Russian Legal System Research Articles

Institution of insolvency (bankruptcy) of individual entrepreneurs: concept, evolution, legal nature and prospects development

Modern economic relations objectively need legal regulation of the procedure of termination of activities of those participants of turnover, who were unable to continue it due to deterioration of their property status. Due to the prevalence of participation of individual entrepreneurs in economic activity, they may also be among the insolvent subjects. These circumstances cause the need to study the specifics of insolvency (bankruptcy) of individual entrepreneurs, including in the context of forming the practice of application of the relevant legislation. Based on the analysis of the specifics of the legal status of an individual entrepreneur as a participant of property turnover, the purpose of legal regulation of insolvency (bankruptcy) of entrepreneurs, the conclusion is made about the possibility of singling out an independent institute of insolvency (bankruptcy) of entrepreneurs, institute of insolvency (bankruptcy) of an individual entrepreneur, it some principles are defined. When identifying the branch affiliation and place of this institute in the Russian legal system, it is defined as an arbitration-procedural legal institute. The peculiarities of the legal status of an individual entrepreneur also determine the necessity of fixing somewhat different approaches to the regulation of insolvency of these subjects compared to those that should be applied to ordinary citizens. The author concludes that it is necessary to fix as a general rule the obligation of the entrepreneur to repay the outstanding debt after the end of bankruptcy proceedings, as well as to establish the possibility to be released from this obligation only in a declaratory procedure.

Historical Traditions and Values as Foundation of the Russian Legal System

The amendments in 2020 to the Constitution of the Russian Federation of 1993 were a decisive step towards strengthening sovereignty in the international arena and the reception in the Russian Federation of historical traditions and value attitudes characteristic of Russia in any historical form of its statehood. The unity of state ideology, which is directly prohibited in the chapter «Fundamentals of the Constitutional System» of the Basic Law of Russia, has become the subject of special attention of the developers of the text of constitutional novels due to the impossibility of amending chapters 1, 2 and 9. Additions and changes made to chapters 3‑8 positively influenced and significantly softened Art. 13 (part 3), but did not completely eliminate the problems and contradictions between constitutional norms and the objective need to restore the ideological sphere in the Russian state, before the growing aggressive expansion of alien values imposed by a number of unfriendly countries. The discourse taking place in the scientific community and at all levels of public power in the state on the issue of the invariability of chapters 1, 2 and 9 of the Constitution of the Russian Federation leads to the idea of the advisability of revising the current constitutional act in the future. At the present stage, positive prospects are noted in solving ideological, socio-economic, geopolitical and other problems, as well as developing an effective strategy in the field of national security of the Russian Federation, which is greatly facilitated by the updated and improved Constitution of the Russian Federation in 2020.

Цифровые финансовые активы как технология фиксации имущественных требований и обмена данными о них

The authors explore the phenomenon of digital financial assets from the perspective of innovative investment technology. The dualism of legislative provisions interpreting the legal nature of these assets is criticized. The conclusion is substantiated that digital financial assets do not belong to objects of civil rights previously unknown to the Russian legal system, but represent property rights that are individualized in circulation by unique information codes. Being negotiable investment assets, they have a commodity-value nature; data on their ownership and transfer of rights to them are transmitted via Internet communications. Through digital financial assets, information technology has been implemented to record the property claims of participants in civil turnover and exchange data about them; they can submit mandatory requirements that are not legally prohibited from alienating them within the framework of assignable structures. Due to this innovative technology, participants in civil turnover receive the legal equivalent of a certain mandatory requirement in digital form, including a requirement fixed in equity securities, a requirement to transfer such securities, as well as corporate rights determined by participation in the capital of a non-public joint-stock company. The use of digital financial assets provides an opportunity for individuals and legal entities to build investment relationships with minimal intermediary participation, conduct financial transactions in a transparent manner, increase investment profitability, and simplify the search for counterparties.

Вещно-правовые механизмы регулирования соседских отношений

The author analyses adjoining landowners rights regulation within in rem legal framework. Adjoining landowners rights and obligations, reciprocal by default, publicly establish the limits of landowner’s right in use of his property. Landownership law regulation considered to be necessary in every legal system desiring to regulate relations in the sphere of property ownership and Russian legal system, still lacking this legal mechanism, is not an exclusion. In addition to the adjoining landowners rights per se, the article explores related legal mechanisms that allow adjoining property owners to change established limits of the legally protected ownership rights by means of private agreements, changing the volume of their rights, or even waiving of them. It is shown that private servitude can be the only legally appropriate mechanism solidifying the change in the volume of property rights. Thus, improving the regulation of adjoining landowners rights in the domestic legal system requires reconsidering role of the servitude law, its further development on the basis of more developed legal systems’ experience. That also means a return to Russian pre-revolutionary legal roots and reestablishment of legal mechanisms known from that times. The purpose of the study is to put forward proposals for a comprehensive reformation of adjoining landowners rights regulation.

Судебная практика как юридический институт

Based on the analysis of the works of legal theorists and scholars devoted to judgments about the legal nature of judicial practice as a source of law, its role and place in the Russian legal system, the authors stated that the independence of judicial practice was recognized only at the doctrinal level, but the value of judicial practice for the activities of courts, the improvement of legislation and the fruit-fulness of science was not disputed. The study of the normative consolidation of the category of judicial practice in legislation made it possible to show the procedural nature of judicial practice as a procedural institution, and the definition of its subject classification will improve the procedure for systematizing judicial practice.

К вопросу об определении места градостроительного права в системе права России

A relevant and controversial aspect in the modern theory of law in the development of the modern doctrine of the legal system is the question of the intersectoral division of the Russian legal system, the criteria for its construction, as well as the isolation and systematization of legal norms that are complex in nature. The purpose of the article is to establish intersectoral connections, criteria for systematization and the place in the system of Russian law of urban planning norms as a legal community that combines elements of private law and public law influence in the mechanism of legal regulation. A systematic approach and such logical research methods as analysis and synthesis made it possible to determine the place of urban planning norms in the system of Russian law as an independent branch of law with a special mixed type of legal regulation. Scope of application of the results: the main results and conclusions of the study can be used as the basis for the formation of new approaches to building a legal system and criteria for differentiating legal norms. In addition, the recognition of urban planning law as an independent branch of law will significantly facilitate the processes of law enforcement and law-making activities in the urban planning industry. Conclusions: the totality of the subject, method, principles, goals and functions of urban planning norms, forming a special mechanism of legal regulation, indicates the qualitative originality of the regulated sphere of social relations and the isolation of urban planning law as part of the Russian legal system as a branch of law. At the same time, the complex nature of urban planning law by type of legal regulation is due to the interpenetration of private law and public law interests.

Digital Law in the Russian Legal System

The transformation of public relations, taking place under the influence of the widespread introduction of digital technologies, required the formation of a new legal framework, which tends to constantly expand. In this regard, the possibility of distinguishing digital law as an independent branch is widely discussed in science, although the very possibility of using the combination of «digital law» is sometimes questioned. As an alternative to this combination, the categories of «Internet law», cyber law, etc. are periodically used. Based on an analysis of existing scientific points of view, as well as an assessment of the specifics of relations arising from the implementation of digital rights and the use of digital technologies, the author concludes that there is the possibility and expediency to divide digital law into sections. This is due to due to the specifics of the relations that make up its subject, characterized by the special subject construction, the scope of their practical implementation, the principles of building these relations. This in turn determines the peculiarities of the method of their regulation, characterized by a combination of imperative and dispositive approaches, legislative regulation while maintaining a significant role of self-regulation. At the same time, it must be recognized that building a coherent system of digital law is to some extent hindered by the process of permanent transformation of relations arising in this area.

Some Problems with the Legal Regulation of the Relations in the Field of Medical Tissue Technologies in the Russian Federation

This article substantiates the need for shaping a separate legal system to regulate the relations in tissue banking, as well as biomedical tissue and hybrid technologies. The key problems that have been faced by biomedical and cellular tissue technologies in Russia were analyzed. The major deficiencies and contradictions regarding organ and tissue transplantation in the current Russian legal system were pointed out. First, there have been no federal laws governing the activities of tissue banks. Second, the procedures of human biomaterial donation for medical use remain uncontrolled. Third, there has been no consistency in the retrieval, storage, and transportation of human biomaterials. Finally, the list and legal status of organizations engaged in relevant activities and the legal regime of biological material used for these purposes have not been defined. The study focuses on the practical problems of tissue banks and innovative biomedical technologies that require a legislative initiative. Possible ways to overcome the identified contradictions and problems were discussed.

Introduction of principles of accessibility of mediation in the tax sphere: adaptation of Chinese experience to the Russian legal system

In the article proposed to adapt the Chinese experience of mediation in relation to the alternative resolution of tax disputes in Russia. The authors study the legal regulation of Chinese people’s mediation, its principles and the procedure for the formation and free implementation of people’s conciliation commissions in China. In the article the authors substantiate the existence of the principle of accessibility of mediation in the system of mediation principles in China. The authors make proposals for introducing the principle of accessibility of the mediation procedure in the tax sphere, establishing special requirements for tax mediators (consultants), and defining a mechanism for state financing of the mediation procedure, the participants of which are individuals.

Administrative Dispute in the Heritage of Nadezhda G. Salischeva and the Contemporary Russian Legal System

Administrative Dispute in the Heritage of Nadezhda G. Salischeva and the Contemporary Russian Legal System

Problems of social protection of seafarers on ships under a foreign flag when leaving them Without the help of the shipowner

The article analyzes the evolution of conventional norms dedicated to the fight against shipowners (ship operators) who abandon ship crews without assistance in ports of foreign states. The article examines the norms of International Law, which are an integral part of the Russian legal system, related to the problem of financial support for crew members who were abandoned by the shipowner. The shortcomings of the existing legal methods and methods of influencing foreign employers (shipowners) violating the rights of seafarers, which have a negative impact on the effectiveness of the implementation of the real provision of their labor rights, are revealed. It is predicted that the problem of social vulnerability of seafarers engaged in labor activities on ships of foreign shipowners or on ships of Russian shipowners who have been transferred to a foreign “convenient” flag will worsen, due to the fact that the protection of labor rights has a pronounced international emphasis, and difficulties in solving such issues in the mode of traditional diplomacy are possible. The article explores the search for ways and mechanisms aimed at protecting seafarers from the actions of unscrupulous shipowners, as well as preventive steps to minimize the cases of abandonment of seafarers without means of livelihood in a foreign port, taking into account the trends of the latest legislation and the needs of emerging practice.

Правотворческая парадигма конституционного правосудия (на примере Конституционного Суда Российской Федерации)

The article examines the features of the law-making paradigm of constitutional justice. The conclusion is substantiated that the creation of “limits” of lawmaking cannot be an effective way to limit the creation of law, and the Russian legal system, as well as foreign legal systems, has special legal features that affect the legal order in the Russian Federation.

The Concept of an Administrative Act in the CIS countries: Comparative Legal Analysis

The article is devoted to the concept of an administrative act, which is developing in the friendly legal systems of the CIS countries, considered in three aspects: doctrine, legislation and judicial practice. It is stated that the Russian theory of administrative act, on the one hand, is a creative development of the French and German doctrine, and on the other hand, it continues to have a certain influence on the post-Soviet space. On the contrary, in terms of legislation on administrative acts, Russian reality is lagging behind, since the rest of the CIS countries have already adopted westernized laws that, along with the rules on administrative procedures, also establish the material legal basis for the institution of administrative acts. Finally, it is substantiated that in terms of judicial practice on issues of control over the legality of administrative acts, the Russian legal system, despite a certain lag in the regulatory framework, is among the progressive among other CIS countries. The conclusion about the advisability of integrating the achievements of the CIS legal systems for the purposes of their further development is substantiated.

Между Европой и Азией: становление правовой системы России

The article presents results of studies of the historical choice factor in the process of establishment of the Russian legal system from the standpoint of influence of European and Asian legal traditions on evolution of Russian law. The author brings forward some methodological approaches to solution of research tasks solved in this sphere of historical jurisprudence.

Legal Barriers to the Application of the Doctrine of Substantive Consolidation in Bankruptcy Cases

The paper examines the relationship between the principles of property isolation of a legal entity and limited liability with the institution of material consolidation in cases of bankruptcy of corporate groups. The purpose of the paper is to formulate grounds for derogation from the basic principles of corporate law in the bankruptcy of a group of companies, based on the arguments of opponents of the application of the doctrine of material consolidation. The paper concludes that for the Russian legal system, the application of the material consolidation regime is permissible only in exceptional cases. Such include cases when there is an obvious abuse of rights on the part of the debtor, controlling persons and affiliated creditors as well as free movement of assets within the business group, the transit nature of the movement of funds through the accounts of persons included in the corporate group, the complexity of intra-group relations resulting in that it is almost impossible to understand which legal entity owns the assets.

Strategies of Women’s Behaviour in Eighteenth-Century Courts (as Reflected in the Materials of the Investigative Chancellery)

This article analyses the main ways of acquittal and defence of women in Russian courts in the second quarter of the eighteenth century. Women’s experiences of the investigative and judicial process in eighteenth-century Russia have not been the subject of specific research in historiography, nor have the discursive practices of male and female investigators. The paper focuses on two main questions: Were the accused able to construct their own narratives and thus influence the course of the trial? Were the female perpetrators able to exploit the existing gender order and turn it to their advantage? The aim of this article is to examine what opportunities for self-defence the modern Russian legal system offered, what limitations it imposed, how sensitive it was to the gender of the accused, and how women on trial were able to influence the course of the trial. The study is based on a series of investigative materials produced by the Investigative Chancellery between 1730 and 1750. By analysing the speeches of the accused, their typology and comparing the information they contain with other testimonies, laws and judgements, it is possible to identify the main ways in which women were acquitted. The most common of these were “word and deed”, in the hope of being transferred to another institution or of delaying the sentence for the main offence; the inclusion of third parties in their testimony, referring to subornation or rape; false statements, including those concerning their social status; and the declaration of insanity. However, the only way of obtaining an acquittal that had any chance of success was for the accused to declare that she was pregnant. In general, the criminal process in modern Russia was structured in such a way that no strategies or tricks were taken into account. In the end, the only thing that mattered was the testimony of witnesses and the testimony of the accused under torture.

The transformation of the nuclear law of the Russian Federation into an independent public complex branch of law as a way to strengthen global nuclear security in the world

This article considers the process of transformation of the Russian Federation nuclear law into an independent public complex branch of law and its important role in improving global nuclear safety. Since it is well known that the criteria of distinguishing branches of law are usually the subject and method of legal regulation as well as the existence of their own codification, the authors are confident of such a need. The results of the analysis of the state corporation Rosatom activities serve as the basis for the proposed theses and only confirm this confidence. The main idea of the article is to assert the need for changes in the Russian legal system structure in order to increase the effectiveness of regulation in the field of nuclear safety. The paper examines the evolution of nuclear law in Russia, identifies the basic principles and norms of this area of law as well as the need to make changes to adapt to modern challenges and threats. Supporting its position by analyzing the current state of the Russian nuclear industry and world standards in the field of nuclear safety, the article suggests practical steps to strengthen legal regulation to ensure safety in the nuclear field. Special attention is paid to the importance of strengthening international nuclear safety through the modernization of the national nuclear legal system, its compliance with international norms and standards. The article discusses current issues, including the development of nuclear doctrine, control of nuclear materials, responsibility for violation of international nuclear obligations and other aspects affecting global nuclear security. The study is an important contribution to understanding the problems of nuclear law in the context of global safety, and also substantiates the need for independent development of this branch of law to ensure stability and security on the world stage. The authors of the article offer specific recommendations for improving legislation and practice in the field of nuclear law in order to strengthen global nuclear safety

Critical analysis of the law-making paradigm of the Constitutional Court of the Russian Federation

The constitutional control of the Constitutional Court of the Russian Federation is aimed, to a certain extent, at creating (temporary) legal norms. Law-making in itself is not the basis for the activity of the Constitutional Court of the Russian Federation, however, at the same time it is hardly possible not to recognize the existence of a special function for the creation of law for the Constitutional Court of the Russian Federation. This function of constitutional justice is implemented in practice through the prism of constitutional control. At the same time, approaches to determining the powers and functions of the Constitutional Court of the Russian Federation on this issue differ significantly from each other. Based on this, the subject of the study is the decisions and legal positions of the Constitutional Court of the Russian Federation, which have an impact on the Russian legal order. The research methods used are logical, comparative legal, formal legal, hermeneutic and empirical methods of cognition. The discussion on the role and significance of the law-making function of the Constitutional Court of the Russian Federation is far from over, and assessments of such activities of the Constitutional Court of the Russian Federation vary from radical to conservative. The author concludes that the law-making function of the Constitutional Court of the Russian Federation is a secondary function of the Russian judicial review body, it is not the necessary role of the Constitutional Court of the Russian Federation. At the same time, the processes of constitutionalization and, in particular, the creation of temporary legal norm by the Constitutional Court of the Russian Federation affect the Russian legal system.

Organization and Implementation of Public Tax Control in Russia: Modern Problems and Ways to Solve Them

Annotation. This scientific research addresses the issues of the functioning and development of public tax control, which is the most important component in the system of guarantees of both the system of constitutional principles (especially democracy and the participation of Russian citizens in the functioning of the public administration system), and the system of rights, freedoms, legitimate interests of individuals and legal entities in Russia. The necessity of incorporating the institution of public tax control into the Russian legal system is substantiated. The article examines various approaches to defining the concept of public tax control and substantiates its author's definition. The work analyzes modern problems that hinder the development of public tax control in Russia, including: the lack of enshrinement of this institution of civil society in the Constitution; not developing specific forms, methods and types of public tax control measures in the Russian scientific legal doctrine; the lack of real powers among subjects of public control to exercise effective public tax control; lack of specialized subjects of public control in this area; poor use of modern information and communication technologies by these entities in their activities; insufficient funding for their activities from state and municipal budgets; weak use of foreign positive experience in organizing and functioning of control of civil society in this area; the absence of specific measures of responsibility for counteracting the legitimate activities of representatives of subjects of public control in criminal and administrative legislation. The article develops and substantiates a system of measures to resolve these problems by: incorporating public tax control into the Constitution of Russia; its details in Russian legislation; expanding the powers of subjects of public control; creation of special entities in the field of public tax control, independent of tax authorities; using in their activities positive foreign experience in exercising public control in the field of tax legal relations; developing a system of federal programs to develop the organizational, technical and financial base of subjects of public control, increasing their use of modern digital technologies; tightening measures of criminal and administrative liability for opposing the legitimate activities of subjects of public tax control.

The sentencing specifics of the courts in the Lugansk People’s Republic during the special military operation

This article highlights the historical aspects of integrating the Lugansk People’s Republic (LPR) into the Russian Federation. The authors consider the specifics of the application of Russian criminal law by the courts of the LPR during its integration into the Russian legal system. The mechanism is shown which provides a unique punishment for the defendants who participated in special military operation for protecting the civilian population of Donetsk and Lugansk People’s Republics that is realized by giving suspended sentences. The article reveals the specifics of the courts acknowledging the defendant’s participation in a special military operation as a mitigating circumstance. The current practice of imposing punishment upon those who committed crimes before the day of LPR’s incorporation into the RF is examined. The issues of the formation of judicial practice of applying the norms of criminal and international law when dealing cases of crimes against civilians of the LPR were examined. The results show that the courts reasonably equally apply the provisions of the criminal law of LPR if it does not worsen the status of the convicted persons.