Several sessions at the St. Petersburg International Legal Forum — 2015 are devoted to the reform of the Russian Civil Code since it is exactly 2015 that may become a starting point for a new stage in development of the civil law in Russia. This year the majority of amendments, developed by leading Russian civil lawyers with the assistance of business community and supposed to suit the advanced civil turnover, are coming into effect. Still, the question whether they will be applicable in practical terms remains unanswered. Author shows concern for this and identifies prerequisites necessary for its resolution.
The present article is, according to the author’s intention, a continuation of the research in this direction and is presented as a regular publication from a series of works devoted to various areas of regulation of the status and activities of judges in the context of ensuring their independence.
The significance of the principle of independence of the judiciary while exercising its main function - justice - for a state that has declared itself legal and democratic, striving to truly respect the rights and freedoms of citizens, is difficult to overestimate. Its presence and reasonable implementation contributes to objective and impartial justice, which, generally, is proclaimed as the main goal of each new reform of the judicial system. However, the changes of the last years, introduced into the judicial system, were mostly aimed at strengthening institutional independence, leaving unattended the individual independence - the judicial one. Experience has shown, that they are closely interrelated with each other and are not separately achievable.
Therefore, there comes a special meaning of the other stage of formation of the judiciary, which is the main one, namely, the process of empowering as a judge those candidates who meet the established requirements. This procedure has a multi-level structure, consisting of both a number of formally fixed verification measures and filters, as well as restrictions that are not directly provided by law, but are actively applied in practice.
The investigation identifies problems of organizational character related to the order of formation of bodies of the judicial community and of functional character, revealing the ambiguous nature of the procedure for vesting judicial powers, and this research also formulates proposals for overcoming current problems in order to strengthen the guarantees of judicial independence.
 First work from a series if works: Mikhaylov V.K. Some requirements for candidates for the post of a judge as a threat to the independence of the judiciary // Court Administrator. 2019. № 1. P. 3 - 7.
This article is dedicated to analysis of preconditions for development and worldwide use of Creative Commons (CC) license system. CC licensing system is based on legal formula of author’s right protection called «some rights reserved», which is deferent to standard legal formula of copyright as known as «all rights reserved». We provide the description of CC licenses’ terms, their purposes and the legal classification of licenses. We describe the status of adaptation of CC licenses to the legislation of different countries. It is noted that among domestic lawyers is an ongoing debate on correlation of CC licenses rules to the Civil Code of Russian Federation. It is shown that recent supplementation of Russian Civil Code by the novel institute called «open license» in the Article 1286.1 is nothing other than an attempt to receipt all the CC license system in the form of one generalized rule of law. We have emphasized the positive impact of the novel rule on the character of Russian intellectual property rights legislation. We have fulfilled a detailed analysis of low efficiency of the open license instrument in its present form for practical use at present and underline the lack of the situation’s improvement prospects in future. The author proposes to implement the CC licensing system to the national legislation on intellectual property rights in full fledge form without exception by the direct reference to official text of CC licenses in Russian language.
The present paper tries to confirm or refute the hypothesis about Russian commercial procedure as a type of professional legal process. An interim conclusion is made that the position according to which a professional judicial process is a process oriented to professional participants is conservative. Instead of this position, the author puts forward and substantiates the thesis that the main feature of a professional judicial process is effective procedural cooperation between the court and the persons participating in the case. At the same time, the analysis of commercial courts practice conducted in the article leads to the conclusion that the court and the parties have a rather formal cooperation, which is extremely difficult to recognize as effective. This circumstance indicates that it is premature to consider the Russian arbitration process as a professional judicial process. According to the results of the study, it was concluded that in order to give the commercial procedure a professional character, it is necessary not only a fundamental change in the approaches of judicial practice, but also a fundamental change in the general psychology of the cooperation between the court and the parties.
Judicial expenses became subject to the Plenary Resolution of the Supreme Court for the first time. The author attempts to find in the explanations of the Supreme Court any leading idea or general principle which would allow to cover all proposed explanations. The interpretations put by the Supreme Court are analysed in the context of various theories defining the nature of court costs: the procedural theory, the theory of damages, and the theory of the actual procedural behavior.
In this article the directions of reforming of the market of legal services in questions of lawyer monopoly on representation of interests of the principal in courts, introduction of standardization and improvement of quality of the rendered services are considered. Having analyzed the volumes and other characteristics of the market of legal services of the Russian Federation, the author identified and argued the need for measures, the complex implementation of which will achieve the goals and significantly improve the quality of legal services. The author proposes the creation of a mechanism to guarantee the confidentiality of the client, increasing the availability of legal aid to citizens, improving the quality of legal aid by improving the professional level, the creation of normative and professional standards governing the activities of market participants.
The article presents the results of the assessment of domestic civil law and legal consciousness of Russian lawyers from the standpoint of a functional approach to law. This first theoretical part considers historical roots of dogmatism in Russian legal consciousness and shows that dogmatism, which is closely connected with the super positivist approach to law, is still imprinted in the minds of domestic civilists. The functional approach to law is described as a necessary addition to legal dogmatism and an opposition to positivism, as well as the essence of the social impact of law. These theses are empirically confirmed in the second part of the paper. The author considers the principle of good faith, standards of proof, protection of possession, recovery of damages, compensation for harm to life and health, etc., and proves that in these key areas of civil law the dogmatic approach still prevails or significantly hinders the effective operation of such civil law instruments.
The article provides continuation of a study on the assessment of Russian civil law and legal awareness of Russian jurists from the standpoint of a functional approach to law. In the first part of the study, the main theoretical implications of the functional approach to Russian civil law were examined. Here the theses expressed in the first part are confirmed empirically. The material constituting the empirical part of the study consists of several episodes from the life of modern Russian civil law. This article presents three of such episodes - the supremacy of the Civil Code, the principle of good faith and unfair contract terms.
This article continues the cycle, which presents the results of the research into the assessment of domestic civil law and legal consciousness of national lawyers from the perspective of the functional approach to law. The first paper of the cycle considered the main theoretical results, so now these results are empirically confirmed. The empirical part consists of several episodes illustrating the life of modern domestic civil law. Three of them (the supremacy of the Civil Code, the principle of good faith, and unfair conditions of contracts) were addressed in the second article. This third article adds three more episodes: protection of possession, principles of regulation of real estate transactions, and the problem of recovering damages for contractual breach.