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Russian law: theory and practice №2 - 2016
From the Editor-in-Chief С. 3
СONSTITUTIONAL LAW AND JUSTICE
The article is devoted to the issues of human rights protection and regulation in Russia, looking at regional aspects through the prism of Constitutional Courts of republics and Charter Courts of some other subjects of the Russian Federation. This article is one of the series on legal research on constitutional justice in Russia and shows only some aspects of the matter.
Key words: regional constitutional justice, human rights protection, Constitutions (Charters) of Russian republics/regions.
Even though the BRICS countries share a number of similarities in terms of their position in the international economy, there is still no significant dialogue among these States with respect to tax treaty policy. There are, however, several reasons to believe that these countries could benefit from such a debate. In the context of the BEPS Project discussions, these reasons become even clearer, being relevant to point out three features of the Project that make the interaction of the BRICS countries essential.
Key words: BRICS countries, BEPS Action Plan, Brazilian Tax Law, International Tax Law
ECONOMY, BUSINESS AND LAW
The article considers factors of contemporary competition in the external markets between the main centers of economic production. The monopolism of the manufacturers has a significant impact on the present state of the Russian competitive environment. However, over recent years there has been a certain breakthrough in the sphere of competition and restriction of business entities’ monopoly position. The author identifies the increasing unfair competition in various market segments as an internal threat to the Russian national security.
Key words: monopolism, unfair competition, national security, the state of security, threats to security, modernization of economy.
The article analyzes the Russian law and the provisions of Resolution No.25 of the Plenum of the Supreme Court of the Russian Federation “On Judicial Application of some Provisions of Section I, Part I of the Civil Code of the Russian Federation” concerning civil legal communities. It deals with the first official interpretation of the term “civil legal community”, adds more types of such communities to the list presented in Article 181.1 of the Civil Code, and provides their classification. The author underlines that the issue of civil legal communities in Russia can be explored on the basis of similar structures in European legal systems, namely, legal communities, which have received doctrinal rationale. Nevertheless, legal communities representing a broader legal structure are not identical to civil legal communities. In this article the author defines civil legal communities and describes their characteristics.
Key words: civil legal community, legal community, decisions of meetings, civil legal community of part owners.
The article is focused on various levels of regulating legal relationships in corporate law. Those range from legislative provisions—either mandatory or default—to corporate by-laws and shareholders agreements. The paper comes to the conclusion that the legislators should set forth default rules applying to any corporate form except public companies, the latter being governed by mandatory rules. The author questions the possibility of using model company charters for various corporate forms. The paper also considers various types of shareholders agreements. The conclusion is made that there should be limits set on contractual regulation of legal relationships in corporate law.
Key words: corporation, legal relationships in corporate law, legal relations arising out of membership, corporate law, charter, company by-laws, corporate charter.
The article is devoted to the characteristics of different types of financial markets and the search for the definition of the financial market in general. The authors are trying to answer the question about the necessity of the unified financial market in the Russian Federation under the supervision of the megaregulator — the Bank of Russia. The article defines segments of the financial market, classifies financial markets, analyses the demand in creating unified rules for them, and analyses the balance of state regulation and self-regulation in this sector.
Key words: Russian financial market, market of financial services, investment market, market of banking, mega-regulator, financial service, self-regulation, investment activity.
The article is devoted to the delivery contract. The author proves its value as a means of providing goods quality and safety under civil law. A lot of attention is paid to the techniques of estimating the goods quality stipulated by the contract. The delivery contract is considered from the viewpoint of technical regulation as well as national and international standards.
Key words: delivery contract, goods quality, goods safety, sample (standard sample), technical description, international standard, national standard, technical terms, technical regulation.
The subject of this paper is the examination of innovations in the Russian legislation on jurisdictional immunity. The objective of the paper is to analyze jurisdictional immunity concepts, provisions of international treaties in this field and practice of various states in jurisdictional immunity restriction. The methodological basis for this research consisted of systemic, comparative approaches and methods of analysis. The academic novelty of the paper stems from the coming changes in the legal regulation of these issues in Russia. The functional jurisdictional immunity theory has been forming in Russia since 2015. Federal Law No.297-FZ “On Jurisdictional Immunity of a Foreign State and a Foreign State’s Property in the Russian Federation” and Federal Law No.393-FZ of 29 December 2015 “On Amending Certain Legislative Acts of the Russian Federation due to the Adoption of Federal Law on Jurisdictional Immunity of a Foreign State and a Foreign State’s Property in the Russian Federation” entered into force on 1 January2016. The results of the study make it possible to generalize the requirements of the Russian legislation in the field of restriction on the jurisdictional immunity of a foreign state and the legal grounds for consideration of disputes in this field by Russian courts.
Key words: jurisdictional immunity, a foreign state, immunity from legal process, immunity from interim measures, immunity from enforcement, sovereign power authorities, the Russian legal system, the reciprocity principle, functional immunity, waiver of immunity
Securities create a different risk distribution among the participants of civil circulation from that implied by civil law. There are general rules of risk distribution for all kinds of securities. As for uncertificated securities, which form the securities market, there are additional rules of risk distribution.
Key words: risk distribution; securities circulation; accounting of rights to securities; joint-stock company management; mortgage collateral management; mutual investment fund management.
The article is dedicated to the problems of protecting the securities market by criminal law. The author shows that shortcomings are not confined to the criminal law. The article reveals vagueness of the content of the securities market term in legal science and its legal uncertainty.
Key words: securities market, verification of rules effectiveness, the liveability of rules, criminal law, crimes committed on the securities market, criminal liability.
The current article studies the history of comparative law in Russia and presents its periodization. Alongside with the needs of comparativism in the field of state and law, the author substantiates the shift of the development stages and content of the comparative law science. The natural competitiveness between Western and Eastern civilizations, promoting the world progress development, is illustrated. Besides, the author formulates the scientific-practical connection/link between the comparative law and common theory of national security. The further perspectives of juridical comparativism in Russia are considered.
Key words: comparative law, juridical comparativism, theory of national security, globalization, Russian policy, Western and Eastern civilizations, Russian state and law development perspectives.
The article focuses on the reform of legal regulation of the insurance relationships with participation of both consumers and economic entities. The acts passed in 2012 and 2015 have radically changed the existing standards. Now a more well-balanced approach to misrepresentation and non-disclosure prevails in English law. These changes can serve as a basis for elaborating proposals for reforming the Russian legislation.
Key words: insurance, consumer, misrepresentation.
The present article focuses on the problem of implementation of “foreign bribery” norms of the 2003 UN Convention against Corruption into the national criminal law. The author argues that territorial enforcement of these norms gives rise to different problems in the context of the rules of criminal jurisdiction. In most of such cases, the state has no extraterritorial criminal jurisdiction, only territorial one. In this case, neither passive personality principle nor protective principle of criminal jurisdiction nor universality principle is applicable. Territorial enforcement of “foreign bribery” norms is also problematic and not practical. Unfortunately, there is no solution in this situation, but it is obvious that such a solution is beyond the criminal law.
Key words: criminal law, enforcement of criminal legislation, international criminal law, anti-corruption enforcement, implementation, bribe.
Continuous high rate of imprisonment combined with relatively long sentences, problems with recidivism (incl. among young) and low level of socialization after release ask for re-examining the current prison philosophy and measures in community building. The paper brings out the findings of the underlying survey and offers an experimental model as a ground for alternative solutions for current practices. The proposed model of (re)socialization (SIG) is treating prisoners as subjects with special demand, derives from the findings from the Estonian prison system and post-release framework against recidivism. The underlying research, which involved more than 600 persons from inmates to experts, showed that new penal facilities have to go along with modern philosophy concerning prisoners as an idle social group. The key factor in their (re)inclusion into society is the provided access and preparation to employment and legal income, opportunity to learn required skills and encouragement from the system with special attention to a person and case.
Key words: prison, idle groups, social inclusion, labor market, special persons.