Перспективы применения доктрины "снятия корпоративной вуали" в российском правопорядке
This paper examines the doctrine of “lifting the corporate veil” and considers perspectives of its development in the light of the last legislative amendments and changes in the Russian judicial system. In the author’s opinion, after the Higher Arbitration Court has been liquidated and, consequently, rulings of its Presidium lost their binding effect, there are no normative grounds in the actual Russian legal order to justify application of this doctrine. This thesis is also confirmed by the fact that the legislative branch abandoned the idea to implement this doctrine in the civil legislation. The author asserts that attempts to justify applicability of the doctrine of “lifting the corporate veil” in Russian legal order are groundless both in practical and theoretical sense. The analysis of case law shows that this doctrine is usually mentioned in court decisions outside of the authentic context in which it works in Western legal orders. Study of this doctrine is relevant only within the framework of comparative legal studies.
The author states that when the court considers the question on the introduction of the observation procedure (bankruptcy) it pursues the goal to exclude insolvent trading on behalf of the debtor rather than satisfies the interest of a separate creditor. It is emphasized that the court shall apoint as an arbitration administrator the candidate proposed by an indepedent creditor.
The problem of relations between a legal entity and its founders (participants) is relevant for various branches of law, since the principles underlying the concept of a legal entity (autonomy and limitation of liability) can be a means for various abuses. Modern legal doctrine continues to develop the concept of removing the corporate veil, which was accepted in Russia. There are also several rules in the tax law which allow to impose legal consequences of actions of an interdependent (affiliated) legal entity on the relevant person. The purpose of the study is to analyze these relations in the view of tax issues, including the consequences of tax and legal retraining of the transactions' results, bringing the controlling individual to responsibility for causing damage to the budget in cases where the legal entity served only as a "cover" for its actions, de facto not being an independent participant in economic activity. Objectives of the study is to explore the meaning of the principles of autonomy and the limitation of the legal entity's liability for tax law, to identify and systematize the legal model of counteraction to the abuses in the tax sphere, to consider the basic model of their construction. The author uses the methods of analysis and synthesis, deduction and induction, which contributed to the disclosure of the essence of legal phenomena in their integrity and relationship, ordering and systematization of research issues and conclusions drawn from it. The article reveals the constructions of counteraction to tax abuses in the national legislation on taxes and fees, in the international treaties of the Russian Federation on avoidance of double taxation of income and counteraction to tax evasion, in judicial doctrines. It is noted that legal, economic and actual types of control are used to identify taxed persons. The conclusion is made that the principle of substance over form prevails in the tax sphere is the basis of models of combating abuses in the tax sphere. Since the structural elements of transnational corporations implement the group's fiscal interests in General, legal decisions aimed at independent, independent taxpayers are ineffective in relation to them. The article assesses the following structures: the concept of unjustified tax benefit, the Institute of tax control of prices in transactions between related parties (transfer pricing rules), the concept of a person having the actual right to income (beneficial owner), the rules of insufficient (thin) capitalization, the Institute of controlled foreign companies.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/