No. 6 (2020): Russian Law: Education, Practice, Research. 2020. № 6

Bublik V. A.

On the Legal Regulation of Cross-Border Insolvency in the Russian Federation

Cross-border insolvency remains a poorly studied topic in Russian legal literature. In addition, there is no special legal regulation in this area: the legislative provisions concerning cross-border bankruptcy are limited to indicating the application of the principle of reciprocity when deciding on the recognition of foreign judgments and the extension of the principle of national treatment to foreign creditors. Moreover, even the principle of reciprocity is not applied by the courts due to its narrow interpretation. At the same time, general rules in such disputes are essentially inapplicable.

Domestic courts use the collision binding lex fori concursus despite the absence of its legislative consolidation. This approach cannot be called effective. An analysis of the small number of judicial decisions and conflict legislation allows us to state that such conflict of laws as the personal law of an individual and a legal entity are inapplicable to cross-border insolvency issues. The author notes that legislative acts in the area under study have not been adopted. It is concluded that the existing legislation is ineffective in regulating cross-border insolvency (which, from the point of view of legal policy, suits the Russian legal order) and, in fact, is aimed at protecting domestic creditors.

Keywords: cross-border insolvency, bankruptcy, material and procedural aspects of the institution of cross-border insolvency, foreign element

 

Gubareva A. V., Kovalenko K. E., Kovalenko N. E.

Problems of the Legal Status of Cryptocurrency in the International Settlement System

Cryptocurrency is currently replacing the usual payment units from the financial market. At the same time, there is no consensus on the legal nature and legal status of cryptocurrency.

The article discusses the approaches to the regulation of cryptocurrency abroad (in Germany, Switzerland, USA, China) and in Russia. It is noted that many countries use the «currency of payment law» as a universal conflict of laws binding when determining the applicable law in the field of monetary obligations. However, not all national legal systems recognize cryptocurrency as a currency, so the issue of choosing the applicable law remains unresolved. The authors believe that the participants in the transaction can make the optimal choice themselves through the implementation of the principle of autonomy of will.

The results of the study of the perception of cryptocurrencies in 2018 (ING International Survey) are presented. The disadvantages of using cryptocurrency (its instability, hacker attacks on digital wallets, the lack of an appropriate legislative framework, the risk of losing cryptocurrencies due to errors in using it) are analyzed. The authors point out that the development of unified rules in the field of the use of cryptocurrency will entail a lot of difficulties associated, among other things, with the inability to control cryptocurrency movement, the difficulty of countering the legalization of proceeds from crime, etc.

Keywords: cryptocurrency, «currency of payment law», international settlement system

 

Voronin B. A., Chupina I. P., Voronina Ya. V.

Economic and Legal Regulation of Agriculture in Modern Russia

One of the greatest strengths of Russia throughout its history has been the development of agriculture. The paper presents the opinions of scientists on the importance of the relationship between law and economics in the framework of regulating the development of agriculture in Russia. The changes in the economic and legal regulation of this sphere in Russia from the end of the 20^th century to the present day are described. This study uses methods of comparison, analysis, synthesis, and interpretation.

The provisions of the Federal Scientific and Technical Program for the Development of Agriculture for 2017–2025, the State Program for the Development of Agriculture and Regulation of the Markets of Agricultural Products, Raw Materials and Food for 2013–2025 are presented. It is concluded that for the preparation of legal acts focused on new technological solutions in the area under consideration, an integrated interdisciplinary approach to research and forecasting the implementation of scientific developments in agricultural production is required.

Keywords: agriculture, agricultural activity, legal regulation of agriculture, economic and legal support, agricultural law, agricultural legislation

 

Chudinovskaya N. A.

On the Reform of the Institute of Reconciliation in the Civil Procedure

The author attempts to evaluate the results of the reform of the institute of reconciliation of the parties under the Federal Law of July 26, 2019 № 197-FZ.

A number of positive aspects of the reform was highlighted: the unification of legislation in the field of reconciliation, the detailed legal regulation of conciliation procedures, the use of a conceptually correct approach to understanding the settlement agreement as a legal fact that completes reconciliation procedures, and not as an independent procedure, etc. However, the author also notes some issues that should be addressed. In particular, judicial reconciliation should be considered as a special case of mediation, and not as an independent conciliation procedure. It is proposed to give judicial reconciliation the character of mandatory mediation appointed by the court. The author expresses her point of view on such topical issues as the specifics of reconciliation of the parties in complicity, the choice of the form of stopping the trial, subject to the use of conciliation procedures.

In conclusion, the possibility of notarization of certain settlement agreements is discussed. In particular, such a procedure can be applied to so-called settlement disputes, where the terms of a settlement agreement usually come down to reducing the amount of debt, or setting new payment terms.

Keywords: reconciliation of the parties, conciliation procedures, settlement agreement, mediation agreement, mandatory mediation

 

Popov A. A., Popov V. A.

The Preliminary Disclosure of Evidence as a Manifestation of the Adversarial Principle of Arbitration in National and International Court Proceedings

This article is dedicated to the issues of application of Article 65 of the Arbitration Procedure Code of the Russian Federation, which establishes the obligation of preliminary disclosure of evidence. The latter represents one of the institutions of legal arbitration proceedings and a manifestation of the adversarial principle. The arbitration courts have interpreted the above-mentioned provisions of law in a limited sense, which was reflected in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 13, 2004 № 82 «On various subjects related to the application of the Arbitration Procedure Code of the Russian Federation». Hereinafter, the article examines the legal norms of the foreign countries regulating preliminary disclosure of evidence, as well as practice of their application. The authors point out that the institution in question is regulated properly in the foreign countries and actively applied in civil cases of different types.

It is concluded that the current legislation of the Russian Federation fully provides for the use of the above-mentioned institution to prevent legal parties who participate in a case from misusing their procedural rights. In order to change the established case law related to the application of Article 65 of the Arbitration Procedure Code of the Russian Federation, the authors suggest publishing the relative explanations by the Plenum of the Supreme Court of the Russian Federation.

Keywords: disclosure of evidence, adversarial principle, arbitration procedure, abuse of procedural rights, foreign legislation

 

Sabitov T. R.

On the Use of the Terms «Mass Media» and «the Internet» in Corpus Delicti

The information and telecommunication technologies are developing rapidly, which, of course, is reflected in corpus delicti. The use of various information resources for criminal purposes is becoming an increasing problem for society. Therefore, it is no coincidence that the legislator’s reaction to this is to toughen the punishment provided for the illegal dissemination of information in sources to which an unlimited number of people have access. At the same time, there is often a haste to introduce such legislative novelties. Lawmaking issues are not always resolved systematically, which entails contradictions in the terminology used when constructing the corresponding corpus delicti.

Considering the terms «mass media» and «the Internet» used in the criminal law, the author tries to find out their relationship, as well as the logic of their use in the Criminal Code of the Russian Federation. Attention is focused on a large terminological spread, as well as difficult-to-explain combinations of these and related terms. The author proposes criteria for including them in one or another corpus delicti and insists on the unification of the terminology used in the Criminal Code of the Russian Federation.

Keywords: mass media, information and telecommunication networks, Internet, aggravated crime, illegal distribution of information

 

Shiryaev A. Yu.

The Problems of Assessment of Guilt in the Light of Error Juris Doctrine

The article discusses the problem of possible building an institute of error juris in national legislation and its perspectives in the national criminal law doctrine. The author analyses the ruling of the Constitutional Court of the Russian Federation under which part 4 of Article 222 of the Criminal Code of the Russian Federation is recognized inconsistent with the Constitution. A conclusion is drawn that this ruling is an example of the recognition at the level of constitutional proceedings of an excusable error juris (a legal error that eliminates guilt).

According to the author, despite the absence of excusable error juris institution in the current legislation in practice there are the same patterns in relation to special circumstances that eliminate guilt, which are the basis of the institution of error in law in Western European legal systems. The study leads the author to the idea that the problems in the development of the legal error doctrine are caused by the peculiarities of understanding the legislative and doctrinal construction of intentional guilt.

It is concluded that when assessing guilt, it is essential to determine the completeness of blamefulness and punishability of a person who has committed an act prohibited by the criminal law, or, conversely, to assess the behavior as excusable. The assessment of personal guilt is completely independent in terms of its criteria and subject matter in relation to the assessment of intent, which characterizes the very type of act provided for by the disposition of the norms of the Special Part of the Criminal Code.

Keywords: intention, intentional act, intentional guilt, construction of intentional guilt, excusable error juris

 

Ral’ko V. V., Ral’ko V. V.

Source Code Escrow and Notarial Deposit

The paper is devoted to the implementation of the task of a source code escrow as a special object of law through the use of notarial deposit. The authors demonstrate some approaches to legal regulation of a source code escrow, in particular, in the United States of America and the Republic of Kazakhstan. The legal status of a source code as an object of civil rights – the result of intellectual activity in domestic law – is revealed. The article also explains the difference between a notary’s acceptance of property in deposit as insurance against a creditor’s delay and for depositing, which is used to ensure the fulfillment of obligations of the parties to certain transactions.

Special attention is paid to the possibility of notarial deposit of movable things – material carriers of a source code. The notary acts as an escrow agent – a third party who accepts property for deposit in order to transfer it to one of the parties in case of occurrence of the circumstances or the fulfillment of the conditions provided by the parties in a joint statement. The authors cite as examples several situations in which the source code escrow can significantly reduce the risks of the parties to license agreements.

Keywords: notarial deposit, source code, escrow agreement

 

Zhilko I. A., Glushkova E. M., Kupirova Ch. Sh.

Abuse of Powers by a Private Notary: Corpus Delicti under Article 202 of the Criminal Code of the Russian Federation

The crime most often committed by private notaries is abuse of their powers (Article 202 of the Criminal Code of the Russian Federation). The paper examines this corpus delicti in detail in a theoretical aspect. The design features of Article 202, the object and subject of the crime are indicated, the signs of the objective side are considered (the use by a notary of his powers contrary to professional tasks and functions; consequences in the form of significant harm caused by the actions (inaction) of the notary; causal relationship between the act and the consequences).

The authors believe that the best option for establishing responsibility for this crime is a ba-lance between criminal punishment and the use of alternative measures. In addition, it is concluded,that further analysis of the problems of social conditionality, legal nature, classification and practice of applying the measures of a criminal law nature to a notary is necessary, as well as improving the law enforcement practice and criminal legislation.

Keywords: notary, corpus delicti, objective side, special subject, article 202 of the Criminal Сode of the Russian Federation

 

Berg L. N.

The Effectiveness of Procedural Activities as a Condition for Judicial Protection of Rights and Freedoms: a Review of the Monograph by S. A. Kurochkin «The Effectiveness of Civil Proceedings»

The reviewer notes the prospectivity of using the methods of economic analysis of law in the research conducted by S. A. Kurochkin. Attention is drawn to the fact that the methodological developments of outstanding Soviet scientists were used when writing the monograph. The reviewer comes to the conclusion that the monograph by S. A. Kurochkin is relevant and has scientific novelty.

Keywords: judicial protection, legal impact, effectiveness of norms, civil proceedings, rights and freedoms