Russian Doctrine Research Articles

Enforcement of the right to a bond of arrest in insolvency proceedings in Russia and Germany

The legal status of depositors and the manner in which their claims are met are the subject of close research. The problem of bail is little studied in Russian doctrine. The purpose of the present study is to formulate, on the basis of regulation and doctrinal thinking in Germany, where the right to a bond of arrest has been successfully applied, a framework for the exercise of the right of a bond of arrest in insolvency proceedings (bankruptcy) for Russian legislation. The main methods of the study are: Comparative law, which allows the study of the theoretical provisions of the right to bail and the proposal of appropriate legislative designs; as well as the historical-legal method combined with the systematic method of analysis of the problem under investigation. Synthesis, interpretation and teleological methods are also used. The German experience of the legal regulation of a creditor whose claims are secured by the seizure of property has been used in the analysis of the problems of a bond of arrest. The legal nature of the right to bail, which is the subject of debate in the doctrine of Germany and Russia, has been analysed. It has been concluded that the right to an arrest bond is a special right of bail, together with a contractual and legal bond. It is substantiated that there is a gap in Russian law regarding the legal position of a creditor in insolvency proceedings (bankruptcy) in the event of securing his claims by seizure of the debtor’s property. It is considered to be a breach of the balance between public and private interests. It is justified that the right to a bond of arrest is subject to the law of procedural law and proposals have been made to regulate the legal position of creditors entitled to a bond of arrest in insolvency proceedings (bankruptcy).

Pure Economic Losses from the Russian Perspective

Abstract The article is devoted to the issue of compensation for pure economic losses under Russian law. The category of pure economic losses came into the focus of Russian researchers relatively recently. Currently, the mainstream discussion of Russian scholars on the topic is based on the analysis of foreign cases and arguments related to them. Meanwhile, Russian case law has been enriched with precedents that can lead to a non-consistent way for resolving such kind of disputes. We propose the approach that the reimbursement of pure economic losses directly depends on the determination of the limits of tort liability or its conditions. Thereby, the comprehensive analysis of these conditions will make it possible to more clearly define the scope of the pure economic losses. Nevertheless, the conservatism of the Russian doctrine of tort law and the inconsistency of law enforcement does not always allow us to apply the usual conditions of tort liability as a method for analyzing pure economic losses under Russian law. Thus, we consider the arguments for and against the recovery of pure economic losses that have developed abroad and are often discussed by Russian scholars. Besides, the article deals with the most important cases in which the courts have granted claims for the recovery of the pure economic losses. Nevertheless, the reasoning of the courts does not always look satisfactory, since it has not always been supported by the strict analysis of conditions of tort liability. We also consider cases where courts’ attention to factual circumstances prevails over their legal analysis. Although these cases reflect the current Russian political agenda, we posit that they provide with valuable material for legal discussion on the issue of recovery of pure economic losses. The coherent application of liability conditions would have removed the political context of these cases and led to the concentration of courts’ attention on the legal details of the cases. As a result, the authors postulate the need to analyze the core of tort liability, i.e., its conditions. This will create a more subtle mechanism for setting up tort liability and develop immunity of tort law to exogenous factors related to the political context.

Об использовании информации и материалов,полученных в ходе оперативно-разыскной деятельности, для доказывания истины по уголовному делу

The modern russian doctrine of criminal procedural evidence includes a ban on the use of the results of operational investigative activities in proving. It is based on the ideology of the investigator as a subject of proving objective truth. The investigator is authorized by means of investigative actions to turn the results of operational investigative activities into means of proving the truth. In the accusatory criminal procedure system, information and materials received by both parties are transformed into a means of proving the truth only after cross-checking. As the Italian experience shows, the transition from the investigative system to the accusatory criminal procedure system and the adversarial technology of proving the judicial truth is inevitable in the context of building a rule of law and democracy.

Judicial precedent as a formal source of law: theoretical issues

The article provides a dogmatic analysis of the category judicial precedent as one of the types of formal source of law. The meaning and main types of legal precedent are determined. The construction of the judicial precedent is considered through the prism of its development in English law (common law and law of equity), the substantive features of the stare decisis principle are analyzed as a fundamental basis for the mandatory application of the judicial precedent in practice. An universal definition of a judicial precedent based on the analysis of its essential features is proposed. The author examines the categories ratio decidendi and obiter dictum within the framework of the judicial precedent and analyzes the features of their identification. The article provides a logical relationship between a court decision, judicial practice and judicial precedent, considers the main types of judicial precedent (binding, persuasive, rejected), their substantive features and regulatory significance. A comparison between precedent de jure2 and precedent de facto is made, the value of the interpretation precedent in relation to the construction of the legal position of the highest court is established. The conclusion about the formation of the Russian doctrine of judicial precedent is made both at the level of the general theory of law and in the branches of Russian law.

The Sources and Meaning of the Term Decency in the Writings of Prince Dmitry Golitsyn on Fine Arts

The author focuses on one of the most important terms of normative aesthetics and art, decency, which occupies a prominent place in the writings of Prince Dmitry Golitsyn (1734–1803), devoted to the issues of architecture and fine arts. A detailed study of the origins of decency and the meaning of this concept leads to the identification of three stages in its development, consistently considered with the involvement of both source texts and the works of modern scholars. The first stage was the flourishing of classical ancient Greek art, which corresponds to the concept of τὸ πρέπον, formed in the consciousness and rhetorical culture of Athens. In relation to the fine arts, its importance cannot be overestimated, since decency was not conceived without an adequate and eye-catching external expression of typical images, including their social status and ethical content. Under its influence, a system of canons of European art was born in ancient Greece. The second stage is associated with the Renaissance, when the idea of convenevolezza arises. It was focused on the Classical Antiquity and the appropriate iconographic tradition and therefore had a pronounced retrospective character. Finally, the classicism of the Enlightenment era, or neoclassicism, the time of Golitsyn’s life and work, picks up the baton of the norm in art and the deviations from it made by nature itself. Golitsyn’s interpretation of decency in his treatises and its correct understanding by art historians are important, since these works formed the basis of the Russian doctrine of normative, primarily academic art. Decency in the understanding of the ancient Greeks, Italians of the Renaissance and enlighteners of the 18th century did not completely dissolve in the works of the great and ordinary masters of those distant times. It is invariably revived when it comes to the visualization of traditions, proprieties and various norms within artistic culture, about the artist’s service to the model, the canon.

Проблемы защиты конституционных прав граждан в условиях глобализации и цифровизации

The article discusses the main approaches to the problem of legal protection of constitutional rights of citizens in Russian and foreign legal doctrine. Given the complexity and scope of this topic, the main attention is paid to such aspects as the protection of constitutional rights of citizens in the context of globalization and the protection of constitutional rights of citizens in the context of digitalization. It is argued that the processes of globalization and digitalization have posed a number of urgent issues to scientists, and the scientific community should be ready to resolve them. Based on the analysis, it is concluded that the processes of globalization and digitalization entail the weakening of national legal institutions, which is a serious threat to the constitutional rights of citizens.

Eurasianism and geopolitics: Social mythologemes of space

The article considers the origins of Eurasianism as a Russian social doctrine that emerged as an answer to the Western geopolitical concepts, in particular of the Anglo-Saxon and German geopolitical schools. Both concepts serve to justify social institutions and associations based on the difference between the spaces of the Eastern and Western parts of Eurasia. The authors argue that geopolitics of both the Western-European and Eastern-European types is based on mythologemes which claim to be of scientific importance but are not capable of achieving this status. The article shows that both theories claim (1) the invention of an ideal timeless homeland of society on the basis of a mythological interpretation of space; (2) possession of sacred knowledge (through the sacralization of space) which is actually profane. The key difference between Western geopolitical schools (Anglo-Saxon and German) and Eurasianism is the proposed connection between space and a specific society. Geopolitics proceeds from the constant spatial opposition as a factor of social-political competition. The geopolitical assessment of reality is based on the need to attack the alien space due to its initial, natural hostility. The geopolitical hostility and even aggressiveness contradicts the defensive nature of Eurasianism which declares that space unites peoples with similar values; therefore, their societies should defend their space of development from the encroachments of the Western countries. Thus, Atlanticism as a global project of the contemporary Western geopolitics fundamentally contradicts Eurasianism which does not accept hegemonism and supports the principle of a multipolar world; today, the level of conflict between these projects is not high, although there are no prospects for this conflict resolution.

Russia and International Law in 2000–2020: 100 Theses About Facts and Trends

The paper is an overview of the international legal stances of Russia, which were formed in the period from 2000 to 2020. The application of international law within the legal order of Russia is complicated by inconsistency of the Russian monistic concept, unclear status of customary law and general principles of law; lack of a developed judicial tradition. The Russia’s treaty policy comprises wide participation in general U.N. treaties, as well as bilateral treaties in the field of economic cooperation and legal assistance; unwillingness to participate in treaties, if this may entail negative political consequences. Russia backs down from some minor territorial claims in order to ensure stability; in some cases, she does not formulate a clear legal stance, limiting herself to political statements; she refuses to use judicial mechanisms, preferring bilateral negotiations and/or maintaining the status quo, and does not make efforts to create coalitions that support its claims. Russia uses international organizations rather as political fora, and not as a mechanism to create new legal order; she often takes a passive position when considering issues that do not affect its interests; she makes efforts to use the U.N. mechanisms, but sometimes lacks allies and trust from other members of international community. Russia recognizes the jurisdiction of international courts, but takes a passive position by rarely filing suits, objecting to jurisdiction and refusing to participate in the proceedings. The postSoviet international courts are politicized and do not make a serious contribution to the development of integration law. Russian doctrine is experiencing a serious crisis, which is caused by various reasons and can hardly be overcome by the efforts of the corporation itself

Cross-Border Oil and Gas Transactions in Private International Law: Concept, Types, and Features of Regulation

The paper proposes to refer to cross-border oil and gas transactions as contracts mediating relations in the field of international circulation of hydrocarbons. These include all transactions complicated by a foreign element (foreign entity, object, legal fact) and concluded regarding the exploration, development, processing, transfer, transportation of oil and gas as a commodity in the course of entrepreneurial and investment activities. Based on the Russian and foreign doctrine of private international law, the author examines the most common transactions in the industry, analyzes their features, and also proposes a basic classification of contractual structures. In the absence of a wide range of international treaties governing cross-border oil and gas transactions, the author concludes that the conflict of laws method of determining the applicable law is dominant. The importance of non-state regulators lex petrolea is noted, capable of complementing, but not replacing, national legal regulation.

Tax Compliance and its Enforcement Instruments: Russian Approach

The absence of a tax compliance theory in the Russian doctrine predetermined the objectives of the study – the search for promising tools to achieve the willingness of taxpayers to comply with the tax legislation voluntarily, as well as determining the place of coercive measures against taxpayers in order to ensure tax compliance in the Russian Federation. The work is based on the complex application of a number of general and special research methods (structural and functional analysis, comparative legal, formal-logical, system-structural methods). The information base of the research is represented by domestic legal acts and judicial practice, official data of the Federal Tax Service of Russia, scientific works of both Russian and foreign authors. The study’s main outcome is to validate the conclusion that tax administration (in order to ensure tax compliance) must combine not only the tools of coercive influence (tax audits, horizontal tax monitoring, anti-tax avoidance measures aimed at tackling aggressive tax planning) but also stimulating tools: interaction between tax payers and tax authorities in the form of information exchange, sending recommendations and proposals to the taxpayer on independent clarification of the tax base and tax obligations

Issues of Strategic Legal Regulation of the Implementation of Digital Technologies in Transport

Despite the awareness of the importance of digital transformation of highways as the basis for life safety, social and economic development of the country, the issues of technical, legal and financial regulation of the digitalization of the transport complex at the federal and regional levels, a detailed assessment of the impact of digital technologies in transport on social and economic processes in modern Russian society. In the Russian doctrine in recent years, research has been carried out in general on the formation and development of the digital economy in Russia, in which intelligent transport systems are mentioned pointwise and only in general terms without their comprehensive analysis. Based on the assessment of the current state and trends in the development of info-communication transport infrastructure in Russia, foreign experience, potential problems of the implementation of digital technologies in transport in the socioeconomic and legal dimension were identified, specific proposals were formulated on the legal and financial regulation of issues and minimization of the risks of liability for harm in conditions development of information transport systems. The role of the programs “Digital Economy of the Russian Federation” and “Safe and High-Quality Roads” in the development of intelligent transport systems has been analyzed, and as a result, promising areas for the use of unmanned vehicles to improve the quality of life of people, develop entrepreneurship, high-tech industries, and increase the investment attractiveness of Russia have been identified. and strengthening its position in the international arena. The study used the following methodological principles: objectivity; determinism; historicism; integrity; consistency; structure; functionality; hierarchy; pluralism of explanation and understanding of law; comparative studies. The study uses private methods: legal analytics, legislative techniques, legal comparative studies, expert assessments. As the main results of the study, the features of the legal regulation of new and promising relations arising in the digital economy have been identified. This is a strategic legal planning and legal experiment. Taking into account this conclusion, a system of prerequisites for the development of intelligent transport systems was formulated based on the analysis of national programs. The system of prerequisites includes three levels: technological prerequisites, infrastructural and regulatory.

Specifics of nature of the biometric data definition in law of the European Union

The article offers analysis of the approaches in Russian and European legal doctrine to the definition of “biometric data”, as well as the evolution of the legal definition formation of biometric data in the legislative acts of the EU. The article analyzes the role of biometric data in the personal data system, their characteristics, and the determination of a list of key features that allow an individual's data to be classified as biometric data. Special attention is paid to the list of characteristics that fall under the category of biometric data in accordance with existing scientific approaches on personal data, as well as the provisions of the General Data Protection Regulation. The article highlights the main problems of interpretation of the category of biometric data in legal sources, and also suggests the author's legal definition of biometric data that meets, in the author's opinion, the main criteria that characterize specific data of an individual as biometric.

Influence of legal principles on justice

The objective of the article was to determine the essence and legal implementation in Russia of principles such as: independence of the judiciary, relative truth, contradictory nature, legal certainty of judicial acts and discretion. In the countries of the Roman-Germanic legal order, it is no coincidence that legal principles are of great scientific and applied importance. The presence of a certain system of procedural principles makes it possible to assess the existence of justice in the country, the stability of a judicial decision and the fairness of judicial acts. Thus, the principles of the law directly affect the level of legality in each state. Currently, some procedural principles give rise to a discussion in Russian doctrine about their essence and content. The topic is presented from the point of view of general scientific methods (systems analysis, structural and functional, historical), the method of theoretical analysis, specific scientific methods (comparative jurisprudence, technical and legal analysis, concretization, interpretation). The theoretical basis was cognitive theory. It is concluded that the principle of the independence of the judiciary is not fully operational in the Russian Federation.

Сущность концессионного соглашения в американском праве

The nature of the institute of a concession agreement is still not obvious. This aspect is caused by the fact that the concession agreement combines private law and law principles. For a deeper study of this institution, it is necessary to refer to foreign law. This article deals with the concept of a concession agreement in US law. In the United States, the essence of the concession agreement is subject to the theory of complexity, i. e. an agreement at the junction of and private law. The article explored the and private legal elements of the theory of complexity and how they affect the regulation of the concession agreement in US law. The studied case law, doctrinal sources and historical prerequisites make it possible to establish that the institution of concession is a kind of franchise. US law divides franchise into and private. Moreover, the institution of franchise meets all the features of concession. The rules of the US Federal Procurement System discussed in the article define a concession agreement as a government contract for the of services from a concessionaire for the needs of the US Government. The concept of a concession agreement as one of the methods of procurement was considered in the Russian doctrine and is not a feature of only US law. A study of the impact of the concept of on the institution of concession in American and Russian law was also made. The author proposes to consolidate the concept of public interest in the domestic legislation on concessions, taking into account the American experience. The article makes a comparative legal analysis of the institution of concession with other similar institutions in US law, which indicates that there is no uniformity in terms of American law, which requires a more detailed study of a specific legal institute in US law. Applied to a concession and concession agreement, the complexity in comparison is caused by the existence of different types of concessions, for example a mining concession. Also, the legislative acts of separate government departments and agencies contain their own qualifications for the concept of a concession and a concession agreement.

Prospects for bringing countries to international responsibility for the spread of mass diseases (on the example of the People’s Republic of China and COVID-19 pandemic)

The COVID-19 pandemic, which commenced in 2020 and continues into 2021, called on the world re-evaluate many ordinary phenomena, including the impact on the international law, and namely international responsibility. The unprecedented scale of the problem, worldwide lockdown, as well as global deceleration of virtually all processes have led the experts, politicians and regular persons to seek the answer the question of whether anyone should be held responsible for what has happened. This article dwells on whether it is possible to bring the country to international responsibility for the spread of a mass disease relying on the theoretical and practical aspects of the branch of international responsibility. Unlike the foreign expert community with a dynamic discussion of implementation of responsibility for the pandemic, the Russian doctrine has not conducted similar analysis. Certain public political figures openly blamed China for the outbreak of COVID-19 pandemic, referring to the fact that it originated in the Chinese province Wuhan. The United States have initiated lawsuits against China and Chinese government over the pandemic. It is of utmost importance to analyze the legitimacy of such articulation of the question is, and what the evidence base should be in such cases. In this regard, the analysis of the theoretical prerequisites and feasibility for bringing the countries to international responsibility for the spread of mass diseases have a crucial scientific and practical significance.

Problems of Legal Qualification in Private International Law

When resolving cross-border disputes, courts inevitably face the need for legal qualification of the dispute. The complexity of the process of qualifying disputed legal relations is due to many reasons, such as the need to consider the content of foreign law, the presence in different jurisdictions of different mechanisms of the legal qualification of legal relations, as well as the level of development of private international law in a particular country. The features of various types of qualifications have been studied in this paper, taking into account the current trends in the development of private international law. Methods: The disclosure of the topic was carried out from the standpoint of general scientific methods (sociological, systemic, structural-functional, historical), the method of theoretical analysis, special scientific methods (comparative jurisprudence, technical and legal analysis, concretization, interpretation). The methodological basis of the study was the method of the theory of knowledge. The purpose of the study: To determine the essence of the legal qualification of private international relations, analyze the various stages of the legal qualification of cross-border relations in the Russian jurisdiction, identify their features, and formulate the rules of qualification that have applied significance based on the norms of positive law and the Russian doctrine. Results: The stages of the legal qualification of cross-border relations were identified, its essence was determined, and the signs of legal qualification for certain contractual obligations were revealed. The paper analyzes the current capabilities of the lex fori and lex causae qualification methods, as well as justifies the prospects and advantages of independent qualification methods.

Scientific support of small fruit growing in Russia and prospects for its development.

It is possible to achieve the target indices of the Russian Doctrine of Food Security (self-sufficiency in fruits and berries should be at least 60 %) by combining the competencies of science and business. At present, hundreds of varieties of small fruit crops are included in the State Register of Breeding Achievements Admitted for Use. Domestic breeders have obtained substantial results; the share of their assortment is 79-100 %. Federal Research Center of Horticulture (Moscow) (101 pcs.), Federal Altai Research Center of Agrobiotechnology (Barnaul) (85 pcs.), Michurin Federal Research Center (Michurinsk) (42 pcs.) are the leaders in the number of created hybrids and varieties. Over the past five years, 133 new breeding achievements of traditional small fruit crops have been submitted to the State variety testing, the originators of which are research institutions, private companies and individuals. The creation of modern seed-breeding (nursery-breeding) centers (SBC) on the basis of leading specialized research institutions is expected to be the solution to the problems of modern breeding and nursery breeding and to give impetus to the development of domestic small fruit growing. The research programs of the SBC involve an integrated approach that combines the knowledge and capabilities of researchers from different disciplines, the concentration of a complex analytical instrument base in the Centers of collective use, the using of biotechnological and molecular genetic research, along with traditional methods of breeding. An analysis of the achievements in small fruit growing in research institutions under the jurisdiction of the Ministry of Science and Higher Education of the Russian Federation revealed a huge scientific potential (genetic collections, hybrid funds) for creating competitive commercial varieties and technologies for their cultivation by establishing plantations with certified planting material in accordance with international requirements. Information from literary sources indicates that one of the main criteria for the value of varieties is resistance to harmful viral diseases. The cultivation of such varieties will reduce the cost of producing planting material for small fruit crops of the highest quality categories. In the near future, the most relevant areas for the breeding of small fruit crops will be: breeding for resistance to the most harmful viruses, winter hardiness, increased transportability and long-term post-harvest storage of fruits, suitability for mechanized cultivation, high content of biologically active substances.

Features of the Practical Application of the Institute of Forced Buyout of Animals

The paper is devoted to the analysis of the institution of force buyout of animals provided for under Art. 241 of the Civil Code of the Russian Federation. The practical application of the buyout under consideration is associated with a number of difficulties, in particular, with the lack of a normatively fixed concept of a humane attitude towards animals and with the difficulty of determining the balance between inhuman attitude and cruelty. To analyze these concepts, the author turns to the Russian doctrine, judicial practice and European regulation, studies the concept of welfare and the fundamental five freedoms of animals. The paper also examines the relationship between the two elements of the institute of forced buyout named in the provisions of the Civil Code of the Russian Federation as the establishment of a violation by the owner of regulatory requirements in the field of handling pets and inhuman treatment. A separate issue, raised in the paper, is the procedure for determining the value of the repurchased animal by the court that must take into account all the applicant’s costs associated with the treatment of the animal after the buyout.

"Close Connection" Category in International Civil Procedure and in Conflict of Laws

The use of "close connection" in conflict of laws area and in international civil procedure preconditions the question whether it is possible to interpret it uniformly both as a basis for establishing the jurisdiction to resolve cross-border private law dispute, and as a basis for choosing the applicable law.When studying close connection within the framework of conflict-of-laws regulation, the author of the paper, along with the concept of "close connection" examines the concepts of "connection with only one country" and "the closest connection". The paper also discusses the concept of Proper law which, as a rule, in the Russian doctrine is identified with the category of close connection.Analysis of the close connection as the basis for establishing jurisdiction has led to the conclusion that it is necessary to apply a differentiated approach to determining the content of close connection within the framework of Conflict of Laws and international civil procedure. This assumption is based on the fact that when establishing jurisdiction to consider cross-border private law disputes on the ground of a close connection, a special task is solved to overcome the conflict of jurisdiction while observing the principle of equality between judicial procedures of different states, as well as the principle of international judicial cooperation. In addition, within the framework of the international civil procedure, the concept of “foreign element” preconditioning the manifestation of a close connection of the disputed legal relationship with the court of the state, can be endowed with additional content except the content attached to the foreign element within the framework of the conflict of laws, namely: obtaining evidence abroad; enforcement of a court order abroad, etc.

Scientific support of small fruit growing in Russia and prospects for its development

It is possible to achieve the target indices of the Russian Doctrine of Food Security (self-sufficiency in fruits and berries should be at least 60 %) by combining the competencies of science and business. At present, hundreds of varieties of small fruit crops are included in the State Register of Breeding Achievements Admitted for Use. Domestic breeders have obtained substantial results; the share of their assortment is 79–100 %. Federal Research Center of Horticulture (Moscow) (101 pcs.), Federal Altai Research Center of Agrobiotechnology (Barnaul) (85 pcs.), Michurin Federal Research Center (Michurinsk) (42 pcs.) are the leaders in the number of created hybrids and varieties. Over the past five years, 133 new breeding achievements of traditional small fruit crops have been submitted to the State variety testing, the originators of which are research institutions, private companies and individuals. The creation of modern seed-breeding (nursery-breeding) centers (SBC) on the basis of leading specialized research institutions is expected to be the solution to the problems of modern breeding and nursery breeding and to give impetus to the development of domestic small fruit growing. The research programs of the SBC involve an integrated approach that combines the knowledge and capabilities of researchers from different disciplines, the concentration of a complex analytical instrument base in the Centers of collective use, the using of biotechnological and molecular genetic research, along with traditional methods of breeding. An analysis of the achievements in small fruit growing in research institutions under the jurisdiction of the Ministry of Science and Higher Education of the Russian Federation revealed a huge scientific potential (genetic collections, hybrid funds) for creating competitive commercial varieties and technologies for their cultivation by establishing plantations with certified planting material in accordance with international requirements. Information from literary sources indicates that one of the main criteria for the value of varieties is resistance to harmful viral diseases. The cultivation of such varieties will reduce the cost of producing planting material for small fruit crops of the highest quality categories. In the near future, the most relevant areas for the breeding of small fruit crops will be: breeding for resistance to the most harmful viruses, winter hardiness, increased transportability and long-term post-harvest storage of fruits, suitability for mechanized cultivation, high content of biologically active substances.