Judicial Practice Research Articles

TOPICAL ISSUES OF DOCTRINE AND COURT PRACTICE ON THE INTERNATIONAL RESPONSIBILITY OF THE STATE FOR THE ACTIVITIES OF FOREIGN NON-STATE ARMED GROUPS

The article examines the topical issues of doctrine and international judicial practice regarding the determination of the State's responsibility for international wrongful acts, in particular, those related to the activities of foreign non-State armed groups. The authors analyse the international legal framework of State responsibility for international wrongful acts, as well as individual criminal liability of individuals. The paper substantiates a set of economic and legal instruments for the implementation of international responsibility (reparations, satisfaction, restitution, economic sanctions) as a mechanism for ensuring compliance with international law by States. The study identifies the legal positions of the International Court of Justice, the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the European Court of Human Rights and other international judicial institutions on the application of the concepts of "effective control" and "overall control" in judicial practice, as well as problematic issues of law enforcement.

Minority of a deed provided for by the criminal law: praxis legis, guae debet esse

Objective: to develop scientifically substantiated provisions on the insignificance of a deed provided for by the criminal law and to propose measures to improve legislation and law enforcement in this area. Methods: dialectical approach to cognition of social phenomena, allowing to analyze them in development and functioning, which contributed to the use of the following research methods: a) general scientific (logical, systemic, analysis and synthesis, induction and deduction), b) special (documentary, practical, comparative-legal, formal-legal). Results: the work substantiates the conclusion that the recognition by an inquirer, investigator, prosecutor, judge of the insignificance of a deed provided for by the criminal law should be based on the following information: about the occurrence of all elements and signs of corpus delicti in the deed; about the infliction of small (minor) harm to law-protected interests in conjunction with the intent of the perpetrator aimed at causing such, including the lack of desire to cause harm, which excludes the existence of a reasonable amount of criminal-law harm. It is proposed to supplement Part 1 of Article 24 of the Russian Criminal Procedure Code with a new ground for refusal to initiate criminal proceedings (termination of criminal proceedings), namely, the insignificance of the deed, and to consider it as a circumstance excluding criminal prosecution of a suspect (accused). Scientific novelty: the following means to distinguish a minor act from a crime were substantiated: a) the introduction of the “reasonable amount of criminal-legal harm” category in the investigative and judicial practice, b) the need for law enforcement to establish objective and subjective conditions of minor significance of the deed, c) the proposal on modernizing the criminal-procedural legislation. Practical significance: the main provisions and conclusions stated in the article can be used in scientific, pedagogical, law-making, investigative and judicial activity when considering the issues of application and improvement of the norm on the insignificance of a deed provided for by the criminal law, on the delimitation of such deed from a crime.

Унификация отраслевых торгов и их перевод в электронную форму как ключевые элементы совершенствования антимонопольного контроля за организацией и проведением торгов

The article is devoted to the research of the legal nature of tenders from the point of view of civil law and competition law, as well as identifying problems within the existing system of industry tenders, which lead to the formation of uncertain judicial practice. It is substantiated that the institution of tenders, initially formed and developed within the framework of civil law, at the present stage has acquired an interindustry character, in connection with which it is necessary to highlight both the civil and competitive significance of tenders. It is established that at the moment the legislation of the Russian Federation contains a significant list of cases of mandatory tenders, which, however, have a fragmentary industry character and do not ensure a sufficient level of competition. Based on this, arguments are given about the need to unify industry tenders in the form of uniform rules for organizing and holding tenders established by antimonopoly legislation, as well as transferring all tenders to electronic form to increase the number of tender participants, and, as a consequence, increase the level of competition in tenders for the purpose of effective implementation of state and municipal property.

Перспективы применения критерия de minimis в делах о картелях

This article presents an analysis of the phenomenon of cartels in the paradigm of antimonopoly legal regulation. The author examines domestic and foreign judicial practice on the application of the de minimis criterion in cartel cases and assesses the prospects for its use.

Inheritance, Marriage and Adoption: Changing Judicial Practices in Hyderabad State

Although Hindu banking firms in Hyderabad state had an advantage over Muslim ones because Hindu law allowed adoptions while Islamic law did not, adoptions were nonetheless a source of great conflict and division for firms. Before the late nineteenth century, inheritance practices in Hyderabad privileged both Hindu and Muslim nobles and officials, but as Hyderabad’s courts and advocates began to be connected to courts and advocates based in British India, contesting family members turned from the family and customary law generally administered in Hyderabad to the evolving standardisation of Hindu and Islamic law in British India. Hyderabad’s government, however, continued to privilege Hindu and Muslim nobles well into the twentieth century, although more research is needed about changing judicial practices in Hyderabad and other native states.

EcoClimate and ESG Disputes: Practice, Risks, Prospects

The ecoclimate or «green» agenda, largely constituted through the concept of «sustainable development» and the system of ESG standards, has captured the world and is changing society, generating new social patterns, and ceasing business and management models. This encourages rethinking the legal superstructure, adapting new regulatory arrays to the current legal taxonomy, which is not always possible, taking into account the positivist approach to law and a significant amount of «soft» law rules and sources of non-state regulation within the framework of «green» regulation. The ecoclimate agenda has a number of dimensions in the context of law and jurisprudence, one of which is the practice of ecoclimate and ESG disputes, often of a cross-border nature. Very little attention is paid to this issue in the Russian research space, while the volume of relevant lawsuits in the world is growing rapidly. The object of the study within the framework of this work covers the risk-oriented nature of the above-mentioned issues, the licensing risks of mainly cross-border contracts, the assessment of companies’ activities in the field of sustainable development in the context of possible judicial or arbitration proceedings. The paper provides a classification of ecoclimate and ESG disputes, gives examples of judicial and arbitration practice, and makes some conclusions regarding mitigation of litigation risks generated by the companies’ activities.

Detention of Persons Engaged in Entrepreneurial and other Economic Activities: Updated Legislation and Current Narratives of Judicial Practice

For the first time, provisions on special rules for the election of a preventive measure in the form of detention of persons engaged in entrepreneurial activity appeared in domestic legislation in 2010. Since that time, the relevant regulatory provisions have repeatedly undergone minor changes, having significantly changed in 2019, when the legislative indication for the commission of a crime in the «sphere of entrepreneurial activity» was replaced by an indication of the status of a person suspected or accused of committing a crime related to his entrepreneurial or other economic activity. In pursuit of the goals of greater liberalization of criminal proceedings and protecting entrepreneurs from the unjustified use of procedural coercion measures in accordance of the public danger of crimes committed by them, in 2023 the law-maker again updated the provisions on detention, providing for regulation that at first glance could ensure their achievement. At the same time, as the analysis of judicial practice shows, the ongoing legislative changes have not solved the main problems of applying the appropriate preventive measure, since they have not clarified the content of the concept of entrepreneurial activity for the purposes of Article 108 of the Code of Criminal Procedure of the Russian Federation and have not determined the mechanism for establishing a link between this activity and the crime committed by the entrepreneur. The paper analyzes the approaches existing in the doctrine and law enforcement to solving these problems, suggests ways to resolve them that can ensure the achievement of the goals of humanization of criminal prosecution brought against entrepreneurs.

A Judicial Case Study on Inheriting Membership Shares in Rural Collective Economic Organizations - An Empirical Analysis of 132 Judgment Documents

The government Decision on Several Major Issues Concerning Comprehensive Deepening of Reform stated that the shares of collective assets should have the right of inheritance, thus bringing the issue of inheritance of shares in rural collective economic organizations into public view. In 2016, the government issued the Opinion on Steadily Advancing the Reform of the Collective Property Rights System in Rural Areas, which encouraged localities to carry out practical exploration of inheritance of shares in rural collective economic organizations. Since then, numerous practical cases concerning inheritance of shares in rural collective economic organizations have emerged across the country, but because of the delay in legislation, different standards have been applied in handling related issues in different places, resulting in a large number of "same case but different judgments." Through a comparative study of rural collective economic organization theory and the collection of 132 civil judgments involving inheritance of shares in rural collective economic organizations from various places for empirical research, it was found that the scope of heirs was unclear, the proportion of non-collective members who could inherit was unclear, and the procedures for inheritance were unclear. Therefore, this study aims to provide judicial application suggestions for clarifying the scope of heirs, clarifying the proportion of non-collective members who could inherit, and clarifying the procedures for inheritance, in order to provide some reference for future judicial practice.

Legal regulation of liability for failure to fulfill a state or municipal task of an institution

The article, based on the results of the research conducted by the author, identifies the basic requirements for the formation of state and municipal tasks of state (municipal) institutions, and also analyzes the regulations that consolidate them and influence the assessment by budget control authorities of compliance with the procedure for the formation and execution of state and municipal tasks. The features of the legal regulation of the formation of the task and the requirements for it are analyzed, related to the level of public legal education — the founder and the sectoral characteristics of the activities of the institution itself. It is stated that the values of performance indicators and acceptable deviations from their achievement are not always the same for similar or analogous services in different industries, which should be taken into account when determining whether a violation has occurred. The author examines the legal basis for holding people accountable for violations related to the formation and execution of an assignment, including its financing from the budget. Based on an analysis of legal norms and judicial practice, some features of the approaches of control bodies and courts to assessing such violations are highlighted.

Internet Fraud in the Illegal Sale of Drugs Containing Narcotic Drugs

The article considers the current problem of Internet fraud in the context of the illegal sale of drugs containing narcotics. The main methods and techniques by which criminals use the network to sell illegal substances, bypassing legislative restrictions, are analyzed. The features of Internet fraud associated with the illegal sale of drugs containing narcotics are investigated. Common fraud schemes used by criminals in the online space, such as fake online pharmacies, fake sites and hidden platforms on the darknet, are considered. The legal and ethical aspects of this phenomenon are highlighted, and measures to combat Internet fraud in this area are proposed. The study is based on the analysis of legislation, judicial practice and academic sources, which allows us to identify key challenges and recommendations for improving law and order in the online sale of narcotic drugs.

The current state of domestic legislation in the field of turnover of digital currencies and digital assets and law enforcement issues in the criminal sphere

The article analyzes the provisions of Federal Law No. 259-FZ dated 07/31/2020 «On Digital Financial Assets, Digital Currency and on Amendments to Certain Legislative Acts of the Russian Federation» regarding the legal regulation of the circulation of digital currencies, including issues of law enforcement in criminal proceedings. Based on the study of such concepts as «digital currency», «digital ruble», «issue of digital currency», «turnover of digital currency», «cryptocurrency», their disadvantages are noted. In general, the adoption of Law No. 259-FZ did not lead to the creation of a full-fledged system of legal regulation of the circulation of digital currencies, its provisions are fragmentary and largely controversial, and judicial practice is not uniform in cases related to the circulation of digital currencies (cryptocurrencies). The article highlights controversial issues arising in law enforcement practice related to the criminal law regulation of the digital economy. It is noted that to date, there has not yet been a clear definition of either digital currency or cryptocurrency as the subject (means) of a criminal act. It is obvious that the recognition of digital currency as property under criminal law will expand the list of crimes in which virtual currency can be the subject of a crime.

Особенности банкротства управляющих компаний: правовое регулирование и правоприменение

The article provides a comprehensive analysis of legal aspects related to debt management for communal services and bankruptcy procedures of managing companies in the Russian Federation. The main focus is on analyzing the heterogeneity of legal approaches in judicial practice, obligations and rights of subscribers for payment of communal services, as well as recent changes in legislation aimed at increasing transparency in the housing and communal services sector and strengthening the rights of property owners. The author proposes comprehensive measures to improve the situation, including the standardization of legal approaches, strengthening control over payment for services, and preventing bankruptcy of managing companies through the development of effective mechanisms.

Нетривиальный подход к определению обязательных вопросов, подлежащих включению в повестку очередного (годового) общего собрания участников общества с ограниченной ответственностью

The article is dedicated to an analysis of the need to hold ordinary (annual) general meetings of members of a limited liability company (including in one person companies); selection of obligatory matters to be included in the agenda of such meetings. The author proves the need to hold ordinary (annual) general meetings in all limited liability companies, concludes that the only imperative matter to be included in the agenda of a general meeting of members is approval of the annual performance of the company, justifies that review of other matters is optional taking into account the provisions of applicable laws, judicial practice and relevant civil studies.

Доли (акции) умерших участников, не имеющих наследников: проблемы правоприменения

The article examines the problems arising in connection with the recognition of shares in the authorized capital of business entities as escheat property. An analysis of judicial practice was carried out, indicating the absence of a unified approach to solving this problem. It was concluded that it is necessary to create a legal mechanism for the transition to a company of shares of deceased participants who do not have heirs.

К вопросу об оспаривании цепочки сделок в делах о банкротстве по мотиву притворности

The authors of the article refer to the concept and signs of a sham deal, paying special attention to the sign of the coincidence of the parties in the covering and disguised deals. Based on the analysis of judicial practice in bankruptcy cases, the conditions for qualifying as sham several consecutive transactions covering a single transaction for the withdrawal of the debtor’s assets are identified. The problem of the presence of a sign of coincidence of the initial and final parties of transactions in a chain of sham transactions is considered separately. A conclusion is formulated about the coincidence of the initial and final parties of transactions and in the case of a sequence of interrelated transactions.

Changes in the Interpretation of the Criminal Law by the Supreme Court of the Russian Federation: Factors, Consequences, Risks

Problem statement. The problems of the evolutionary interpretation of the criminal law in the scientific literature are practically not given attention. At the same time, the practice of significantly correcting the interpretative positions of the Supreme Court of the Russian Federation forces us to conceptualize this problem as an independent object of scientific analysis. Aims and objectives of the research. The purpose of the work is to develop the theory of interpretation of the criminal law by analyzing the factors influencing the change in the position of the highest court on the interpretation of the criminal law, as well as by investigating the mechanisms necessary to deter dynamic interpretation. Methods. The work is based primarily on the use of a documentary method of researching materials of judicial practice and a critical analysis of scientific literature. Results. Based on the study of the materials of the practice of the Constitutional Court of the Russian Federation, practice-forming documents of the Supreme Court of the Russian Federation, current judicial practice and scientific sources, the following are presented: (a) factors influencing the dynamics of the position of the Supreme Court of the Russian Federation on the interpretation of criminal law; (b) factors allowing to predict changes in the dynamics of the legal position; (c) risks arising in connection with changes in acts of interpretation. Brief conclusions. The dynamics of the legal interpretation positions of the Supreme Court of the Russian Federation is influenced by at least four groups of factors: the constitutional and legal meaning of criminal law regulations identified by the Constitutional Court of the Russian Federation; changes in the socio-political course implemented in the country; the needs of law enforcement practice changing under the influence of new criminal challenges; the development of scientific ideas about the content of criminal law. These factors, acting individually or together, may determine a change in the approach of the highest court to understanding the criminal law. However, such changes, no matter how necessary they are, must have an important quality of predictability so that the dynamics of the interpretation of the law does not undermine the beginning of stability of criminal law regulation. The risks of instability of legal regulation when changing the interpretation of the law must be overcome by a reliable monitoring and forecas­ting system so that these changes contribute to the development of law and the effective achievement of the objectives of the criminal law.

Peculiarities of modern judicial practice regarding negatoria defense of rights to land plots

Peculiarities of modern judicial practice regarding negatoria defense of rights to land plots

EMPLOYEE’S RIGHT TO INFORMATION IN ECHR JUDGMENTS: ANALYSIS OF SPECIFIC CASES WHERE THIS RIGHT WAS VIOLATED OR RECOGNIZED - DOI: 10.12818/P.0304-2340.2024v84p335

Observance of the employee’s right to access information is important because the priority direction of state policy is the formation of a democratic country, which presupposes a strict observance of inalienable human rights and freedoms, maintenance of the rule of law and democracy. This study contributes to the development of the national legal system, protection of human rights, and preparation of Ukraine for integration into the European legal framework. It is necessary to take into account and adapt European standards to ensure fair and effective mechanisms for protecting employees’ rights. Therefore, the study of the ECHR cases on the employee’s information right can help Ukraine to adapt its legislation and judicial practice to European standards, which is a necessary step towards joining the European Union.

The Relevance of a Globally Recognised Rights-based Approach to Environmental Protection

A rights-based approach is an international framework centered on the promotion and protection of human rights consistent with international human rights standards. Since the United Nations General Assembly in Stockholm in 1972 first linked human rights and environmental protection, there has been a growing tendency to include rights-based guarantees in environmental protection topics. After more than a decade of judicial practice in environmental protection, rights-based environmental litigation has become more and more evident. On this basis, a human rights-based approach has been put forward to address the issue in a way that is shared between “government” and “businesses”. The human rights-based approach is of great significance to environmental protection and sustainable environmental development, and the relationship between the two is also of value for research.

Jurisdictional Conflicts and Solutions in Bribery Cases of Multinational Corporations

Commercial bribery by multinational corporations is hampering global economic development and threatening the legal authority of states. In dealing with such cases, countries often form violent conflicts of jurisdiction in cases due to differences in legislation, law enforcement and judicial systems, among other reasons. Such conflicts not only affect the efficiency of handling cases, but may also lead to a waste of law enforcement resources and the evasion of legal responsibility by multinational corporations. By introducing the basic types of jurisdiction in cases of multinational corporations, this paper points out the reasons for the formation of conflicts of jurisdiction among countries. Then this paper systematically analyzes some representative domestic acts and international conventions, and finds that most countries and international organizations are actively working on legislation. In many years of judicial practice, the world has achieved remarkable results in combating transnational commercial bribery. However, there are still many shortcomings in these existing legal mechanisms and implementation methods. This paper aims to propose a more efficient solution to the existing dilemma, and suggests that the mechanism for determining jurisdiction in bribery cases of multinational corporations should be further improved by strengthening the international cooperation mechanism and establishing a global anti-bribery body.