzerland Lorenz MEYER
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The Event. Comments of the Experts

Return of religion-purpose property to religious organizations: the matter on cultural values
The draft law on return of religion-purpose property to religious organizations has been actively discussed in the State Duma. The society concerns about the destiny of cultural values which are now controlled by the government. What is your opinion on the proposed procedure for transfer of cultural values to religious organizations?


Topic of the issue

A.V. Demin Evaluative notions in norms of the tax law: reasons for appearance and perspectives of use
The article considers problems associated with use of evaluative notions in the mechanism of tax legal regulation, analyzes the notion, signs and certain types of evaluative categories, justifies reasons for use thereof in tax laws, makes the conclusion on the necessity to ensure the balance of strictly formal and relatively determined aspects in norms of the tax law.
Keywords: norm, tax law, tax, taxation, evaluative notion, uncertainty
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E.A. Kiseleva, A.V. Serov Due prudence – a reef or lifebuoy for a taxpayer?
The article analyzes on the basis of the arbitration practice of 2010 application of the category of “prudence” in tax relations as well as necessary and sufficient actions on the part of the taxpayer as confirmation of due prudence while selecting a counteragent.
Keywords: due prudence, unjustified tax benefit, fairness of a taxpayer
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A.S. Denisov Application of the criterion of unfairness at consideration of tax disputes associated with transfer pricing
The article touches upon particularities of application of the criterion of unfairness at consideration of tax disputes associated with transfer pricing. It considers problems of the todays’ practice of law enforcement as well as directions for improvement of legal regulation in this area.
Keywords: tax law, transactions, interrelated persons, unfairness, pricing, transfer prices
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A.P. Zrelov Up-to-date criteria and problems of determination of incomes from entrepreneurial activities
Effective law does not contain any clear rules for recognition of entrepreneur’s incomes from entrepreneurial activities. This results in numerous differences including tax disputes. Analysis of the court-arbitration practice conducted by representatives of the Supreme Arbitration Court of the Russian Federation also revealed absence of unicity on this matter.
Keywords: tax, deduction, entrepreneurial activity, income, arbitration
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E.A. Rovinskaya The practical aspect of the matter on proportions of the civil law and tax law
In this article the author, using some legal institutes as examples, considers aspects of inter-penetration of the civil and tax law. Analyzing today’s tendencies in the entrepreneurial practice, the author criticizes the priority of tax norms dedicated by the government arguing that the tax law applies for assessment of consequences of execution of civil transactions and does not set any rules and restrictions which would have negative impact on the fundamental rights of persons – subjects of business (property) legal relations.
Keywords: tax relations, tax authorities, unjustified tax benefit, unfair taxpayer
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M.V. Karaseva Tax legal relation: property identity and problem of adaptation of private legal constructions
On the basis of analysis of tax legislation and court practice the author justifies the provision that introduction of private legal constructions into the Tax Code of the Russian Federation and use thereof not only in the original but also in the transformed form within the framework of the public legal regime is quite justified. In addition, application of private law constructions by a court for interpretation of tax legal norms is permissible but there are limits of such application.
Keywords: private legal constructions, tax legal relation, tax legal constructions, interpretation of a tax legal norm
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Theory and practice

K.A. Novikov On abstract and casual transactions and obligations
Without exhausting absolutely all the properties which could be material in these or those circumstances, the notion of “cause” in a transaction and obligation relates to those feature thereof which determine their function and serve a means for qualification thereof.
Keywords: cause, abstractedness of a transaction, obligation
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A.V. Milkov To the matter on relations between the notions “right protection” and “right security”
The article touches upon the discussion of the matter on relations between the notions “right protection” and “right security”. The author analyzes various approaches of jurists and makes its own conclusion.
Keywords: protection of civil rights, security of civil rights, legal regulation, legal norm
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A.N. Reznichenko Legal nature of a banking transaction
Having analyzed positions of national jurists as regard to the legal nature of the banking transaction as well as the reasons for use of this term in laws, the author does not find for the banking transaction a place in the system of legal facts.
Keywords: banking law, banking activities, banking transaction, actions or fulfillment of the contract
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A.A. Glushetski A CJSC and a non-public company – change of the term of reforming of the essence?
This article analyzes the draft law proposed by the Ministry of Economic Development of the Russian Federation on introduction of amendments to Federal Law dated 26.12.1995 No. 208-FZ “On Joint Stock Companies” concerning closed joint stock companies.
Keywords: public and non-public joint stock companies, limited liability company, security, claim, assignment of a claim, repurchase price
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D.Ya. Maleshin Court precedent in Russia: social cultural particularities
The court precedent is one of the criteria for distinguishing of the Anglo-Saxon and Roman-German procedural systems. Use thereof in our country is associated with certain specificity. Not being an official source of law, it causes significant influence on the law enforcement practice. Such specificity has, in the author’s opinion, social cultural particularities.
Keywords: court precedent, sources of law, social cultural type of the society
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A.A. Kuznetsov Consequences of abuse of the right in relations between a shareholder and joint stock company
The article touches upon the problem of consequences of abuse of the right in relations between a shareholder and joint stock company which has not been studied enough in the science of the civil law. Attention is paid to specificity of such consequences, arising practical problems and ways for resolution thereof.
Keywords: shareholder, abuse of the right, consequences, joint stock company, right protection
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L.Yu. Sobina Particularities of implementation of the principle of mutuality in the Russian institute of recognition of foreign bankruptcies
The article touches upon consideration of particularities of implementation of the principle of mutuality in the Russian institute of recognition of foreign bankruptcies. On the basis of study of experience of foreign countries and international legal acts applicable in the area of trans-border insolvency, the author analyzes proposals of the Ministry of Economic Development of Russia on exclusion of the principle of mutuality from the Russian institute of recognition of foreign bankruptcies and comes to the conclusion on prematurity of refusal of this principle.
Keywords: trans-border insolvency (trans-border bankruptcies), recognition of foreign bankruptcies, territorialism, universalism, principle of mutuality, principle of conventional exequatur, positive and negative mutuality
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Foreign experience

A.V. Argunov Special proceedings in the law of civil procedure of France
The article considers matters associated with legal regulation of special proceedings in the law of civil procedure of France. Absence of any scientific works concerning analysis of foreign procedural legislation does not permit to the Russian science on the law of civil procedure to develop with the same speed as the science of European countries, slows down development of the judicial reform in Russia. The analysis of legal regulation of the institute of special proceedings in France proposed in the article may be useful to reform the similar institute in the Russian law.
Keywords: civil proceedings in France, special proceedings, judicial reform
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Legal education

V.S. Prokhorov “Society should know how to protect themselves”
Questions of the magazine “LAW” are answered by the professor of the Saint-Petersburg State University, merited jurist of the Russian Federation, honored lawyer of the Russian Federation, honored man of science of the Russian Federation, doctor of legal sciences Vadim Semenovich PROKHOROV
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Actual classic