ARCHIVE FOR 2025 RUSSIAN
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Март 2025
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Exit Tax Comments by S. Pepeliaev, V. Machekhin, A. Bryzgalin, Ye. Kelikh, I. Shitkina
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Topic of the issue
L.E. Bandorin, A.V. Basharin Understanding the Place of Development Agreements in Russian Law The authors analyse the views on the legal nature of development
agreements that have been developed in the Russian legal
doctrine and judicial practice. According to the authors, the use of
development agreements in modern Russian law is a renaissance
of the Soviet approach to urban regulation based on the adoption of
individual administrative acts.
Keywords:
development agreements, community benefits agreements, land value capture, сontract-based land use system, land use regulation, contract zoning, annexation agreements, planned unit development
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K.N. Shemiakin Contractual Imposition of Infrastructure Burden on Developers The problem of social infrastructure development lagging behind
the increasing volume of housing construction in Russian cities is
currently acute. This paper critically examines the existing structures
in domestic law for involving developers in the creation of related
infrastructure in residential development projects. Taking into account
the amendments to the legislation adopted at the end of 2024
both at the federal and regional levels, it is proposed to consider a
differentiated legal design of developers’ participation in ensuring
the construction of associated infrastructure facilities, based both on
the use of private legal instruments (contractual and corporate forms
of participation) and the improvement of already established public
mechanics.
Keywords:
town planning contract, urban development, integrated development of the territory, related infrastructure
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A.V. Vinnitskiy, I.N. Kharinov Quickly Erectable Buildings as (Non) Permanent Constructions The subject of the study were the provisions of urban planning and
related legislation regulating the creation of the quickly erectable
buildings, as well as the extensive practice of their application.
Having considered the key issue of differentiating the legal regimes
of capital and non-capital objects, with reference to legal doctrine
and the latest judicial and arbitration practice, the authors come to
the conclusion that the technology of creating fast-erected buildings
(assembly of modules, panels, frame elements, etc.) largely erase
the boundaries between capital and non-capital objects (between
real estate and movable property) as the legal qualification of
the erected object depends crucially on the chosen method of its
placement on the land plot.
On the basis of modern town-planning legislation, the authors state the
unreasonableness of the position established in the science of private
law and law enforcement practice on the identification of “strong” and
“indissoluble” connection of the object with the land. It is concluded
that the movability of a building without causing disproportionate
damage to it is an independent criterion for determining its (non)
capital character, which is determined by the (non)discontinuity of
connection not only between the building and the foundation, but also
between the elements (parts) of the building and each other.
Analysis of judicial and arbitrazh practice on the (non)capital nature
of fast-built constructions in different categories of disputes — on
privatisation of land plots, on unauthorised construction, on bringing
to administrative responsibility, on additional tax assessment —
demonstrates significant differences in the views of law enforcers,
which requires the development of common universal approaches
at least at the level of generalisation of the practice of the Supreme
Court of the Russian Federation.
Keywords:
quickly erectable buildings, temporary structures, permanent buildings, modular structures, infrastructures permanent improvements, real estate, structures, parcel
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D.S. Nekrestyanov, A.O. Limarova Auxiliary Facilities The legal concept of the ‘auxiliary facilities’ and their current
regulatory framework are the key subjects of this research.
Given that auxiliary facilities are allowed to be erected without a
construction permit, it becomes crucial to establish clear criteria
for determining their auxiliary nature, thereby preventing potential
misuse.
Keywords:
auxiliary facility, construction permit, functional bonding, permitted use
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E.S. Boltanova Urban Planning Legislation in Ensuring Everyone’s Duty of Care for the Preservation of Historical and Cultural Heritage The paper notes the systemic legal regulation of the protection of
cultural heritage sites in Russia. The subject is the norms of urban
planning legislation. The Urban Planning Code of the Russian
Federation identifies three objects of legal relations for the protection
of cultural heritage (a historical settlement, a cultural heritage site
and its territory, and a zone with special conditions). Each of the
objects has its own rules for urban planning activities. These features
are consistently discussed in the article.
Urban planning rules for the protection of the cultural layer of Russia
are mainly contained in other sources of law. The Federal Law “On
Cultural Heritage Sites (Historical and Cultural Monuments) of the
Peoples of the Russian Federation” plays an important role. This
situation seems justified. The legislation on cultural heritage is about the preservation of a territory with its historical value. In its turn, the
principal setting of urban planning legislation and related activities
is the development of the territory. The development of a territory
is about its dynamics, urban planning involves the construction,
reconstruction, demolition of capital construction facilities, and
planning of new facilities. This implements a systematic approach
to the legal regulation of complex and contradictory (in this context)
relations.
Keywords:
urban planning, protection of historical and cultural monuments, historical settlement
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M.V. Popov The Role of the Integrated Development of the Territory, Local Self-Government and Citizens in the Urban Planning Activities Over the 20 years since the adoption of the Urban Planning Code of the
Russian Federation in 2004, several of its most important foundations
have changed significantly. Thus, if initially representative bodies of
local self-government had a decisive role in the implementation of
urban development activities on the territory of a municipality, now
the withdrawal of powers in the field of urban development to the
regional level or their transfer to local administrations has become a practically general rule. Furthermore, the original version of the
Urban Planning Code enshrined (and formally remains to this day)
the principle of participation of citizens and their associations in
the implementation of urban development activities, ensuring the
freedom of such participation, which was implemented through
mandatory and fairly lengthy public hearings regarding draft general
plans and land use and development regulations; now even minimal
participation of citizens in the discussion of urban development
decisions can be completely excluded by a decision of a constituent
entity of the Federation. Finally, the traditional mechanism for
implementing urban development activities, designed for the
territory of the entire municipality, is being replaced everywhere by
a point-by-point, largely based on arbitrary management decisions,
integrated development of the territory (kompleksnoye razvitie
territorii). The article suggests that one of the main goals of such
simplification of urban development regulation is to shift the costs
of building utilities, transport and social infrastructure facilities to
the developer, or rather, to the end buyer of real estate. As a result,
preconditions are created for even greater alienation of citizens from
participation in determining the urban appearance of settlements,
for even greater disproportions in the density of development at the
federal, regional and local levels, for an even greater increase in the
cost of real estate.
Keywords:
urban development activities, redistribution of powers, citizen participation in the discussion of urban development documentation, public hearings, public discussions, integrated development of the territory, public utilities
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N.G. Narysheva Legal Problems of Establishing the Permitted Use of Primarily Formed Land Plots Located in the Sphere of Urban Zoning The article identifies problems of legal regulation of establishing
the permitted use of initially formed land plots. It is noted that the
legislation does not clearly enough differentiate between the concepts
of “permitted use of a land plot” and “belonging of a land plot to a
territorial zone”. In order to resolve problems of legal regulation,
proposals aimed at improving legislation are substantiated:
differentiation of the norms of urban planning and land legislation
regarding the implementation of urban zoning and the establishment
(change) of permitted use; differentiation of legal regulation of
establishing the permitted use of initially formed land plots, depending
on the procedure for providing land plots; vesting public authorities
with powers to establish the permitted use of land plots in the field of
urban planning zoning in cases established by federal law.
Keywords:
urban planning zoning, urban planning regulations, permitted use of land plots, exercise of the right to choose the permitted use of land plots
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T.S. Krasnova To Develop or not to Develop a Land Plot? Commentary to the Resolution of the Constitutional Court of the Russian Federation dated 6 November 2024 No. 50-P The article is dedicated to the Resolution of the Russian Constitutional
Court, which is the result of the court’s review of Part 3 of Article 8.8
of the Code of the Russian Federation on Administrative Offences for
the compliance with the Constitution. The author draws attention to
the issue of whether an owner of a land plot intended for housing or
other construction has an obligation to use the plot and the possible
adverse consequences of violating such an obligation de lege lata et
de lege ferenda. On the basis of the analysis the author concludes
that despite the long-standing doctrinal discussion on this issue,
the Constitutional Court and the Russian Legislator assume that
an owner of a land plot has this obligation. Consequently, after the
reform of the land legislation, after March 1, 2025 in case of nonuse
of a land plot intended for housing or other construction, there
are all grounds not only for bringing an owner of the land plot to
administrative responsibility, but also for withdrawal of the land plot.
Keywords:
use of land plot, development of land plot, build-out of land plot, withdrawal of land plot
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K.V. Sudarikov Changing the Purpose of Use of Public Land Plots in Case of Changes in Land Use and Development Rules The article is focused on a consideration of options of actions of a
leaseholder of a public land plot, faced with a contradiction between
the purpose of use stated in the lease agreement and the changed
types of permitted use of the land plot. The author concludes that
the signing of additional agreements on changing the purpose of
use of the land plot causes a significant risk of recognising such
agreements as invalid transactions. The existing judicial practice
in most cases does not recognise a change in land use and
development rules as a material change of circumstances. However,
the analysis of the established conditions for changing an agreement
in court has shown that a change in land use and development rules
resulting in the impossibility of using the land plot in accordance
with the purpose specified in the agreement or the loss of the right
to buy out the land plot meets the criteria of a material change of
circumstances.
Keywords:
lease agreement, town-planning regulations, change of type of permitted use, material change of circumstances, land use and development rules
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A.O. Beloplotov Actual Problems of Accounting and Involvement of Existing Engineering and Technical Support Networks in the Integrated Development of the Territory The article discusses problematic aspects of accounting for and involving
existing engineering and technical support networks, as well as topical
issues of constructing new engineering infrastructure facilities as part
of the implementation of integrated territorial development projects. Based on the results of the analysis of law enforcement practice,
the article identifies gaps in the legal regulation of the connection
of capital construction facilities to engineering networks within the
framework of the integrated development of the territory. The author
substantiates that within the framework of the integrated development
of the territory, when existing engineering networks are withdrawn for
state and municipal needs, the purpose of withdrawal declared in the
law is absent, which indicates the inadmissibility of such withdrawal.
The author comes to the conclusion that the current provisions of
the legislation insufficiently regulate the construction of engineering
networks outside the boundaries of the territory of integrated
development.
The article proposes a solution regarding the distribution of
obligations for the construction of utilities beyond the borders of
the relevant territory. The author also highlights exceptions to the
general rule regarding the removal of utility networks for public use.
Keywords:
integrated development of the territory, networks of engineering and technical support, linear object, easement, public easement, public needs
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N.V. Kichigin Landscaping in the Urban Development System Landscaping has been included in urban planning activities since
2017. In addition, this type of activity is regulated by the legislation on
the general principles of the organisation of local self-government. As
a result, there is a dualism of legal regulation and legal uncertainties
regarding the levels of regulation of landscaping activities.
There is legal uncertainty regarding the application of technical
regulation documents (codes of rules) and methodological
recommendations being developed at the federal level. It is
concluded that landscaping can be divided into landscaping of
municipal territories, regulated by municipal rules, and landscaping
of adjacent territories, as an integral part of construction activities
carried out in accordance with the approved design documentation
for the construction (reconstruction) of capital construction facilities.
Based on the conducted research, the author states that the
regulation of landscaping should be carried out within the framework
of urban planning legislation in order to eliminate dualism in legal
regulation.
Keywords:
landscaping, urban planning, landscaping elements, landscaping standards, landscaping rules
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Legal Chronicle In the March Chronicle, experts comment on the change in the procedure for paying for mobile
radio-telephone services through cash settlements; the February ruling of the Supreme Court of
the Russian Federation on the reclassification of civil law relations with the self-employed into
labour relations and the corresponding tax consequences; the law aimed at protecting citizens
from entering into consumer credit contracts without their voluntary consent, which will come
into force from 1 March 2025; the US President’s decree on the imposition of sanctions against
the UN International Criminal Court.
Keywords:
cash, self-employed, labour contract, contract reclassification, fraud protection, consumer credit, sanctions, International Criminal Court
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Press Release
Theory and practice
A.A. Gromov Defences Applicable against Unfair Contract Terms Russian court practice presents various ways of fighting unfair
contract terms. Despite the fact that the purpose of these defence
mechanisms is generally the same, each of them presupposes its
own set of factual circumstances allowing to invalidate the condition
in whole or in part. The article attempts to analyse the mentioned
methods of protection and to determine what facts are directly
necessary to confirm when using each of them.
Keywords:
freedom of contract, unfair contract terms, invalidity of transactions
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M.V. Kirilova Challenging Transactions in Cross-Border Bankruptcy: Foreign Experience and Its Use in Russian Law The need to determine the applicable law and the competence of
courts makes challenging transactions one of the most complicated
aspects of cross-border insolvency. In search of the optimal model
of regulation of this issue in Russia, it is useful to study the legal
framework and law enforcement practice in foreign legal orders.
The study concludes that there are a number of common features
in European and American legislation on cross-border insolvency,
which is explained by the implementation of the provisions of the
UNCITRAL Model Law in the legal acts of individual countries and
interstate associations. The analysis of Russian law enforcement
practice demonstrates that in the absence of proper regulation,
Russian courts also rely on the principles and concepts established
in international practice when considering cases on challenging
transactions in cross-border bankruptcies. This, however, does
not negate the need to create a regulatory and legal framework for
cross-border insolvency at the national level in order to increase
legal certainty and establish a more uniform judicial practice. In the
process of development of the relevant legislation it is necessary
to take into account the relevant experience of foreign legal orders.
Keywords:
cross-border bankruptcy, contestation of transactions, foreign element, lex fori concursus, lex causae, lex rei sitae, vis attractiva concursus
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