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Russian law: conditions, perspectives, commentaries
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4–26
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In July 2019 a landmark event took place in Private International Law, associated withthe approval of the final text of Convention on the Recognition and Enforcement ofForeign Judgements in Civil or Commercial Matters. For more than 10 years The HagueConference on Private International Law has not introduced new conventions. Russiaactively participated in the final procedures and sent a governmental delegation to the 22nd diplomatic session of Conference mentioned to sign the final act of the session.The prospects for signing and ratifying the Convention by key participants of internationaltrade and by countries where civil relations are localized are still the questions of the future.The article presents an analysis of the provisions of the Convention and the possibilityof implementing international law into national legislation. In the Russian law there is noefficient system of fraud detection from the parties of civil or arbitral proceedings andcountermeasures to it for the court. The term “fraud” used in the Convention has nocomparable in the Russian legislation and case law if fraudulent acts of the party resultedin misjudgment came into force. Reviews of such judgment or retrial are practicallyimpossible. This weakness of the Russian law is truly sensitive in cases of recognition offoreign judgments obtained by fraud. Legal regulation vacuum can be caused by Russianaccession to the Convention which recognizes a possibility of defected judgments,but Russian court has no means of detecting these defected judgments, which throwsdoubts on the whole procedure and result of recognition and enforcement of foreignjudgments in Russia. In the present article the authors raise key challenging issues offinality of judgments and possibilities of their revision in future, point at non-readinessof the Russian law for accession to the Convention, at significance of this institution ofjudgments obtained by fraud and at inadmissibility of exception of this institution in caseof ratifying Convention. For citation: Barysheva K.A., Maksimov D.M. (2020) The refusal for recognition and enforcement in the Russian Federation of a foreign judgement obtained by fraud. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 4–25 (in Russian) DOI: 10.17323/2072-8166.2020.3.4.25 |
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26–43
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The effect of the norms of foreign family law is closely connected with the problem ofrestrictions relating to the action in Russia foreign law chosen by the parties or by thecourt and to be applied to family relations. Private International Law knows severalmethods that limit the effect of foreign family law. One of them is a public policy exception,which is enshrined in Art.167 of the Family Code. It generally meets modern standardsof Private International Law. At the same time, its application in practice does not give apositive effect. The purpose of the study: ensuring the correct and uniform application ofthe rules of Private International Law by courts in resolving family law disputes, protectionfrom undesirable consequences that the application of foreign family law may have to aspecific legal relationship. Achieving this goal is carried out by solving the following tasks:to determine public policy and its elements for the needs of Family Law regulation, toassess the role of the public order exception to application of foreign family law fromthe point of view of doctrine and law enforcement. Basic research methods are: formallegal analysis, comparative method. It is substantiated that in Private InternationalFamily Law public order did not receive a generalized description, the author analyzespossible reasons for not applying this rule, draws attention to the shortcomings of thecurrent wording of Art. 167 of the Family Code, makes proposals for improving the currentlegislation, gives recommendations to courts resolving cross-border family disputes. Itis noted that the domestic doctrine and practice determine the elements of public orderof the Russian Federation differently, the author draws attention to the negative trends in judicial practice. The author comes to the conclusion that the provision of domesticpractices of the application of a public order clause should strive to achieve legal certainty,to exclude an unjustified refusal in the application of foreign law, to ensure the exerciseof fundamental human rights. The author concludes that the public order of the RussianFederation must not correspond to a group of rules to be applied when resolving familylaw disputes complicated by a foreign element. The foundations of public order in thefamily law are the principles of family law enshrined in the Constitution and fundamental human rights. For citation: Voitovich E.P. (2020) The Public Order Reservation to Applying Foreign Family Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 26–43 (in Russian) DOI: 10.17323/2072-8166.2020.3.26.43 |
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44–71
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The subject of this study is the legal institution of paternity in the system of law of theRussian Federation. The aim is to identify the main problems of the exercise of paternityrights using modeling methods, as well as historical, formal legal, systemic, statisticalmethods. The problem field of this legal institution begins already with the Constitution ofthe Russian Federation, which provides it (in the family law field) with an extremely limitedbase, and this limitation is not currently filled in by the legal positions of the ConstitutionalCourt of the Russian Federation. The key in this area, taking into account the proportionof divorced marriages, is the possibility of post-divorce education by the fathers of theirchildren. Discriminatory (to the fathers) judicial practice on determining the child’splace of residence is supported, first of all, due to the illegal application by the SupremeCourt of the Russian Federation of Principle 6 of the Declaration of rights of the child; hisamendment of the rule of law establishing a hierarchy of criteria to be taken into accountin cases of this category; as well as through the selection of court cases of a certainorientation. At the same time, with regard to the separately living parent, who, instead ofraising a child, can only claim the surrogate right to communicate with him, court practiceintroduces the obligation to prove that such communication will not harm the child. Thus,the courts actually introduce in addition to the three established new, non-statutory formof parental responsibility, which, of course, is a violation of the law. In addition, the courtssignificantly limit the time of communication with the child, referring to circumstancesthat depend solely on the actions of the other parent living with the child, thereby givinghim the possibility of abuse. The decisions of the courts on establishing a schedule ofcommunication contribute to the same (the possibility of abuse), making it dependentupon the participation of the parent with whom the child lives (usually mothers) or on thedesire of the child himself, which may be affected considerably by the parent with whomhe lives. All of the above approaches are enshrined in the positions of the Supreme Court,and should be replaced by legal ones complying the norms and principles of law. At thesame time, one should consider the possibility of applying as a general rule in resolvingdisputes between parents about the child’s place of residence the mechanism of hisliving on an equal footing (the so-called “joint custody”). For citation: Zykov S.V. (2020) Problems of Implementing Rights of Fatherhood in Modern Russia. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 44–71 (in Russian) DOI: 10.17323/2072-8166.2020.3.44.71 |
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72–89
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Cultural policy is an important component in the task of strengthening the country, nationalidentity and ensuring national security. Protection of cultural property from criminalencroachments is one of the most important law enforcement functions of the state. Thearticle is devoted to the aspects of increasing the effectiveness of the main directions ofcountering criminal encroachments on cultural values. An analysis of the empirical baseallowed to generalize the current situation, positive experience in the sphere of counteringcriminal encroachments on cultural values. The subject of the study is the patterns oforganizational support of activities to counter criminal encroachments on cultural values.The aim of the study is to improve the activities of law enforcement agencies in counteringcriminal encroachments on cultural values. On the basis of studying the patterns oforganizational support of activities to counter criminal encroachments on cultural values, theauthor has identified and analyzed the typical problems: legal, organizational, managerial,criminalistic and other typical problems, that arise in the process of countering criminalencroachments on cultural values. The resolution of the above mentioned problems ofactivities to counter criminal encroachments on cultural values is possible by optimizingit. Optimization of activities to counter criminal encroachments on cultural values as acomplex controlled process consists of interrelated elements and is conditioned by acombination of external and internal factors. The author suppose that in order to optimizecounteraction to criminal encroachments on cultural values, it is necessary to build onan innovative interdisciplinary approach and concentrate the efforts in order to resolvetypical problems in the significant areas: optimization of the mechanism of legal regulationof counteraction to criminal encroachments on cultural values; information support ofcounteraction to criminal encroachments on cultural values; organization of internationalcooperation in the sphere of countering criminal encroachments on cultural values;optimization of interdepartmental interaction in the framework of countering criminalencroachments on cultural values; optimization of preventive activities in the context ofcountering criminal encroachments. The system which is formed in the article is devotedto identifying and taking measures to eliminate the most typical problems, as mistakesin organizing counteraction to criminal encroachments on cultural values, minimizingtheir consequences and ensuring efficiency activities. Author proposes a set of measuresaimed at optimizing the main directions of countering criminal encroachments on culturalvalues. For citation: Mozhaeva I.P. (2020) The Counteractions against Criminal Encroachments at Cultural Values. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 72–89 (in Russian) DOI: 10.17323/2072-8166.2020.3.72.89 |
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90–111
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The article deals with the current problems of civil rights and liability protection in theimplementation of the protective function of civil law in contractual and non-contractualrelations with the help of self-defense measures and measures of operational impact. The author believes that the main feature of self-defense measures is the compensatorynature. It is expressed in the fact that self-defense measures are applied in the eventof a violation of subjective civil law (or when there is a threat of its violation) in order toprotect the violated right. In connection with these features, self-defense is classified asa means of protecting civil law. The article contains a conclusion that could be considereddisputable attempts of attributing to this method of protection of the right of action, whichconsists in the installation of alarms, locks, marking things, etc. In such a situation, thereis no violation of civil law. The corresponding actions are aimed at preventing violationsof civil rights, are not a measure of influence on a person and are implemented within theframework of a regulatory legal relationship. The necessary defense is used by civil lawsubjects to protect their personal non-property rights or property rights in a situation wherethe violator tries to destroy, damage or take possession of the property of the holder ofthe right to self-defense. The owner or holder of a non-property right has the right to takeindependent actions to protect their rights in the event of an unlawful encroachment onthem. The latter is a legal fact that leads to the emergence of a protective relationship forthe implementation of the necessary defense. Actions in conditions of extreme necessityare also implemented within the framework of a protective legal relationship. This legalrelationship is aimed at ensuring the protection of absolute civil rights in conditions ofextreme necessity caused by circumstances that do not depend on the will of the person,or the behavior of the subject of civil law (lawful or illegal actions). The law allows in sucha situation, in order to protect a more important good, the possibility of causing lesssignificant harm. A protective legal relationship for the implementation of this measure ofself-protection occurs if there is a real threat to the life, health, property of the harmer ora third person, which must be protected from destruction or damage. For citation: Karkhavev D.N. (2020) Restoration of Violated Civil Rights out of Court. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 90–111 (in Russian) DOI: 10.17323/2072-8166.2020.3.90.111 |
Discussion club
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112–133
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The increased attention of modern researchers to the legacy of the classics of Russian civillaw has led to the discovery of alternative approaches to understanding the fundamentaltenets of civil law. One of these findings is the doctrine of persons, according to which aperson (subject of law) and a man are completely different concepts, there is no identitybetween them, the first is subordinate to the second, as a means of activity is subject tothe doer. With this approach, the person becomes a set of legal opportunities provided tothe man, his legal capacity. Taking the separation of a person and a man, on the one hand,and the identification of a person and legal capacity, on the other hand, the author of thearticle concludes that legal capacity is not in absolute dependence on human life. The author refutes the widespread opinion about the termination of a subject of law (naturalperson) and civil legal capacity at the time of death. It is concluded that Article 17 of theCivil Code of the Russian Federation does not contain an indication of the moment ofcomplete termination of legal capacity, but determines only the reason for its gradualtermination — the death of man. It was proposed to call the long process of termination oflegal capacity with the gradual disappearance of its individual elements called destructionof legal capacity. The conclusion about the preservation of a natural person, that is civillegal capacity, after a death of man is used in a critical study of legislation and allowsthe author to formulate proposals for improving legal regulation and law enforcementpractice in such areas of public life as inheritance, bankruptcy, intellectual property, stateregistration of rights to immovable property. For citation: Pyatkov D.V. (2020) The Death of Man in Context of a Study of Persons. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 112–133 (in Russian) DOI: 10.17323/2072-8166.2020.3.112.133 |
Law in the modern world
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134–162
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The author started by pointing out a current wide-spread use of the reservations to themultilateral treaties which became inseparable part of the process of entry into force ofvast number of the treaties especially those purporting universal participation. Arguably acombination of the rather soft controlling fixable approach towards reservations securedalmost universal and speedy ratifications of universal human rights treaties. The evolutionof the legal status of the reservations performed a tricky pathway — from the strict negativeapproach reflected in so-called “unanimity rule” in the League of Nations to a liberalizedregime of the reservation envisaged initially in the Advisory Opinion of the InternationalCourt of Justice 1951 and then codified in the relevant articles of the Vienna Convention onthe Law of the Treaties 1969 and after that again towards tightening in the decisions of theregional human rights courts and UN controlling quasi-judicial bodies. Such “aggressive”approach of the human rights controlling institutions has been repeated albeit in a moresoften way in the 2011 International Law Commission Guide to Practice on Reservationsto Treaties in a form of provisions regarding severability of the reservations from act ofratification and obligation of the author of the reservation to withdraw from the treaty incase of its decision to keep the reservation in question. At the same time the ILC Guidejust clarified then modified current legal status of reservations tending to consider theobjections to the reservations as a major instrument reflecting the will of the states on issueof the validity of reservations. Such position of the ILC reflects the undisputable reality ofthe current international law in a sense that the states are more sensitive to its own right tomake reservations than its right to control the validity of reservations made by other states.The states consider reservations as a convenient tool for determination of the level of itsparticipation in the relevant treaty. The “aggressive” stance towards reservations adoptedby the human rights courts and UN quasi-judicial bodies presents interesting but notdecisive vector in the evolution of the legal status of reservations. For citation: Ispolinov A.S. (2020) The Evolution of Legal Status of Reservations: from League of Nations Unanimity Rule to the International Law Commission 2011 Guide to Practice on Reservations to Treaties. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 134–161 (in Russian) DOI: 10.17323/2072-8166.2020.3.134.161 |
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162–184
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Digitalization of public life has a qualitative impact on the establishment of cross-bordercontractual relations, on the one hand, simplifying the process of interaction betweenpotential counterparties, on the other hand, raising the question of the suitability oftraditional instruments as a basis for regulating cross-border relations complicated bythe “digital element”. The main changes that “made” digitalization in the procedure of theconclusion of cross-border contracts are analyzed in the article. The ways of concludingonline contracts using the “shrink-wrap”, “click-wrap” and “browse-wrap” methodsare studied in detail; an appraisal is made of the conformity of the specified methodsof concluding online contracts with the requirements of acts of the European Union inthe field of electronic commerce and consumer protection; the approaches taken by UScourt practice are explored.The questions about the subject of the user agreement and the moment of its entry into force are raised in the article; a distinction is made betweenthe practice of concluding traditional and online contracts at auctions and electronicplatforms in terms of qualifying the action of a potential counterparty as having madean offer or just made an invitation to offer; attention is paid to the problem of the validityof online contracts concluded by minors, and the practice of applying the “doctrine ofinfancy”. The conclusion is made about the appearance in the conditions of digitalizationof a new instrument for regulating cross-border pre-contractual and contractualrelations — a user agreement. The user agreement is not limited to visitors of the sitewho have accepted its terms, but, the rules for using the website are applied to all users;and the “infancy doctrine” in order to invalidate an online contract may not be taken intoaccount by the court if the minor takes advantage of the contract. In practice, the ownersof the aggregator, acting under national and international law, relying on the principleof disposition and taking advantage of the autonomy of the will, dictate to potentialparticipants of online transactions their rules for entering into and executing contracts, ineffect, establishing a special trading regime. The user agreement in this case is often anarray of documents that have a complex architecture and regulate various aspects of therelationship between the website operator providing access to it and users on the use ofwebsite services, ordering services and goods. For citation: Sergeeva O.V. (2020) The Influence of Digitalization on Regulation of Precontractual Pelations in Private International Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 162–184 (in Russian) DOI: 10.17323/2072-8166.2020.3.162.184 |
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185–206
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The article considers the role of fundamental freedoms in the mechanism of taxintegration. The tax law of an integration association serves as a means of creating andproper functioning of the internal market, which is a space without internal borders, in theterritory of which, in accordance with the constituent agreements, the free movementof goods, services, capital and labor is ensured. It is proved that the rules governing theaction of fundamental freedoms are the rules of direct action with no harmonizing effect,but prohibit discrimination and restrictions within the association. Modern cross-bordertax relations require the creation of an effective multi-level system of legal regulationbased on the norms of international, supranational and national law. The study allowedto highlight the direction of the impact of fundamental freedoms on the legal regimeof profit and income taxation in the European Union (hereinafter — the EU) and theEurasian Economic Union (hereinafter — the EAEU), as well as to identify similaritiesand differences in the mechanisms of harmonization of profit and income taxation in theEU and the EAEU. The methodological basis of the research consists of both generalscientific methods (dialectical-materialistic, systemic, induction, deduction, analysis,synthesis) and interdisciplinary research methods. The study is based on a comparativelegal method that allows to compare similar legal problems existing in the legislationand international treaties of the EAEU and the EU, as well as to identify the best waysto solve them. The formal legal method and the historical legal method are also usedin the article. The conceptual difference between ways of harmonization in the areasof direct and indirect taxation is substantiated: direct taxation has less impact on thefunctioning of the Union economy in comparison with indirect taxation. Legal regulationof direct taxation remains within the competence of Member States and is carried out atthe level of integration associations only in certain areas related to the implementation offundamental freedoms. In addition, the study revealed the specifics of the principle of taxsovereignty in the field of integration tax law: tax sovereignty causes both the problem oftax competition and its solution in the form of cooperation of Member States. For citation: Ponomareva K.A. (2020) The Fundamental Freedoms and their Influence on Profit Taxation in EU and EAEU. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 185–206 (in Russian) DOI: 10.17323/2072-8166.2020.3.185.206 |
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207–234
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The article examines the legal regulation in the EU the ban on unjustified geo-blocking andother forms of discrimination due to citizenship, location or the place of establishment asthe obstacles to create a single digital EU market. The aim of the research is to identifythe special features and trends. The methods applied were both general and speciallegal methods, i.e. legal historical, formal legal, comparative methods, the method oflegal forecasting. The EU faces new challenges influencing its achievement one of whichis digitalization. To increase the efficiency of the legal regulation of the internal marketthe permanent evolution of is required by spreading the integration various areas ofdigitalization. Hence, the EU internal market started including a single digital market, oneof the pillars of which is the access of the buyers to the goods and services of electronictrade. The commission declared a number of issues to implement the EU competition lawone of which is geo-blocking. The article defines the key concepts of the legal relationsunder research. The unjustified geo-blocking is a discriminating practice impeding theaccess and acquisition of the goods and services via web-sites located in another EUmember state. The geo-blocking is considered as a material obstacle to implement thefundamental freedoms and/or as a material violation of competition. The result of theconsistent actions of the EU institutions was the act on harmonizing legislations — RulesN2018/302 on counteracting unjustified geo-blocking and other forms of discriminatingbuyers due to citizenship, permanent address and the place of office. The essence of theRules is the ban on the direct and indirect discrimination of buyers against the accessto online-interfaces of electronic trade, goods and services, conditions of payment,agreements on passive sales. The rules provide for several grounds under which thedistinct attitude towards sellers due to citizenship, the place of residece and office may bejustified. The actions of the EU institutions promote to fixing stricter requirements againstsellers and providers. To fulfil the potential of the internal market the obstacles should beremoved, in particular geo-blocking. For citation: Postnikova E.V. (2020) Legal Regulation Prohibition of geo-blocking to Create a Single Digital Market of the European Union. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 207–234 (in Russian) DOI: 10.17323/2072-8166.2020.3.207.234 |
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235–252
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Every nation when conferring citizenship seeks to select the most loyal, law-abiding andadjusted to life in the new state migrants. Due to this, involving the interested persons inthe new community and serves as a number of requirements the performance of whichshow this, lawmakers set the interested persons are involved in the new community andserves as a basis for providing the citizenship of the country of residence. The articleexamines the procedure for naturalization by residence with requirements to acquireSpanish nationality and the requirements for the applicants for Spanish citizenship. Theauthor highlights the requirements to be performed to obtain the notice on the decisionof state authorities and after obtaining the affirmative decision. Prior to the 2015 reform, itwas required to submit the documents in printed form, the compliance of the candidatesfor naturalization under law, the integration law was applied upon the interview with judgein charge of the Civil Registry, who decided whether the applicant meets the naturalizationrequirements or not. Currently, to confirm integration into the host society, candidates for naturalization in Spain are to pass two exams to obtain the Diploma of Spanish as aForeign Language (DELE) and the Certificate of knowledge of the Spanish constitutionand the Spanish social and cultural reality (CCSE). Recently, the EU countries drawmore attention to the state language proficiency and the competence on the knowledgeabout the receiving state and community. Spain introduced the formal requirementslater than other EU states. The author concludes that with the introduction of appropriateexaminations, the evaluation of the social and cultural integration of applicants fornaturalization has become more objective. For citation: Veniaminova M.V. (2020) Naturalization in Spain in Light of Immigration Processes. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 235–252 (in Russian) DOI: 10.17323/2072-8166.2020.3.235.252 |
Book review
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253–259
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Review of a book by Mussi. L. Ulrike Müßig. Reason and fairness: constituting justice in Europe, from medieval canon law to ECHR. Leiden: Brill, 2019. 629 p. (Leiden: Brill, 2019,629 p.) Citation: Poldnikov D. Yu. (2020) The Sources of the European Judicial Standards. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 253–259 (in Russian) |
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