Annotations № 6 (141) / 2021

INTERNATIONAL LAW

Zhang Liying (Beijing, People’s Republic of China) «One Belt, One Road»: the problems of international cooperation in the field of rail transportation

Despite the fact that cargo transportation by China – Europe is the most important factor in the development of trade in the Eurasian region, the growth of the trade volume is limited by the existing rules of international rail transport. The insufficient development of the rules of international rail transport, the conflict between the international rules of rail transport, and between the Agreement on International Railway Freight Traffic and the Convention on International Carriage by Rail as well, extremely restrict transportation by China – Europe. The author underscores the need for unification of international rail transport rules by taking into account the provisions of existing international conventions on related issues as well as by creating the mechanisms for international cooperation, unification of transportation documents, information exchange and joint organization of transportation.

Key words: transport communication, Agreement on International Rail Freight Communication, Convention on International Carriage by Rail, China – Europe communication, cooperation mechanisms

Fedorov I. (Yekaterinburg) Current evolution of international legal proceedings

A brief assessment of the development of international legal proceedings is presented through the prism of the main procedural elements: proceedings, a stage, and a regime. The author notes that international legal proceedings are stable and only certain actions of them are changeable or variable while initial rules for the organization and implementation of the proceedings are constant. A change in legal proceedings is possible when states designate new areas of courts’ activity.

Key words: international legal proceedings, international court, stage, procedural regime

CONSTITUTIONAL LAW AND PROCEDURE

Zaykov D. (Moscow) Request of the state legal bureau: problems of legal regulation

The right of everyone to receive qualified legal assistance is the most important constitutional right. Vulnerable social groups receive this assistance free of charge, and state law bureaus play a significant role in this case. In 2021 the state law bureaus were endowed with а new legal tool – a request, which aims at collecting certificates, characteristics and other documents necessary for providing citizens with free legal assistance. Hence, following questions arise: is this institution efficient and was the choice of a model of legal regulation correct? The author concludes that there are a number of gaps and shortcomings in the legal regulation of the request of the state law bureau, so it needs further improvement.

Key words: state law bureau, request, lawyer’s request, free legal assistance

CRIMINAL LAW AND PROCEDURE

Shurpaev Sh. (St. Petersburg) Some features of a special subject of crimes under articles 200.4 and 200.5 of the Criminal Code of the Russian Federation

The author reveals the legislator’s approach to describing the signs of a special subject of crimes under articles 200.4 and 200.5 of the Criminal Code of the Russian Federation. He mentions a number of defects in this approach that can reduce the effectiveness of law enforcement. Among them are the unwieldiness, excess «blanketization» and casuistry of the norms describing the special subject of a crime. The author proposes to use a generalizing wording «employees of the customer who are not officials» to describe the signs of the special subject of crimes under articles 200.4 and 200.5 of the Criminal Code of the Russian Federation.

Key words: procurement abuse, bribery, special entity, state and municipal procurement, corruption crimes

Karavaeva Yu. (Perm) The legal regulation, imposition and execution of the punishment provided for by article 47 of the Criminal Code of the Russian Federation

The author states the ambiguity of the legal regulation of the grounds for imposing such a special punishment as deprivation of the right to hold specified offices or to engage in specified activities. She says that the interpretation of these grounds given by the highest court is inconsistent. The analysis of judicial practice shows that the courts have no impediment against imposing the deprivation of the right to hold specified offices or to engage in specified activities for crimes that are not related to the office or activity of a guilty person. Such a practice offsets a specialized punitive and preventive potential of this punishment and complicates its execution; thereby, some scholars propose to exclude it from the list of punishments. The author considers it useful to lay down in the law the need to establish a connection between the committed crime and the office or special activity that is prohibited and, thus, to limit the court’s discretion powers to apply article 47 of the Criminal Code of the Russian Federation. She also proposes to include this type of punishment in the sanctions of the norms of the Special part of the Code establishing liability for crimes committed in connection with the office or activity of the perpetrator, and to exclude it from the sanctions of the norms, which does not allow making a conclusion about the existence of such a connection.

Key words: special types of punishments, deprivation of the right to hold specified offices or to engage in specified activities, judicial discretion

Kozubenko Yu. (Yekaterinburg) On the role of criminal prosecution in the structThe article reveals the place and procedural significance of criminal prosecution in the mechanism of criminal law regulation. The features of the procedural activity carried out by the prosecution, which is called «criminal prosecution» in the criminal process doctrine, are noted. The author formulates the definition of criminal prosecution and briefly describes its stages in relation to the theoretical stages of law enforcement. He shows how the proposed understanding affects the adversarial nature of criminal process and the formulation of the purpose and objectives of criminal proceedings.

Key words: criminal prosecution, adversarial principle, purpose and objectives of criminal proceedings, forms of implementing rules of lawure of the inter-branch mechanism of criminal law regulation

CIVIL LAW AND PROCEDURE

Murzin D. (Yekaterinburg) The vindication model of protecting absolute rights

The article deals with the problems associated with the definition of a general method of protecting absolute rights, regardless of what is the object of such rights – a material thing or a disembodied property. It is proposed to consider the vindication model as a general method of protection in a situation when a rightholder is unlawfully deprived of dominion over the object of his absolute right. The vindication model of protecting the violated absolute right is based on the functional co-directionality of various forms of protection: interim and restorative. A security component of the vindication model is the recognition of a right. A restorative component of the vindication model is the restoration of rightholder’s legitimation in relation to the objects of absolute right belonging to him. The legitimation of the rightholder is based on the appearance of the right and is a compliance with the presuppositions according to which a person is considered a rightholder of various objects of absolute rights (an owner of a thing, a legal owner of a security, a rightholder of exclusive rights, etc.). The restoration of plaintiff’s legitimation is appropriate if it entails the return of the dominion over the property. Therefore, there are various ways to restore legitimation, depending on the technical features of fixing the absolute right to property (return of the ownership of a material thing; changes to the records about the rightholder in the registers; transfer of the right to administer the domain name, etc.). The theoretical concept of the vindication model of protecting violated absolute rights is developed. The features of a claim based on the vindication model are formulated.

Key words: vindication, property right, method of protection, absolute right, recognition of a right, restoration of legitimation

Branovitskii K., Neznamov A., Renz I. (Yekaterinburg) Digitalization of the civil process in integration associations (case study of the EAEU)

The EAEU Member States, with varying degrees of success, are moving along the path of digitalization of national procedures for considering civil cases, but, at the same time, neither they nor the bodies of the Eurasian Economic Union pay attention to the problems of digital consideration of cross-border disputes, «convergence» of national digital judicial platforms, etc. Taking into account the experience of the European Union and the main results of digitalization of the civil process in the EAEU Member States, the authors raise the question about the need to develop unified rules for the civil process and its digital transformation in the integration association.

Key words: law convergence, Eurasian Economic Union, current civil procedure, digitalization, cross-border civil disputes, writ proceedings

Voytovich E. (Novosibirsk) Recognition and enforcement of foreign decisions in family matters in the Russian Federation

The article provides an overview of modern doctrinal and law enforcement problems of recognition and enforcement of foreign decisions in family law matters in the Russian Federation. The author analyses the conventional basis for giving legal effect to foreign judicial acts. She tries to find out whether it is possible to recognize and enforce foreign judgments in family law matters when there is no international treaty. She also reveals the shortcomings of an approach to determining the legal basis for recognition and enforcement of foreign decisions, which is implemented in article 409 of the Civil Procedure Code of the Russian Federation. The author draws attention to the procedural consequences of an application for recognition of a foreign judgment and objections to recognition in cases when a foreign judicial act is enforceable. The features of an object of enforcement are considered, and the definition of a judgment to be enforced is proposed. The author investigates the grounds for refusing to enforce foreign judgments and concerns about the judicial interpretation of the public policy clause. She concludes that the effective recognition and enforcement of foreign judgments in family law matters in Russia are hindered by outdated international legal regulation, conflicting court practice, inconsistency in the norms of procedural and family law, and the uncertainty of the object of enforcement.

Key words: family law matters, recognition, enforcement, international treaty, judgment, order, public policy clause

Lukyanchikova E. (St. Petersburg) Participants in a bankruptcy case: who is who?

In the event of the debtor’s bankruptcy, the interests of a significant number of subjects (creditors, employees, shareholders (founders), an owner of the property of a unitary enterprise, etc.) are affected. In fact, it is difficult and impractical to allow any person with any interest in the case to enter bankruptcy proceedings. In addition, it is necessary to take into account the following peculiarity of the bankruptcy proceedings: in the bankruptcy case, many separate disputes with various participants are considered. In theory and judicial practice, there are a lot of disputes regarding the range of persons involved in the bankruptcy proceedings, as well as the scope of their rights (both in the main case and in the separate disputes). The author analyses the norms of the Federal Law «On Insolvency (Bankruptcy)», the Arbitration Procedure Code of the Russian Federation as well as the judicial practice, and concludes that there are two separate groups of persons – those who participate in a bankruptcy case and those who participate in bankruptcy arbitration proceedings – due to the need to provide different scope of rights to the subjects of these groups. Persons who participate in bankruptcy arbitration proceedings have primarily information rights. The criterion for distinguishing between two groups of persons is a different level of their interest in the case. The author points out that the identification of the concepts «a person who participates in a bankruptcy case» and «a person who participates in a case», «a person who participates in bankruptcy arbitration proceedings» and «a person assisting justice» is incorrect. It is also noted that third parties are entitled to participate in bankruptcy proceedings – both in the main case and in the separate disputes, while the scope of their rights will be limited.

Key words: bankruptcy, persons who participate in a bankruptcy case, persons who participate in bankruptcy arbitration proceedings, separate dispute, third parties

ADMINISTRATIVE LAW AND PROCEDURE

Stakhov A. (Moscow) Administrative coercion measures applied in Russia in accordance with the administrative procedural legislation

The author substantiates the allocation of administrative coercion measures applied in Russia by public administration and courts in accordance with the administrative procedure legislation. These measures are divided into administrative and punitive ones, administrative and eliminating ones, administrative and inducing ones. An assessment of the offenses that are the grounds for the application of these measures is given.

Key words: administrative offense, administrative and legal coercion, ad-ministrative tort, public administration, administrative proceedings, admin-istrative court proceedings, administrative and punitive measures, admin-istrative and eliminating measures, administrative and inducing measures

Berzin O., Shliagina E., Tiurina K. (Nizhny Novgorod) An analysis of the status of participants of customs legal relations in the EAEU Member States

The article provides a comprehensive analysis of the elements of the legal status of customs representatives, customs carriers, owners of duty-free shops, warehouse owners and authorized economic operators in the EAEU Member States. The authors reveal similarities and differences in the legal status of subjects of customs relations and, on this basis, propose a common approach to formulations of their rights and obligations. An analysis of judicial practice demonstrates the shortcomings of the construction of joint liability of declarants and customs representatives. The authors state that the customs officers use too formal approach to establishing the intent of administrative violation in disputes between declarants and customs representatives. They summarize that the requirements for customs carriers are aimed at ensuring their sustainable material and financial security. The territorial limitation of entrepreneurial activity of owners of duty-free shops is emphasized. Differences in the requirements for warehouse owners are highlighted. The types of certificates of authorized economic operators are considered.

Key words: customs legal relations, participants of customs legal relations, EAEU Customs Code, declarants, customs representatives, customs carriers, duty-free shops, warehouse owners, authorized economic operators

ECONOMICS AND LAW

Vinnitskiy A., Solovyev M. (Yekaterinburg) Public procurement and public-private partnership as ways to meet public needs: problems of competition

The article investigates the provisions of the current legislation that regulate the system of ways to meet state and municipal needs, as well as the relevant provisions of the legal doctrine. The authors generalize and analyze the judicial practice of commercial courts in regard to the issues of differentiation of public procurement and public-private partnership (in a broad meaning). The following important criteria for distinguishing between public-private partnership, in particular concession, and public procurement are considered: 1) a subject and time, 2) a source of finance, 3) liability structures and risk spread. The authors conclude that the main (universal) mechanism for meeting state and municipal needs is the implementation of public procurement through competitive and non-competitive procedures provided by the Federal Law No. 44-FZ of April 5, 2013 «On the Contract System in the Field of Procurement of Goods, Works, Services to Meet State and Municipal Needs». All other ways, including public-private partnership, should be used when it is impossible to meet timely and effectively the needs of public law entities through procurement activities.

Key words: state and municipal needs, public procurement, public-private partnership, concession

Pomortsev K. (Yekaterinburg) Cluster as a legal category

The article discusses the basic concepts of a cluster contained in the regulatory acts of the Russian Federation. The author emphasizes that the cluster is precisely a set of entities engaged in the production of goods (works, services) in order to increase competition, and it is not a territorial entity. He mentions that, despite the widespread use of the term «cluster» in regulatory acts, including acts of the subjects of the Russian Federation, legislators of both levels bypass the issue of adopting its single (universal) legal definition. The author concludes that the primary task of the cluster is to achieve an economically useful result, in particular, to increase competition and to expand sales markets. It is alleged that the Federal Law «On Industrial Policy in the Russian Federation» should be considered as the main document that reveals the features of the cluster, which in general do not contradict the economic and comparative legal analysis of the studied phenomenon. The author notes that the normative definition of the cluster will help to set the vector for the development of the relevant legislation.

Key words: cluster, industrial cluster, special economic zone, cluster entities, territorial entity

Churakov V., Grishina D. (Moscow) Open data management in Russia

Open data publishing activity in Russia dates back to 2012. Almost 10 years later, the quality and quantity of such data has increased significantly. To facilitate the work with open data, both private and public information systems have been created. The main state system at the moment is the National Data Management System (NDMS). The article provides an analysis of the development process of the NDMS, identifies the current problems of regulation of open data management both at the federal and regional levels, and suggests ways to overcome them.

Key words: open data, data quality, data management, national data management system

MUSEUM OF SLI – USLA – USLU HISTORY

Zipunnikova N., Kalinina A. (Yekaterinburg) The role of the university archive in preserving university memories (a historical and biographical essay on the archive of the Ural State Law University)

The authors draw attention to an understudied group of university actors – university staff working in the archive. It is a first attempt to present a historical biography of the archive of a particular law university. Its development is investigated in the light of the formation of archives in the Soviet and post-Soviet age. Despite the specifics of the source base, its incompleteness, and significant dynamics of the university staff structure during the university century, the authors describe different periods in the history of the archive and its tasks. Particular attention is paid to the work of the archive in the current period, when the archive as a «place of university memory» begins to participate in the formation of university values and meanings, in addition to the utilitarian tasks of ensuring the operational management of the university and the storage of documents. In collaboration with the museum of the university history, the archive develops scientific and educational research areas and strengthens the corporate legal and university culture. The main line of the article is the problems of university memories and the place of the university archive and its workers in this «coordinate system».

Key words: archive of the law university, archivists, historical biography, university-law memories, polyfunctionality of the archive, university-law meanings, museum – archive collaboration