Косвенные доказательства в практике арбитражных судов: опыт критического осмысления
This article contains analysis of practice of applying indirect evidences by arbitration courts. Notwithstanding that in the practice there are categories of cases, proof in which is exclusively or mainly possible on a basis of indirect evidences, the proof with help of indirect evidences encounters problems of persuasiveness and sufficiency of such evidences. The author comes to a conclusion, that in the situation when only indirect evidences are presented in cases usually proved on a basis of direct evidences, lower courts would, most likely, refuse to consider any facts proved.
The article focuses on the problem of the use of circumstantial evidence by courts of general jurisdiction. The author concludes that such evidence has one distinctive feature: despite the absence of legal prohibitions or restrictions on the use of circumstantial evidence, decision makers often consider that circumstantial evidence are not convincing evidence. The problem arises if proof is solely by means of circumstantial evidence, and if the claim of plaintiff is serious.
The article concerned the history of circumstantial evidence in Russia and in foreign countries (until the XIX century).
If considering traditions in law and in jurisprudence, one may assert that the most actual question in the contemporary Russia is the problem of precedent law. This problem is arisen in connection with some statements of the leading representatives of the judicial system about necessity to transform the Russian court process according to the model of the common law. One can investigate this problem through consideration of the new procedural institutes and their comparaive analysis.
The actual value of shares in the company in most is determined on the basis of the examination. The author casts doubt on the legality of such practices. Based on the result of the analysis of the legislation and judicial acts, the author proposes to use another mechanism in determining the need for the examination. The examination for this category of disputes as to the position of de lege lata, and from a position of de lege ferenda possible only if the claimant have denied the presumption of validity of the balance sheet data.
This article presents a historical and comparative legal analysis of circumstantial (indirect) evidence. The author investigated causes for the appearance of circumstantial evidence and explored scientists’ points of view on circumstantial evidence. The author believes that there is no only single criterion for dividing the evidence on the direct and circumstantial. However, the most useful for practice is the division depending on which type of fact (ultimate fact or evidentiary fact) is established by evidence: an evidentiary fact is proved by circumstantial evidence, an ultimate fact – by direct evidence.
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/