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Russian law: conditions, perspectives, commentaries
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4–30
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The article reveals the regulatory, theoretical and practical foundations of developinga corporate liability category. The essence of corporate liability lies in the fact that itarises in relative corporate relations associated with the management of legal persons.The normative basis for corporate liability performs self selection in p. 1 of Art. 2 of theCivil Code of the Russian Federation corporate relations as an independent variety ofcivil law relations associated with participation in corporate organizations or with theirmanagement. The normative basis of corporate liability is also the special nature of legalsources providing for corresponding liability: these are the norms of legislation on legalentities, corporate acts, and a corporate agreement related to the management of a legalentity. The theoretical basis for identifying the corporate liability category is the relativity ofcorporate management duties established by corporate law, the violation of which causesharm and the violation of the subjective civil rights of other participants of civil turnover.The article reveals the practical grounds for identifying the corporate liability category, which are expressed in the absence of uniform judicial practice in resolving several keyissues for the prosecution of participants of corporate relations. These include issues ofcorrelation of norms on corporate, tort, contractual liability, on the liability of controllingpersons in bankruptcy, on public liability of a legal entity. Also unresolved in practiceare questions about determining the legal nature of the liability of controlling personsin bankruptcy; on the content of the fiduciary duty to act in good faith and reasonably inthe interests of a legal entity. A special set of principles of corporate liability is proposed(the principle of separate property liability, principles of specialty, personalization anddifferentiation) and the reasons for their establishment. The purpose of the article is tojustify the need to develop a separate category of corporate liability in civil law. Basedon the study of the Russian doctrine and judicial practice a number of conclusions andproposals were prepared regarding the essence of corporate liability and necessity ofits allocation in a separate civil category. The basics of the study are general methods ofstudy (analysis and synthesis, induction and deduction, system analysis) and methods oflegal science (methods of comparative law, literal, systematic, teleological and historicalinterpretation of legal norms). For citation: Gutnikov O.V. (2019) The Grounds for Development of Corporate Liability Category in Civil Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 4–30 (in Russian) DOI: 10.17323/2072-8166.2019.4.4.30 |
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31–51
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The article analyzes one of the central institutions of Russian tax law — alteration of the time limits for the payment of taxes. The right of the taxpayer to alter the execution of tax obligations, on one hand, demonstrates the desire of the legislator to ensure a balance of public and private interests in the implementation of tax regulation, and on the other hand, must guarantee the full implementation of the fiscal function of tax law. The fulfillment of the constitutional obligation to pay the established-by-law taxes involves the payment of taxes not only in full, but also on time. Alteration of the time limits doesn’t cancel the existing tax obligation and doesn’t create a new tax obligation. Having exercised the right to alter the time limit for fulfilling tax obligations, the taxpayer is able to pay tax at a later date than established by the legislation on taxes and fees, and at the same time not be held liable for violation of tax legislation. In order to maintain a balance of public and private interests in the tax sphere, a taxpayer’s right to alter the time limits for the payment of taxes is compensated by his obligation to pay in established cases a percentage that compensates for the damage caused to the fiscal interests of the state and municipalities in the exercise of this right. The article analyzes the general procedure for exercising the taxpayer’s right to alter the tax payment time limit established in the Tax Code of the Russian Federation (Chapter 9) and the acts of the Federal Tax Service adopted in accordance with it. Special cases of the realization of this right are also considered: when paying indirect taxes on goods imported into the territory of the customs union (in this case, the relevant norms of customs legislation are applied) and when altering the terms of payment of taxes credited to regional and local budgets (in this case, normative legal acts of constituent entities of the Russian Federation and municipalities). The article presents main forms of exercising the taxpayer’s right to alter the terms of tax payment (deferral, installment plan and investment tax credit) and tax and customs authorities with the authority to make appropriate decisions. Particular attention is paid to the issues of protecting the fiscal interests of the state in case of termination of legal relations of altering the terms of payment of taxes (for example, protecting fiscal interests in case of early termination of the investment tax credit agreement). For citation: Kozyrin A.N., Yalbulganov A.A. (2019) Alteration of Time Limits of Performance of Tax Liability in the Russian Tax and Customs Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 31–51 (in English) DOI: 10.17323/2072-8166.2019.4.31.51 |
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52–71
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The article investigates issues relative to the unique experiment carried out today in Russiain unifying the collection of all obligatory payments. It analyzes legal aspects of thisapproach and presents variety of methods for collecting obligatory payments. Notionsof budget revenue, sources of revenue are consistently considered. Special attention ispaid to the forms and practices of tax and other obligatory payments farming. The articleconcludes that budget legislation actually specifies various fiscal charges as sourcesof budget revenue. It describes that the real source of public revenue is assets and resourcesbeing the national wealth. Historical examples show that despite the generally accepted denial, tax farming is a normal method and can be applied along with state regalia(monopoly) and tax administration. The cases when tax farming is transformed intoa state monopoly or excise and vice versa are not rare. Tax farming has continued to thisday referred to as parafiscal charges, quasi taxes. The number of such obligatory paymentsis constantly increasing and their legal regulation is causal. This situation creates aproblem of uncertainty in the tax burden. But the tax farming as the method of mobilizingof public income can be useful at the same time. The negative attitude about tax farmingis connected with the historical prerequisites and related to the large-scale abuses thathave occurred and their consequences. The danger is in the huge power that tax farmingcontractors can obtain, which happens when the buy-outs are centralized across a regionor state. The article proves that the risk of abuse increases significantly with large concessions,and is much lower with small concessions, the latter are often more convenientin terms of organization than excise or direct taxes. Moreover, small (local) purchasescan perform the task of controlling and regulating any economic activity, developing newtypes of entrepreneurship, and are also useful for solving other public tasks. For citation: Komyagin D.L. (2019) Tax Farming — pro et contra. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 52–71 (in Russian) DOI: 10.17323/2072-8166.2019.4.52.71 |
Discussion club
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100–121
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The article analyzes the approaches to study the phenomenon of legal symbols in thescience of law. The author pays attention to the fact that the existing approaches tostudy the symbols restrict the scope of their comprehension to the analyzing the legalforms within the historical-legal and technical-legal paradigms. The historical-legalapproach restricts the scope of the respective research works to the issues of the legalform building, where the notion of a ‘symbol’ is correlated to the notion of a ‘custom’.Here, beyond the historical context, the category of legal symbols frequently loses all andany legal significance and cannot be considered as the corresponding legal institution.Within the scope of the technical-legal approach symbols are considered just as asupplementary tool of the legal regulation or a tool of the legal technique. These methodsare unable to unfold the whole nature of symbols and do not allow us to solve the issue oftheir legal institutionalization. The author gives critical assessment of those researchers’considerations on the legal symbols, which are ambiguous in terms of the terminologicalborders of this scope, warning about the risk of penetration of questionable theoreticalstructures into the positive law. The research applies the institutional-legal approach tosymbols supported by induction through the search for the objects, which can be includedinto the notion of a ‘legal symbol’ as an intersectional legal institution with consideration ofthe important characteristic features of this concept, mentioned in the general scientificconcepts and the science of law, as well as with consideration of the terminologicalpractice expressed in the acts of law. The author’s definition of the legal symbols withinthe scope of the institutional-legal approach is based on the complex of the followingsignificant features: conditional character (conventionality); multiple meaning; specialvalue; exclusive legal correlation with the bearing subject; uniqueness; stability; legalmediation; 8) external objectification in a special form. The mentioned features allow usto distinguish the legal symbols from a broader category of social symbols, as well as todemarcate them from the adjacent sign phenomena with the legal importance. For citation: Maltsev I.V. (2019) On the Notion of Legal Symbols within Scope of the Institutional Legal Approach. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 100– 121 (in Russian) DOI: 10.17323/2072-8166.2019.4.100.121 |
Law in the modern world
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122–143
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The doctrine of international law pays a lot of attention to the formation norm of customary international law. At the same time, it is quite rare to find studies on their evolution and the end of existence. In this article, therefore, based on a dialectical approach, the use of scientific research methods, and such private-scientific methods as a comparative legalmethod, as well as methods of legal modelling and legal forecasting, the results of the study of the evolution norm of customary international law, as well as their extinction,are presented. In the case of the established norms of customary international law, their evolution provides for a stage of their qualitative change, development and isconditioned, first of all, by the needs of the development of inter-State relations.Evolution is accompanied by clarification of the elements of such norms. At the sametime, the emergence of a new norm is not possible without violations of existing ones, andoffenders, deviating from the established norms, with international legal responsibility, atthe same time must explain to other States the reasons for such behavior. This practiceis mainly related to the dispositive norms of international law. In order for a new normof customary international law to be formed, it is necessary that the deviation from theprevious norm be massive, initially local and, in the future, universal. The criteria for theformation norm of customary international law are applicable to assess the changes thatare taking place. The main factors that may influence the evolution norm of customaryinternational law include the emergence of a non-existent rule of amended new rule inthe laws of states, the international treaty, and the new international soft law. Codificationand the progressive development of international law contributed to the evolution normof customary international law. It is important to note that, in the absence of the needs ofsocial development, as well as appropriate practice, the norm of customary internationallaw dies. In this case it is possible to create fundamentally new norms of customary international law, and in the future their evolution. For citation: Romashev Yu.S. (2019) Evolution and Cessation of the Existence of Customary Rules of International Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 122–143 (in Russian) DOI: 10.17323/2072-8166.2019.4.122.143 |
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144–163
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The author of the article considers two facets of practical implementation of the subsidiarityprinciple in the EU — legal and political. Talking about the first facet, the author revealsthe tendencies in quality development (modification) of assessment of compliance withthe subsidiarity principle in EU legislative acts given in decisions of the European Court ofJustice. Turning to the second facet, the author analyzes the role of national parliamentsof the EU member states in the process of ensuring respect for the subsidiarity principlein the EU legislative process. The author also makes it clear that the principle of subsidiarityis implemented under EU law not just though its routine application by various institutionsbut as a result of their consistent interaction. The inter-institutional dimension of thepractical implementation of the subsidiarity principle is most relevant to the dynamismand blended political and legal nature of this principle. The author stresses that nationalparliaments may get a wider recognition of their subsidiarity concerns by the EU legislativeinstitutions not through triggering “yellow” and “orange” cards procedures appliedin regards to draft legislation already issued by the relevant EU institutions but rather viadeveloping a political dialogue with the EU institutions at early stages of the EU legislativeprocess when it is possible to take care of the subsidiarity principle without diminishingthe political influence of the EU legislative institutions. For example, national parliamentsmay gain political weight in the European law making through encouraging the Commissionto leverage the so-called “green card” procedure. Complemented by the “yellow”and “orange” card provisions, it forms a three-element subsidiarity review mechanismperfectly capable of dealing with subsidiarity concerns of national parliaments at variousstages of the EU law-making process, thus transforming the chambers from wardens intopartners working together with the Commission to reshape EU legislative proposals forthe sake of better regulation. For citation: Pimenova O.I. (2019) Twists and Turns in Implementation of Subsidiarity in the European Union. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 144–163 (in Russian) DOI: 10.17323/2072-8166.2019.4.144.163 |
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164–184
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In the article legislative regulation of the digitalization process in France as well as therelevant legal doctrine are analyzed. A research objective is a determination of the maincharacteristics of this process so as to compare with similar processes in the RussianFederation that the author does by means of general legal and comparative legal methods.The present period of the digital technologies application in France is connected with theplatform economy and uberisation having an impact on a legal status of citizens and theirrelationship with administration. Active development of the modern legislation devotedto the digital state is connected, firstly, with settlement of a movement of data. Theprinciple of openness by default mentioning the public data (data created by authorities)and general interest data (data on administrative contracts, subventions) is established.Authorities are obliged to publish these data online in the open data format. Secondly, thedigital State takes care of regulation of the human rights protection in digital society; it isbased on the principle of the Internet neutrality. Strengthening of consumer protectionis promoted by data portability and platform loyalty which suppliers of Internet servicesare obliged to provide. As the European General Data Protection Regulation 2016/679was adopted, it is implemented in the French legislation by means of a big number ofthe norms including specifying procedures of protection of the personal data rightsowners. Thirdly, access to digital technologies is differentiated. The French legislationwas enriched with the right to the Internet, but also provided this right with obligationsof the State, having introduced the state financial aid concerning payment of Internetservices costs by analogy with utility costs. The main conclusion of the conductedresearch consists in complexity of the legislation reforming for rapid implementation ofdigital technologies to the most different spheres of life. At the same time France is closelyinvolved in the common European process and aimed on the international cooperationin this sphere. Among comparative legal key reference points are useful to Russia, forexample, is one concerning personal data protection. With that the research showed thatthere are spheres in which Russia is quite well developing (for example, digitalisation ofpublic services). For citation: Talapina E.V. (2019) Digital Transformation in France: Legal Innovations. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 164–184 (in Russian) DOI: 10.17323/2072-8166.2019.4.164.184
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185–207
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The article, using the example of France, a country with a rich democratic historyand tradition, examines the process of transformation of the concept and the role ofdemocracy in the digital revolution. In this context, the object of the study was new ideasin assessing democracy and their refraction in the legislative activity of the parliamentand implementation by the executive branch, as well as their impact on the rights andfreedoms of the individual. The purpose of the work is to find an answer to the question ofhow traditional forms of democracy and their perception in the public mind correspond tothe realities of our days. This defines its main tasks — identifying the effects of digitalizationon democracy, their impact on democratic institutions and processes. To implementthe tasks set, both general scientific research methods (logical, historical, systemic)and special methods were used: formal legal, comparative legal methods, and theinterpretation of law. For specialists who advocate the concept of “digital democracy”, itsimplementation opens up new prospects for the establishment of true democracy, wheredirect forms of its implementation, citizen participation in decision-making at all levelsof government are expanding. There are other points of view, the essence of which is todeny the significant effects of digitalization on democracy. Moreover, its State reforms inFrance attach particular importance to the “figure”, which, according to their initiators,will generally strengthen the country’s democratic institutions. The figure appears in thetitle of the work of the working groups on the parliamentary reform, in the laws adoptedby it, which allocated and subjected to legal regulation of areas of activity, especially those affected by digitalization. negative consequences are emphasized: cybercrime,dehumanization of society, human exclusion. The article outlines a number of problemsthat digitalization poses for democracy and its main subject and object — the person.Indeed, digitalization opens up unprecedented opportunities, but does it fundamentallychange the nature and nature of the relationship between “managers” and “governed”(L. Duguit). All these issues were the subject of analysis in this article. For citation: Pilipenko A.N. (2019) France: to Digital Democracy. Pravo. Znurnal Vysshey shkoly ekonomiki, no 4, pp. 185–207 (in Russian) DOI: 10.17323/2072-8166.2019.4.185.207 |
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208–221
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It is commonly understood that nature has the biggest value for humanity. The article examines and analyzes the legal framework for nature conservation and issues related to state institutions including the judiciary’s role in protecting and preserving the environment and its individual objects. Also article analysis how courts contribute to the highest human values — the protection and enhancement of nature while administering justice. On nature and its resources depends what kind of economy we will have and develop in the future on state and global scale. While speaking about the economic issues O. Blanchard states that it is also important for everyone to know not only what to expect today, but what to expect in the future too. Since the nature and its objects are especially important human value for their protection the state institutions, inspections and judicial authority are mobilized as The Constitution of the Republic of Lithuania states that judicial authority works to protect the human rights. It means that the judicial power as well as other two powers is also responsible for nature protection as it is a right of all humans. The work also analyzes the statistics of nature protection and the executive’s contribution to the protection of nature. The topic is relevant because it examines the issue concerning not only a particular area of our social life, but also each one of us. In international and national acts of nature protection and in final decisions of courts reinforces the legal imperative of providing a regulatory framework for the protection of nature and also establishes the right for all subjects to use natural goods. This inevitably affects not only each one of us but also the whole society and the state. Although the topic of environmental protection is not basically new, there is no detailed examination about current legal framework and judicial significance for the protection of nature in Lithuanian researches. That is why this issue is not fully investigated and it can manifest only by the individual phrases without a specific study conclusions. For citation: Danishauskas G. (2019) Legal Basis of Protection of Nature and the Role of Courts while Protecting Nature in Lithuania. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 208–221 (in English) DOI: 10.17323/2072-8166.2019.4.208.221 |
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222–245
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Genuine nature of Islamic Law as an independent legal system manifests itself clearlyin its sources. During many centuries the Islamic legal doctrine (Fiqh) was playing thisrole which was replaced by legislation only in 19th century. But till now Fiqh is one ofthe sources of law in Arab countries. The continuing islamization of their legal systemsincludes codification of Islamic legal doctrine which acquires the role of material (historic)source of law. This process relies on recognition of Sharia as a source of legislation byconstitutions of many Arab states. Together with it ordinary legal acts often stress thattheir contents is also derived from Fiqh. Such feature mainly concerns personal statusrelations based in majority of Arab countries on legislation derived from views of Islamiclegal doctrine. At the same time this doctrine is playing the role of official (judicial) sourceof contemporary law in the mentioned countries. For instance, in Saudi Arabia Fiqh is stillthe prevailing source of law compared with statutory acts. In other countries the doctrinestatus as a judicial source of law is fixed officially. It refers not only to private law butcriminal legislation as well. Many legal norms could not be realized without applying Fiqhprovisions. In some Arab countries interpretation of legal norms includes appealing toSharia. Islamic legal doctrine is playing active role as subsidiary source of contemporary law, first of all in private branches of legislation. Such legislation recognizes Sharia, itsprinciples or different schools of Fiqh as subsidiary source. This covers not only personalstatus legislation which is based totally on Islamic provisions but also civil codes ofsome Arab countries which are influenced not by Sharia but by European legal culture.Commercial, tax and judicial procedure acts also recognize Islamic legal doctrine as asubsidiary source of law. In Sudan there is a unique situation because in this countrySharia and Fiqh are fixed as subsidiary source of law for entire legal system excludingcriminal legislation. For citation: Syukiyainen L.R. (2019) Fikh as Source of Contemporary Law in Arab Countries. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 222–245 (in Russian) DOI: 10.17323/2072-8166.2019.4.222.245 |
Book review
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246–253
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Review of a book by Tikhomirov Yu. A. Juridical Prognosis. Moscow: Institute of Legislationand Comparative Law under Government of Russian Federation, 2018. 166 p. (in Russian) Citation: Shablinsky I.G. (2019) Vector of the Legal Development. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 246–253 (in Russian) |
Russian law: conditions, perspectives, commentaries
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72–99
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The subject of the research in this article is the legislative norms defining the boundariesof judicial review of the legality of the exercise by authorities and officials of the publicadministration of discretionary powers, first of all, clause 3 of part 1 of article 128 of theAdministrative Procedure Code of the Russian Federation (hereinafter referred to as CASRF). According to this provision of the law, the judge refuses to accept an administrativeclaim if “from an administrative claim for challenging a regulatory legal act, an actcontaining explanations of legislation and having normative properties, a decision or action(inaction)” of the public administration does not follow that this act, decision or act(inaction) violates or otherwise affects the rights, freedoms and legitimate interests of theadministrative claimant.” The purpose of the study is to prove that paragraph 3 of part 1of Article 128 of the CAS RF in the interpretation given to it by court practice, contrary tothe position stated by the legislator, does not simply unduly narrow the boundaries of judicialreview of the legality of those administrative acts that are discretionary, but also thepossibility of such verification. Based on dialectical, formal logical, historical, formal legalmethods of cognition, the method of interpretation of law and the results of the analysisof published materials of judicial practice, the Author concludes that paragraph 3 of part 1 of Article 128 of the CAS RF does not comply with the provisions of the Constitution ofthe Russian Federation and the need to exclude it from CAS RF. The proposed legislativemeasure will allow the CAS RF to be brought into line with parts 1 and 2 of Article 46 of theConstitution of the Russian Federation, which do not establish any barriers for the courtto verify the legality of the contested administrative acts. Fears that this step will have theimplication of the judiciary on the independence of the executive branch, as well as anexcessive increase in the judicial burden, seem to be groundless. Depriving the administrativediscretion of Article 128 of the CAS of the Russian Federation on Article 3 of paragraph3 of immunity from judicial control will bring domestic justice closer to Europeanstandards, will help “humanize” the Russian judicial system, strengthen the effectivenessof judicial control over the legality of administrative activities and, consequently, increasepublic confidence in public authorities. authorities and their representatives. For citation: Solovey Y.P. (2019) Discretionary Nature of Administrative Act as a Circumstance Precluding Judicial Review of its Legality. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 72–99 (in Russian) DOI: 10.17323/2072-8166.2019.4.72.99 |
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