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Russian law: theory and practice №1 – 2018
The article analyzes a range of different alterations of legislation on the Constitutional Court of the Russian Federation, which have been carried out since 2010 and affect its competence. The author discloses new powers of the Constitutional Court to decide whether the decisions of international institutions for the protection of human rights and freedoms can be executed in the Russian Federation and also to review the constitutionality of issues proposed for the All- Russian referendum. The author describes perspectives of further development of competence of the Constitutional Court.
Keywords: constitutional justice, the Constitutional Court, constitutional courts of federal entities, legislative alterations, competence, authorities, amendment of the Constitution, decisions of international institutions, to check the constitutionality of judicial practice.
The article considers basic foundations and principles of the market economy that underpin the economic organization of the most countries, including Russia. Many European states are known not to regulate and fix the said principles into their basic laws. These principles are presumed without any constitutional “recording”.
Keywords: legal principles, constitutional economy, freedom of entrepreneurial activity, freedom of contract, free movement of entrepreneurial activity objects, freedom of competition
This article is in part an update of an earlier article in this Journal, “The Constitutional Framework of National Interests Ensurance in the United States: A Russian Comparison, RUSSIAN LAW: THEORY AND PRACTICE 7 (2017). However, the primary focus of the article is on the imposition of sanctions against the Russian Federation in both the Obama and Trump Administrations. The article discusses the power of Congress to legislate sanctions and the power of the President both to impose sanctions and to implement the sanctions imposed by Congress. It explains that for a number of reasons relating to the structure of the American constitutional system, the President has the final authority to determine whether new sanctions will be imposed and whether existing sanctions will be strongly enforced. With the transfer of power from the Obama Administration to the Trump Administration, the role of sanctions in American relations with Russia has changed significantly. While Congress is strongly disposed to enact sanctions against Russia, as reflected in the enactment of the Countering America’s Adversaries through Sanctions Act (CAATSA) in August 2017, the President is not disposed to use sanctions against Russia and is seeking to improve relations between the United States and Russia. It is thus fair to say that the development of future relations between the United States and Russia will take place without a regime of American sanctions against Russia.
Keywords: 18th century American Constitution, Presidential power over foreign affairs, broad authorization of Presidential power to administer and enforce legislation in the area of foreign affairs, Presidential disapproval of legislation, the “political question” doctrine and foreign affairs, sanctions against Russia during the Obama Administration, agreement between Congress and the President on sanctions against Russia during the Obama Administration, sanctions against Russia during the Trump Administration, Countering America’s Adversaries Through Sanctions Act (CAATSA), signing statement of President Trump, report on Russian officials and “oligarchs” by the United States Department of Treasury, position of President Trump on sanctions against Russia.
The article focuses on delineation between simulation and avoidance of the law in tax law theory and practice. Defining a sham transaction is central to civil law. Avoidance of the law must be strictly distinguished from the violation of the law (agere contra legem), although both practices release the same effects.
Keywords: sham transactions, tax law, covered transactions (verdecktes Rechtsgeschдft), “abus de droit” (abuse of the law), avoidance of the law, Roman law (fraus legis), violation of the law (agere contra legem).
The subject of study is the relation between legislation on taxes and fees with bankruptcy legislation. The chosen theme is seen sporadically in the analysis of certain problems in the framework of regulation of legal relations arising in bankruptcy cases, with virtually no comprehensive work devoted to the peculiarities of fulfillment of tax obligations in bankruptcy cases by the debtor’s property provided as collateral in the manner prescribed by Article 73 of the Tax Code of the Russian Federation. Our study will focus on public relations arising in the performance of the organization by the bankrupt’s tax obligations at the expense of the property provided as collateral. The author examines such aspects of the topic as the development of legal thought on the pledge of property as a way of ensuring the fulfillment of tax obligations and the application of collateral property of a debtor’s bankruptcy in the provision of public requirements under the laws of other states. Special attention is paid to the need to ensure equal rights of parties to the bankruptcy proceedings, whose rights are secured by property of the debtor. The author makes an attempt to overcome the existing gap in the legal regulation of the status of the tax authority as a mortgage lender. The relevance of the study lies in the need for understanding changes in the bankruptcy legislation. On the one hand, the 2002 Bankruptcy Law places claims for payment of mandatory payments in a common queue with creditors on private law grounds. Thus, the previously existing preference for government claims was eliminated. On the other hand, the equality of the rights of creditors and the tax authority is incomplete, since the possibility of establishing the requirements of the tax authority in the registry as secured property is formally excluded. The author expresses recommendations on improving tax legislation and bankruptcy legislation providing fiscal interest of the state.
Keywords: tax, bankruptcy, insolvency, authorized agency, the lender, the security of property, the register of creditors, priority of claims.
ECONOMY AND LAW
The article analyzes some features of legal regulation of entrepreneurial activity in the conditions of Russian economy modernization and main elements of modernization. The purpose is to define the features and prospects of entrepreneurial activity regulation. Research methods: there were applied the general scientific dialectical method of cognition and the private-science methods following from it: sociological, logical, system-structural, technical-legal and the method of legal modelling. Results: in the conditions of the development of the Crowd Economy, the available legal means are quite capable of providing the legal regulation of this phenomenon. Conclusions: on the basis of the study, there were drawn the conclusions on the impossibility of modernizing the Russian economy without effective regulation of entrepreneurial activity, taking into account the new development paradigm.
Keywords: entrepreneurial activity, modernization, the Crowd Economy, paradigm.
The article deals with the concept of a financial organization and a financial corporation in Russian legislation. The authors compare legal norms of the Civil Code of the Russian Federation with the legal norms of the federal laws in order to outline the reasons for special regulation of financial organizations and financial corporations as well as to build uniform understanding of the financial organization.
Keywords: financial organization, financial corporation, credit organization, bank, microfinance organization, the Bank of Russia, investment funds, special purpose vehicles.
The article dwells upon the national standardization in Russia, showing its role in legal provision of goods quality. The author reviews changes in the documentation system of the national standardization system in Russia.
Keywords: goods quality, national standardization, objectives and tasks of standardization, principles of standardization, documents on standardization.
The article considers substantial and procedural innovations of entrepreneurial legislation connected with the responsibility of controlling persons.
Keywords: insolvency, bankruptcy, creditor, debtor, controlling person, responsibility.
The article focuses on controversial issues of recovery of damages resulting from mala fide actions on behalf of the bankruptcy manager. The author gives an example from economic practice and analyzes conditions for civil liability of the bankruptcy manager for the damage inflicted to the supplier in case of bankruptcy. The author makes conclusions and gives some recommendations.
Keywords: debtor’s insolvency, bankruptcy creditor(s), debtor, mala fide actions of the bankruptcy manager, damages, grounds and conditions for liability
Currently, the issues of realization of the Participation Plan of the Deposit Insurance Agency (hereinafter referred to as “the Agency”) in the implementation of measures preventing banks bankruptcy cause some difficulties in practice. Legislative requirements regarding the preparation and implementation of this document, in particular, the determination of forms and amount of financial assistance of the Agency and the Central Bank of the Russian Federation to a particular bank, are often not taken into account. This article focuses on the analysis of this problem.
Keywords: bankruptcy of banks, measures preventing banks bankruptcy, Participation Plan, Deposit Insurance Agency.
At present, there is a substantial number of data proving the spread of radical ideas in conditions of isolation from the society. A series of notorious terrorist acts is known to have been committed by people recruited for that in prisons. Taking into account that imprisonment will continue to be applied as the main type of punishment for a long time to come, it is necessary to make a decision to keep such convicts separately and apply special measures of deradicalization. Currently, Russia has no such institutions and programs. The author has personally researched the problem among people convicted of the said crimes and among officers of the penitentiary system dealing with terrorists and extremists and makes a conclusion about the reasons for primary radicalization in the Russian penitentiary system and how the level of education and competence of the personnel can influence the correction of convicts. The author puts forward some proposals concerning deradicalization programs and main ways of their implementation.
Keywords: prisoners’ radicalization; deradicalization; judicial impact