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Russian law: theory and practice №1 – 2017

TABLE OF CONTENTS

  • From the Editor-in-Chief С. 5-6

CONSTITUTIONAL LAW

  • Sedler Robert Allen,

    The Constitutional Framework of National Interests Ensurance in the United States: a Russian Comparison С. 7-31

    Sedler Robert Allen Distinguished Professor of Law Wayne State University Detroit, Michigan, U.S.A.

    This article discusses the constitutional framework of national interests ensurance in the United States under the 18th century American Constitution and makes some comparisons with the constitutional framework of national interests ensurance in Russia under the 20th century Constitution of the Russian Federation. The 18th century American Constitution reflects 18th century notions of checks and balances and separation of powers between the legislative, executive and judicial branches. There are specific powers allocated to each branch and some interactions between the branches. This applies to national interests ensurance as well. So, while Congress has the power to declare war, the President is the Commander-in-Chief of the Armed Forces, and there is some tension between these powers when the President takes action to commit the United States to armed conflict. So too, while the President has the power to enter into treaties on behalf of the United States, every treaty must be approved by a two-thirds vote of the Senate. The one exclusive power over foreign affairs that the American Constitution gives to the President is the power to recognize foreign governments, and Congress cannot interfere with that power.

  • Koudelka Zden?k,

    Dispute Concerning the Polish Constitutional Tribunal С. 32-41

    Koudelka Zden?k Associate Professor, Department of Constitutional Law and Political Science, Faculty of Law, Masaryk University, Brno, Czech Republic

    Poland is currently under criticism for an amendment of the Constitutional Tribunal Act passed by the new government majority party called Law and Justice (PiS). In 2015, the legislative change was adopted, which introduced an obligation for the Constitutional Tribunal to discuss an unconstitutionality of an act only in the presence of at least 13 judges, under the chairmanship of President or Vice President of the Constitutional Tribunal. An act is unconstitutional if two-thirds of the judges vote for it. The author compares this requirement with the adjustment in Bohemia, Moravia and Silesia in the past and present.

  • Udartsev Sergey F.

    Creation of a Fundamental Law: Design of a Constitutional Prototype by Public Consciousness С. 42-49

    Udartsev Sergey F. Doctor of Law, Professor, Director of Research Institution of Legal Policy and Constitutional Legislation of the KAZGUU University, Astana, the Republic of Kazakhstan

    The article considers the issue related to a historical search of public consciousness and practical application of mechanisms and means of the rule of law protection. The article gives different options of fixing and protecting the rule of law that were used even in ancient times (religious ideas and condemnation; formation of people’s consciousness in the process of legal and moral upbringing; appointed and elected officials as personified keepers of law; interpretation of law by Roman lawyers; protecting bodies of cosmic basics of the rule of law mentioned by Plato, etc.). The author proves that the way of social creation of modern constitutions is a historically long search for the most suitable form to ensure unity, stability and hierarchy of the legislation system.

TAX LAW

  • Vinnitsky Danil V., Kurochkin Denis A.

    Tax Compliance in a Globalized World: a Russian Perspective С. 50-66

    Vinnitsky Danil V. Professor, Doctor of Law, Head of the Department of Tax and Financial Law Ural State Law University

    Kurochkin Denis A. PhD Candidate, Lecturer at the Department of Tax and Financial Law Ural State Law University

    The article is devoted to the issues of improving tax compliance in Russia. The tax gap leads to the loss of the planned revenues to the budgetary system; therefore, the Russian Federation, as many other countries, is trying to give an adequate forecast of the possible tax gap and minimize the amount of the falling out revenues. To decrease the tax gap it is necessary to adopt a complex of measures such as improving: (1) access to information needed by tax administrations, (2) exchange of information between tax administrations of different countries (3) cooperative compliance and risk management. Thus, at present Russian tax law includes both traditional and modern forms of tax control that need to be developed in the following directions: (1) providing for the expanded electronic documentation circulation between the tax administration and taxpayers, (2) reduction of time and material costs of the preparation and submission of tax returns to the tax administrations, etc. The plan “On Improving Tax Administration” adopted by Decree of the RF Government of 10 February 2014 No.162-r is aimed at the optimization of the system of tax administration and creating the atmosphere of comfortable communication with businesses. The effective elimination of the tax gap requires coordinated and consistent application of the abovementioned measures taking into account the economic situation and the actual capacity of certain categories of taxpayers in regard to paying taxes.

  • Rakov Ilya A.

    Special Economic Zones in the Russian Federation С. 67-71

    Rakov Ilya A. Lecturer at the Department of Tax and Financial Law, Ural State Law University, Researcher at the BRICS Law Institute

    This article provides a focused review of special economic / tax zones legal regime in the Russian Federation. In particular, the author describes the Russian domestic special tax zones regulations, the aims for establishing special economic zones and their possible types. The article also analyses the issues of similarities and differences between the concepts of “tax haven” and “special zones”.

ECONOMY, BUSINESS AND LAW

  • Belykh Vladimir S.

    Reflecting on Domestic Economic Policy of the Russian Establishment С. 72-79

    Belykh Vladimir S. Professor, Doctor of Law, Head of Entrepreneurial Law Department, Ural State Law University, Yekaterinburg, Russia

    The article contains a critical analysis of the RF government’s Anti-crisis plan. The author makes some general conclusions and recommendations aimed at ensuring stable economic and social development. First of all, the author underlines that the idea of economic modernization is obviously not objectionable and doubtful. Therefore it is necessary to define its spheres, aims, and principles. So far, there are only declarations!

  • Makarova Olga A.

    Independent and Disinterested Directors in Russian Joint-Stock Companies С. 80-86

    Makarova Olga A. Doctor of Sciences (Law), Associate Professor Department of Commercial Law St. Petersburg State University, Russia

    The approval procedure for related party transactions has recently been amended in the revised version of Russia’s Federal Law “On Joint-Stock Companies”. The amendments effective from 1 January 2017 replaced the concept of an “independent director” by that of a “disinterested” one. This paper analyses the two concepts and their treatment in Russia’s legislation on joint-stock companies. The definitions of the disinterested director and the independent director are provided. The paper also analyses the issue of mandatory inclusion of independent directors in public companies’ boards.

  • Mazo Maria A.

    Reform of Interested Party Deal Regulation in Joint-Stock Companies С. 87-94

    Mazo Maria A. Candidate of Law, Master of Jurisprudence (Russian School of Private Law), Master of Comparative Law, Economics and Finance (International University College of Turin, Italy) Leading Legal Adviser of Corporate Relations Department

    The article focuses on the recent reform of interested party deal regulation in joint-stock companies. The author considers main amendments of Federal Law “On Joint-Stock Companies”, theoretical aspects of conclusion and approval of interested party deals, analyses the concept of the conflict of interests as a whole and proposes certain amendments in this respect.

  • Rogaleva Marina A.

    The Algorithm of Investor Rights Protection Action Classification at Stocks and Bonds С. 95-99

    Rogaleva Marina A. Independent Lawyer

    An algorithm aimed at classification of civil action proceedings can be developed. The elements of the legal action (cause of action, subject of action, litigants (plaintiff and defendant)) form four groups of features necessary and sufficient to form the basis of juridical classification of civil cases.

ENVIRONMENTAL LAW

  • Ignatyeva Inna A.

    Elimination of Accumulated Environmental Harm in the Arctic Zone of the Russian Federation: What Rules Should be Applied? С. 108-114

    Ignatyeva Inna A. Doctor of Law, Professor Department of the Environmental and Land Law, Law Faculty, Lomonosov Moscow State University, Russia

    The new legal norms on the elimination of accumulated environmental harm in the Law on Environmental Protection came into force on 1 January 2017. Now the basic legal concepts were defined in the legislation, related to the liquidation of the harm, the accounting treatment of objects of accumulated environmental harm, regulatory requirements to the implementation of the liquidation operations. But these rules are far from being exhaustive and integrated; there are many gaps in the legal regulation. At the same time, there is another legal regulation which is used for a number of objects in the Arctic. Thus, the new legislative regulation has given rise to many practical problems and issues, the answers to which should come as soon as possible in law additions, in the regulatory legal acts of a sublevel and also interpretations of courts.

COMPARATIVE LAW

  • Alekseenko Aleksandr P., Chengyuan Wei.

    Restrictions on Foreign Investment in Russian and Chinese Law С. 115-121

    Alekseenko Aleksandr P. LLM, Senior Lecturer of the Department of Civil Law Disciplines Vladivostok State University of Economics and Service

    Chengyuan Wei LLM, Manager for CIS and Baltic Angel Yeast Co., Ltd

    The major quantity of countries allows foreign investors to enjoy national treatment. But in some cases, for example, in order to protect national economic security, states use restrictive exceptions from national treatment. This article examines Chinese and Russian legislation on this issue. Based on the analysis of national laws, the classification of restrictive exceptions was made. The main criteria of restrictions division are territory; the sphere of economic activity; objects of civil rights which allowed as investments; corporate management and establishment of foreign invested legal persons. This article argues that Chinese restrictions on foreign investments are stricter than Russian ones. The authors conclude that restrictive exceptions from national treatment are necessary but only if they are justified.

  • Bazekov Asset,

    Mechanisms of Protection of Minority Shareholders under English Law С. 122-132

    Bazekov Asset LLM, Lancaster University, Practicing Lawyer Astana, Kazakhstan

    The article focuses on the mechanisms of protection of minority shareholders. The author tries to highlight the main remedies of protection of minority shareholders’ interests and evaluate whether they adequately protect the interests of minority shareholders.

  • Kareva Tatyana Yu., Sonin Vadim V.

    Cross-Border Insolvency of Individuals in Russian and Chinese Law С. 133-140

    Kareva Tatyana Yu. Ph.D. in Law, Associate Professor Civil Law and Civil Litigation Department, School of Law, FEFU

    Sonin Vadim V. Ph.D. in Law, Research Associate Constitutional and Administrative Law Department, School of Law, FEFU

    On the basis of the Russian and Chinese legislation, judicial practice and special literature, this article discusses the possibility of applying the provisions of the Federal Law “On Insolvency (Bankruptcy)” of 26 October 2002 to the Chinese nationals registered as individual entrepreneurs. The article also reviews the Chinese legal regulation and offers recommendations on the enforcement of court judgments on bankruptcy and collection of debts from the PRC nationals. The cross-border insolvency of the Chinese nationals encounters obstacles at three levels. Firstly, the awards of the Russian arbitration courts have not been practically executed in the PRC due to inadequate notification of the Chinese party in the case. Secondly, Chinese courts in principle are extremely reluctant in recognizing foreign judgments on bankruptcy, and such cases are exceptional. Thirdly, there is no personal bankruptcy institution in the PRC, while bankruptcy of individual private enterprises, close to it, is not applied in reality, and there are no legislative prospects for the personal bankruptcy in the nearest future.

ARBITRAL LEGISLATION

  • Kurochkin Sergey A.

    New Arbitral Legislation in Russia С. 141-150

    Kurochkin Sergey A. Candidate of Law, Associate Professor Department of Civil Procedure Ural State Law University, Yekaterinburg, Russia

    Since December 2013, Russia began working over arbitration enhancement. The new Federal Law on domestic arbitration adopted in December 2015, numerous amendments to legislation on international commercial arbitration, to the Civil Procedure Code of the Russian Federation and the Commercial Procedure Code of the Russian Federation became a result of intensive work. Drafting the amendments, the lawmaker took into account leading achievements of Russian and foreign jurisprudence as well as considerable experience accumulated since 1992 when the first “Provisional Regulations on Arbitration Courts for Economic Disputes Resolution” were adopted as a statute. The fruitful work executed by leading domestic experts entailed the new high-level Russian arbitral legislation.