Доктрина деловой цели в налоговом праве России: от средства доказывания в спорах о недобросовестности налогоплательщика до средства оценки обоснованности получения налоговой выгоды
A new work by Vladimir Volfson is entirely dedicated to bad faith in the exercise of subjective rights. While the civil law doctrine in this domain of legal knowledge is becoming increasingly sophisticated in line with a correspondent move of legal relations towards growing complexity, the subject retains much of its scholarly appeal largely due to an extreme diversity of academic approaches as well as to uncertainty in the current jurisprudence. The author of this monograph differentiates abuse of law from bad faith behaviour. The latter is, in his view, the conflict in the intentions about the claim ground. The lack of good faith, subsequently, is such a flaw in the claimant's interest that, if established, should launch a test whether the action in question constitutes an abuse of law. However, this indicator of the condition of the claimant's interest is not in per se equivalent to the condition itself; therefore, the court should not equate bad faith to abuse of law. The work goes on to unfold the above viewpoint, suggesting some arguments in its favour. Set against this notion of bad faith are the cases of what is described as legally neutral bad faith and even one that is legally allowed. The author also explores the standards of bona fide (as a prerequisite of the legal claim) applied by the lawmaker in special provisions of the civil legislation. Following his understanding of the good faith category, the author criticizes the current position of the principle of good faith in the Russian Civil Code as a legal obligation and a general prerequisite of a claim. In the framework of the view set forth in the work, this principle can be nothing but a legal presumption. Legislation and case law are given as of November 2018.
Abuse of rights is using of rights of a certain person in contravention of their intended purpose that leads to certain negative consequences for other people whereas the existing legislation is not openly breached. Thus there are no objective grounds on which the person who abuses his rights can be held accountable. The situations when one party in the corporate conflict abuses the rights are quite common in joint-stock companies. As a rule, the aim of abuse of rights is to change relations of forces in a joint-stock company and to obtain the right to dispose of its assets. The aim of our article is to develop the system of internal protection measures against abuse of rights in corporate relationships. The main focus of our article is on developing and implementing the preventive measures that aim at eliminating any possibility to abuse rights. Such measures are to be spelt out in local acts that regulates the company’s and its management’s activity. The conclusions and recommendations of this study are based on the analysis and synthesis of Russian law and corporate practice. However, the use of these findings and provisions will highlight key issues for improving corporate law and corporate practice in other countries.
The book of V. L. Volfson deals with the nature of the abuse of law, a doctrine which evolved into one of the most disputable subjects in the contemporary civll law, in academician circles and in the judiciary alike. The author investigates a sophisticated relationship between 'assumed' and 'real' interest. He proposes his own theory making it possible to conduct test as to the abuse of legal right.
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/