The present research is devoted to the analysis of general trends in the Russian commercial procedural legislation The author proceeds from the fact that the nature of the latest amendments to the Commercial Procedural Code of the Russian Federation indicates that Russian justice in the field of economic disputes is currently in a transition, and Aspires to formulate fundamentally new tools and norms. In order to determine possible directions of commercial procedural law development, two European concepts have been chosen: the concept of access to justice and concept of quality of law, which are regularly used in the case-law of the European Court of Human Rights. Comparison of changes in the procedural legislation with these concepts and the practice of the international court led to the conclusion that certain legislative novels cause an excessive number of questions. Thus, the writ proceedings introduced into the commercial process does not fully correspond to the ideas of access to justice. Particularly criticized is the idea of refusing to compose the reasoning part of the judgment in view of the discrepancy of this innovation with the case-law of the ECHR and doctrinal views on the access to justice. To determine the admissibility of any legislative changes, the ECHR's method of comparing objectives is proposed, which is to determine the balance of the objectives of the state (legislator, court) and persons seeking judicial protection. Also the article gives the estimation of tendencies of development of commercial procedural legislation from the point of view of concept of quality of the law. It was concluded that in procedural legislation (and as a consequence in judicial practice) provisions that do not meet the requirements of legal certainty. The conclusions of the article systematize the formulated conclusions and proposals.
The subject of this article is the procedural issues that arose in the case of the Moscow Commercial Court No. A40-235720/2018. This dispute actualized several discussions of legal science, which were previously considered as having no intersection points: individualization of the claim, authority of the appellate court and cooperation between the court and the parties. The doctrine and practice have not yet developed a consensus on one of the most long-running issues of procedural law: what if the plaintiff proved a violation of his right, but was mistaken in choosing a method of defense? In the commented case this problem arose in a new form. So, the key question was the actions of the appellate court, if during the verification of the judicial act the erroneousness of the method chosen by the plaintiff to protect the violated right (and, accordingly, the satisfaction of the claim with this method of protection) was established. The Supreme Court of the Russian Federation took a rather radical position regarding the absolute impossibility of canceling a judicial act on the grounds of the erroneous choice of a method of protecting a violated right. But this position, in turn, entailed new problems associated with the general ambiguity of the algorithm of practical actions of appeal in the situation under consideration. This article is an attempt to evaluate the approach of the Supreme Court of the Russian Federation both from the point of view of the theory of procedural law, and from the point of view of already existing approaches of judicial practice.
The article considers different approaches to the issue of genesis of law. Examines the social nature and form of rules in (of) common law. The author comes to the conclusion that existed in the primitive society-of prohibitions is taboo, in fact, were of a criminal-law nature, and taboo of, in spite of individual dif-ferences mechanism of action, is the su-community primary form of criminal-legal influence.
In the article the information on the popularity and causes of collective labor disputes, strikes, labor protests and conflicts in Russia is analyzed. The data of state bodies, according to which the number of collective labor protests taking place in the framework prescribed for them by law (collective labor disputes, strikes) is low and does not grow in difficult and crisis periods, is demonstrated. At the same time number of workers’ protests in various forms without use of procedures designed by law for the resolution of labour conflicts, is growing. We investigate the role played of the current legislation and its’ enforcement, including the judiciary practice, and what are the consequences of such practices.
The 25th anniversary of the Constitution of the Russian Federation has led to the formulation of questions about the results of the development of Russian society, about a possible constitutional reform. A certain deviation of the 1993 constitutional model from the realities of today is recognized. The purpose of this work is to assess a number of aspects of the creation of the draft Constitution of Russia, the relationship with the current constitutional model, identify its positive results and implementation problems.
Analysis of the Constitution of the Russian Federation in 1993 is carried out using the methods of dialectics, historical analysis and comparative jurisprudence. For a more substantive analysis of the 1993 Constitution of the Russian Federation, a comparison with the Constitution of the RSFSR of 1918 is used; As objects of analysis of the constitutional model of 1993, separate constitutional principles of the economic system are used (first of all, the principle of supporting competition).
The peculiarity of the 1993 Constitution of the Russian Federation was that it consolidated the draft of the concept model of liberal-democratic civilizational development that was fundamentally new for Russia. This constitutional project is distinguished by its programmatic nature and elements of myth-making. Elements of the transition period in the formation of a modern legal market economy predetermine our development. The constitutional model of a market economy is carried out with deviations from the principles of a market economy (primarily supporting competition). In turn, this situation affects democratic institutions of political competition.
The revision of the Constitution of the Russian Federation does not make sense, since no request has been formulated for changing the paradigm of democratic market development. Separate, “pointed” changes to the Constitution of the Russian Federation are possible, but a number of problems, for example, the imbalance of state authority over the executive branch, can be solved within the constitutional powers of the Russian parliament and the Constitutional Court of the Russian Federation. The paper proposes a number of constitutional legal measures to ensure the constitutional content of the principle of competition support.