Журнал ЗАКОН

Two crucial methodological foundations of using the evidence remain underestimated in criminal procedure theory. These are, firstly, static effect and, secondly, dynamic perspective of proving in criminal cases. However, without them we cannot adequately address problems of electronic evidence and electronic criminal case that are actively discussed in the doctrine of criminal procedure and cause numerous disputes. Correct understanding of the methodology of criminal procedural proof makes these problems appear far-fetched.

---

Keywords: criminal procedure, evidence, static effect, dynamic perspective, electronic evidence, electronic criminal file

The article analyses in detail the judicial practice that has been forming since the end of 2021 on the application of Article 248.1 of the Arbitrazh Procedure Code of the Russian Federation in disputes between sanctioned Russian persons and companies from ‘unfriendly’ jurisdictions in the view of the classical doctrines of law of evidence. The author concludes that modern approaches of Russian courts to proving in these cases, despite the fact that they are in line with the general policy of supporting domestic business, are difficult to describe in procedural terms known to jurisprudence. Such an observation makes suspect that we are facing an attempt to solve a problem with procedural tools, which is actually remotely related to evidence, but lies in the plane of substantive law, in the sphere of regulating economic (non-procedural) relations with ‘unfriendly’ foreigners.

---

Keywords: sanctions, jurisdiction, evidence, fact of common knowledge, presumption, retorsions

Despite the fact that the problems of evidence in civil, arbitrazh, and administrative proceedings have been studied for a long time, many controversial issues remain, which increase due to the development of objective processes in society (digitalisation, etc.). The article reveals some modern trends in the development of evidence in the identified three branches of procedural law. The author dwells on the activation of the court in obtaining evidence from open information sources, on the role of the court in the development of evidence through the formation of the concept of the standard of evidence, indirect presumptions, and the process of digitalisation of legal proceedings, areas of application of artificial intelligence in legal proceedings are considered.

---

Keywords: evidence, collection of evidence, open information sources, digitalisation of legal proceedings and evidence, standard of proof, indirect presumptions, the role of the court and civil procedure research in the development of the theory of evidence

The article deals with the position of the Supreme Court of the Russian Federation, according to which the results of auctions more reliably reflect the market value than expert estimates. Starting from the fact that the reliability of expert assessment of market value is detached from comparison with objective reality, the author criticises the approach of the Supreme Court, proving that expert assessment is the only admissible evidence of market value, even in conditions of interval nature of assessments.

---

Keywords: market value, reliability, valuation, auction, market price

The author of the article discusses whether an investigator in the interests of evidence has the right to demand from the accused to help him unlock his smartphone. The main attention is paid to the conceptual dimension of the problem. Possible forms of coercion: requesting a password, demanding unlocking, using biometrics, are examined in the light of the rule of nemo tenetur (the right not to testify against oneself). The scope of this rule and the possibility of exceptions, the problem of its mandatory clarification and the consequences of violations are considered. At the end of the article the practical complexity of the raised issue is revealed, its connection with the criminal procedural policy of the State is demonstrated, and an assumption is made about a possible vector of its solution. Turning to foreign law, the author takes into account the experience of the USA and Germany as bright representatives of different models of criminal procedure.

---

Keywords: mobile phone, smartphone, unlocking, password, criminal procedure, privilege against self-incrimination, nemo tenetur

The article substantiates the need to apply a procedural sanction in the form of the application of the presumption of recognition to the party of the case that evades the provision of evidence requested by the court, i.e., the application by analogy of Part 3 of Article 79 of the Civil Procedure Code of the Russian Federation to cases of nonpresentation of written and material evidence. A sanction in the form of a presumption of recognition can only be applied if the court is highly likely convinced that the party has the required evidence, but refuses to provide it without good reason. The application of property sanctions to persons involved in the case who evade the presentation of evidence requested by the court is ineffective.

---

Keywords: presumption of recognition, sanction, demand for evidence, adversarial principle, redistribution of the burden of proof

The lack of fundamental developments at both the legislative and doctrinal levels in the field of hearsay evidence leads to several issues that undermine both the private interest of the accused in protection against unfounded accusations and the public interest of society and the state in establishing an effective criminal justice system. These issues are most acute when the defense attempts to adjust the evidentiary base by excluding such evidence as inadmissible. Among the latter, the assessment of hearsay evidence presents the greatest difficulties due to legislative imprecision. An analysis of relevant case law has not only confirmed the hypothesis of the problematic approach to evaluating such evidence but also allowed for the formulation of proposals for extralegislative adjustments to the law enforcement course.

---

Keywords: evidence, inadmissible evidence, witness testimony, hearsay, criminal procedure

In February’s Legal Chronicle, experts comment on the December ruling of the Plenum of the Supreme Court on the application of the rules of the Criminal Procedure Code governing the grounds and procedure for returning a criminal case to the prosecutor, amendments to the law on the procedure for considering citizens’ appeals, the Constitutional Court’s ruling on the Sochi dachas case, which addressed issues of land ownership, as well as novelties on the taxation of cryptocurrency and mining in Russia.

---

Keywords: return of the criminal case to the prosecutor, citizens’ appeals, Constitutional Court, land ownership, seizure of land plots, recognition of the right as absent, taxation of cryptocurrency, mining

The paper examines how Russian Civil Code, which celebrates its 30-year anniversary in 2025, affected Russian corporate law’s ability to compete with foreign jurisdictions to attract businesses. From Charles Thibou’s 1956 seminal work perspective on regulatory competition the author of this paper argues that Russian Civil Code has had its ups and downs in terms of attractiveness of Russian corporate law. The paper shows that for the first 20 years of the Code since it has been enacted, Russian Civil Code contributed a lot in moving Russian businesses out of Russia, mostly under the English law jurisdiction. However, the fundamental legal reform of the Code commenced in 2012–2015 dramatically changed the state of affairs: more and more Russian businesses have started to employ Russian substantive law, including corporate law, to structure commercial deals. This process of moving back to Mother Russia was fueled by introduction of a new piece of legislation in 2018, which allowed a re-domiciliation of foreign companies into Russia, and finally by a new legislation of 2021 that effectively incorporated in the Civil Code functional analogues of trusts under Russian law. The paper concludes by set of legal reform proposals aimed to further enhance Russian corporate law and to make it even more competitive and business-friendly.

---

Keywords: Russian corporate law, regulatory competition, corporate law reform in Russia, enabling statute in corporate law, Russian Civil Code

The article analyses the transactions with special approval procedure stipulated by the charter of a business entity in corporate law of Russia. The subject of proof in disputes challenging transactions conducted in violation of the sole executive body’s authority limitations, established by the corporation’s charter, is examined. It has been established that the failure to prove the counterparty’s awareness of the restrictions set forth in the company’s charter is the main reason for the dismissal of claims. Factors that make it difficult to establish awareness and typical mistakes made by courts in resolving such cases have been identified. Against this background, there is a tendency to reduce the number of claims for invalidation of these transactions. To resolve law enforcement problems, the necessity of institutionalisation of the principle of public limitation of powers of corporate management bodies, providing for the opposition of statutory restrictions to third parties when they are entered into the Unified State Register of Legal Entities (EGRUL), has been substantiated. The implementation of this principle and the proposed measures to improve the legislation will narrow the scope of the principles of public trustworthiness of the register and abstraction, which limit the potential for statutory extraordinariness. The proposed reform will enhance the protection and safeguarding of corporations, ensure consideration of their individual interests, increase the stability of civil turnover, and improve the attractiveness of the Russian jurisdiction.

---

Keywords: charter of the company, corporate approval of transactions, invalidity of transactions, the principle of public trustworthiness of the register, principle of public limitation of powers

The article analyses the institute of sickness orders. It is concluded that domestic law does not know such an institute; the tasks that in German law are solved by sickness orders, in our country are partly solved by the contract of trust management of property, and partly remain unresolved. The author shows that sickness orders could protect the non-property and property interests of a citizen. The article defines a model of possible regulation of orders in case of illness, proposes their notarial form and register, concludes that the scope of powers of the representative will have significant similarity with the powers of the legal representative.

---

Keywords: sickness order, guardianship, patronage, power of attorney, authority, informed voluntary consent to medical care

The article analyses the relevance and challenges of cross-border insolvency in Russia. The author emphasises the impact of foreign approaches to the regulation of cross-border insolvency on Russian case law. The research focuses on identifying general trends and issues, given the limited number of examples from Russian case law. The author examines key aspects such as the concept of the centre of main interests (COMI) and the interaction between main and secondary proceedings. The author compares some conclusions made by the Supreme Court of the Russian Federation in the Westwalk case with international approaches. This case serves as an important reference point for illustrating existing problems and forecasting future legal practice in cross-border insolvency cases within the Russian legal system. Contemporary Russian law is characterised by the absence of legislative regulation concerning cross-border insolvency. Nevertheless, Russian courts hear insolvency cases involving foreign individuals and, more recently, legal entities. In making decisions on these cases, they refer to the UNCITRAL Model Law and Regulation (EU) No. 2015/848 of May 20, 2015. In conclusion, the author suggests to implement the UNCITRAL Model Law on Cross-Border Insolvency or conclude an international treaty on cross-border insolvency with CIS and EAEU States, with which the Russian Federation has established close economic ties.

---

Keywords: centre of main interests of the debtor, cross-border insolvency, main proceedings, secondary proceedings, protocol

The article addresses the provisions of international treaties, according to which the recoverer should send the request for enforcement of a court judgment abroad to the court that rendered the judgment in the first instance, and not to the court of the state of the debtor’s location (i.e. a foreign court). The literal interpretation of these norms shows that the recoverer has no possibility to send the request to a foreign court directly, bypassing the forwarding of the judgment by way of legal assistance (except in cases where the recoverer has residence or location in the state of enforcement of the judgment). In the author’s opinion, such an interpretation contradicts to the purpose of the relevant treaties — to ensure access to the courts of the contracting countries. Therefore, if the national legislation establishes a more favourable legal regime, it should be applied.

---

Keywords: international legal assistance, recognition and enforcement of foreign judgments

We present to the reader an excerpt from P.V. Krasheninnikov’s book ‘The State against the Revolution, 1923–1938’. The published essay is devoted to the discussion of what is right, which was conducted by legal scholars in the period considered in the book. Deadly dangerous for E.B. Pashukanis was the inconsistency of his view of law with that of A.Ya. Vyshinsky.

---

Keywords: philisophies of law, E.B. Pashukanis, A.Y. Vyshinsky, proletarian law, law of catastrophes