Аннотация. The author reviews current status of criminal liability for competition-restricting agreements under Russian criminal legislation. The review begins with discussion of elements of this corpus delicti under Russian criminal law. The author explains that even though there are many cases of competition-restricting agreements tried by antimonopoly state body each year, there are no criminal convictions because of strict substantive provisions of the criminal legislation. The prosecution should prove much more elements of corpus delicti related to consequences of competition-restricting agreements, the dolus, and the person who shall bear the responsibility. The most problematic points here are requirement of real consequences of competition-restricting agreements (although in the antimonopoly law the prohibition is so called prohibition per se) and transfer from level of a corporation (who shall bear the liability under the antimonopoly law) to criminal liability of natural person inside this corporation. The last part of article is concerned with draft law proposed by the Russian Federal Antimonopoly Service regarding amendments the criminal legislation here. The author criticizes the approaches to formulating corpus delicti in this draft law for several reasons. The main reason is unacceptable simplification of corpus delicti elements to a blanket violation of antimonopoly legislation. In this case, there will be serious procedural and substantive problems and collisions in law enforcement. Finally, the topic of proposed punishment is analyzed with conclusion that proposed harsh punishments will not be enforceable in practice.
The article analyzes interaction between corporate and criminal legislation as to defining persons who are able to commit crimes in corporate sphere. There are several actual and difficult points here in current Russian case law. They include differentiation between public and private officials especially in light of current trend to enlarge a definition of public official; criminal liability of corporate top managers; and rules on criminal liability of persons who exercise a factual control over corporation. The author proposes some guidance on these matters based on case law, corporate and criminal law doctrine.
The possibility and conditions of legal protection of private life depend on the content of this notion, which has not been well elaborated in Russia and abroad. Private, personal life includes personal freedom, freedom of choice of human behaviour (restricted by law), abiding place, places of work and leisure, etc. The way of spending time is also personal choice. Invasion of privacy such as gathering information, stalking and cyberstalking, mental pressure on the victim, infliction of emotional suffering, psychological “terror”, harassment or other actions (controlling or coercive behaviour) are socially dangerous and require regulation under criminal law. The paper analyses foreign laws (UK, Germany, Poland) stipulating criminal liability for stalking, controlling or coercive behaviour in an intimate or family relationship, and determines the corpus delicti of these crimes. The author examines the definition of private life in legal science, jurisprudence and legislation, and concludes that the reviewed concept needs a broader interpretation in law. Specific features are identified in foreign laws that criminalise emotional distress.
Understanding what is a commonly known fact can not be achieved without developing the ability to verify the findings of the court as to whether a particular circumstance is generally known or not, on appeal. It attracts need to refuse unconditional recognition of such circumstance to all members of structure of court that demands introduction of the procedure of check of a circumstance on common knowledge. It is incorrect to separate proof of common knowledge of the fact from the proof of its existence as the proof of common knowledge of a circumstance for its use as the bases for release from proof in all cases is identical to the proof of existence of this circumstance. The court of first instance and the appellate instance must carry out such verification ex officio in the same way - through a critical appeal to several publicly available sources of information.
The article describes problems of contemporary legal education and their solutions with the participation of employers, by which are meant the public authorities, commercial and non-profit organizations of different ownership forms, interested in cooperation with leading law universities and faculties of the Russian Federation with the aim of joint work to improve the quality of modern legal education. It identifies a number of methods of interaction between employers and law universities and faculties, contributing to the development of competence approach in legal education. An example of successful cooperation between the Faculty of Law and employers in the framework of the Department of practical jurisprudence is given.
The article considers the fundamentals of a newly established office of the Financial Attorney for the Rights of the Consumers of Financial Services (Federal Law of June 4, 2018 No. 233-FZ). The analysis is conducted in the light of comparison of the Financial Attorney with the fundamentals of the offices of financial ombudsmen widely used for consumer protection in the financial markets in many countries. Considering from comparative legal perspectives the basic features of these two offices, the author comes to a conclusion that the Financial Attorney in the Russian Federation — in the way established by the Federal Law — will not be able to perform the role comparable to the role of the financial ombudsmen in European jurisdictions. Therefore, the legal regulation of the bank-customer relations in Russia is still having the substantial gap which theoretically might be filled in if the financial ombudsmen get legal recognition from Russian banking associations.
The paper shows that the Russian legislation on state control and supervision over business activities does not meet such basic requirements as stability and certainty set for any law. For example, legal procedure for the conduction of prosecutorial inspection stays particularly uncertain and was not changed even after the Russian Constitutional Court had offered its recommendations. Therefore, aims of prosecutorial inspection mostly duplicate those of inspections carried out by other state bodies. The author cites a number of judicial cases and explains why prosecutorial inspections should be eventual.
Article is devoted to destiny of the economic analysis of the right in system of the Russian jurisprudence. In it the positive and negative positions of the Russian scientists created concerning the economic analysis of the right are noted. In article it is shown that the economic analysis of the right gives the methodological tools allowing:
— to rationalize the existing legal constructions, i.e. to decide on the values which are their cornerstone (protected by the right interests), and also to understand the reasons of emergence and mission of concrete norms;
— to modify legal regulation when it doesn't achieve the objectives facing it;
— to predict impact of potential norm on behavior of subjects to which it will be addressed;
— to coordinate interpretation of the existing norms with the real public relations which are their cornerstone.
The article analyses current version of the Russian Criminal Code with regard to its provisions on criminal legislation in light of foreign approaches in this field. The author comes to the main conclusion about non-active, prudent approach of Russian legislation to criminal jurisdiction confining it to historically elaborated schemes. The comparison with the current continental law and common law approaches reveals that legislative schemes of the leading foreign states are of more ‘aggressive’ nature. The passive nationality principles as well as universal and protective principles are widely used for asserting criminal jurisdiction extraterritorially. The author concludes that some steps in the same manner might be perceived by Russian legislator.
On December 8, 2017 the Constitutional Court of the Russian Federation adopted Resolution No. 39-P. It states that individuals can be held liable for damage to the budget arising from corporate tax offenses. In the authors’ opinion, the explanations by the Constitutional Court of the Russian Federation have accentuated the problem of independent legal entity’s existence. So, the paper examines theoretical and practical issues of the essence and responsibility of a legal entity. The authors made an analysis of doctrinal researches, regulations and judicial decisions concerning the problem. As a result, the approach to the legal entity’s evolution from fictitious to real personality is substantiated. There is a brief historical digression that reveals the process of company formation. The authors came to the conclusion that the fiction theory proves unjustified at the present stage of the development of economic relations. The article provides evidence of the concept of reality and independence of legal entity in Russian civil law. Due to the departure from this theory in the sphere of tax legislation, it is suggested to change the way of determining legal entity’s fault in tax relations.