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Regular version of the site
Of all publications in the section: 327
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Article
Цепов Г. В. Закон. 2017. № 8. С. 34-42.

The article deals with the problem of tax debt enforcement while “transferring financial and economic activities” from one legal entity to the other. The issue under consideration is beyond tax legislation which is derived from civil legislation and is obliged to operate its concepts and institutions. Ignoring them, wrong borrowing or creating an alternative conceptual framework may cause controversy. For example, the concept of “alternative dependence” leads to legal uncertainty. The concept mistakenly identifies enterprise – the object of the right with the concept organization – legal entity. Dependence it is a category of will. To recognize a person dependent it is not necessary to establish community property or property, before belonged to the debtor, but it is necessary to establish that the will of a dependent subject is substantially controlled by another person. It is also unacceptable that in peacetime interests of budget should be placed above the interests of all the other groups of creditors. Assuming that tax authorities have the right to recover the receivables from the deputy organization outside bankruptcy proceedings, and the recovered funds are not included in the insolvency estate, then the budget will get illegitimate profit at the expense of the rest of the creditors. A solution of the problem must be sought not by introducing new kinds of dependency, unknown for civil law, but by accurately qualifying property relations between a debtor and a deputy. In the present case, in fact, they conclude a contract for the transfer of an organization.

Added: Nov 2, 2018
Article
Молодыко К. Ю. Закон. 2017. № 4. С. 43-58.

The author researches the European legal concept of linked credit agreements, which provides an imperative civil liability of the banks and other financial institutions for the delivery and quality of goods and services supplied by their clients. The concept is aimed at reducing such asymmetries as a lack of knowledge of the consumer about the reliability of suppliers of goods, services that are purchased on credit, the quality of goods and services, as well as the inability of the consumer to influence the terms of the loan agreement and the contract of supply of goods or services purchased on credit. This concept has been developed in recent years at the level of the EU law, although it existed in some EU countries earlier. Russian consumer credit law sometimes unnecessarily uses truncated European approach to civil liability, which reduces the level of consumer protection on the market. The author believes it is advisable to implement the concept of linked credit agreements to the Russian legislation on the protection of consumers of financial services. The move away from the concept adopted in Russia, that the bank is only an abstract settlement center, can also have a positive influence on the development of the mortgage as a way to provide better housing for citizens. 

Added: May 3, 2017
Article
Савельев А. И. Закон. 2015. № 11.

The article is focused on the analysis of the existing knowledge standards for online intermediaries, as provided in the Article 1253.1 of the Civil Code of Russian Federation. Based on the comparison of foreign and Russian case law, various criteria are being considered, the presence of which may lead to a conclusion that online intermediary actually “knows” (actual knowledge) or “should have known” (constructive knowledge) about the infringement. The article also provides critical assessment of some cases, where the presence of constructive knowledge was found due to the discussions about the infringement occurred in public. From the author’s perspective such an approach imposes on the online intermediary an atypical obligation to monitor the Internet information space, resulting in censorship. 

Added: Dec 2, 2015
Article
Гальперин М. Л., Павлова Н. В. Закон. 2019. № 8. С. 125-139.

This article illustrates the key results of the recent arbitration reform in Russia with regard to both legislative changes and jurisdictional trends. The main trajectories in the development of arbitration in Russia are identified based on international practices and global challenges.

Added: Sep 3, 2019
Article
Ильин А. В. Закон. 2015. № 11. С. 142-147.
The article proposes a new approach to the determination of the content of the constitutional rights to public services. The author examines this question in the context of the relationship of legal forms of financial activities of the state and the need to ensure the constitutional rights.
Added: Jul 14, 2017
Article
Гальперин М. Л., Борисова Я. Ю. Закон. 2019. № 5. С. 128-134.

The article analyzes the contemporary approaches in the European Court of Human Rights practice to the collection and considering of evidences in international litigation. The conclusion is made that the existing “flexible” evidential practice, using of the different presumptions and of the “beyond reasonable doubt” concept could cause serious risks for the whole international dispute resolution system. It is specifically important statement with regard to the cases on massive human rights abuses, including interstate disputes. The mentioned problems could be solved only through the dialogue between the national and supranational jurisdictions, acceptance by the international tribunals of the instruments, developed by national courts

Added: May 21, 2019
Article
Антипкина О. В. Закон. 2018. № 3. С. 163-175.

After the crisis 2008 started as a global financial crisis of the banking sector and turned into a budget crisis in the EU Member States, the strategy of saving banks through state financing was criticized.  A negative assessment of the actions of supranational and national authorities is related to the lack of coordination of actions to prevent the consequences of bankruptcy of the banks and their subdivisions in various countries and the waste of budget funds for compensation of losses incurred by financial organizations management acting in bad faith. To stabilize the banking sector of the EU Member States the decision to establish the Banking Union was made. One of the pillars of the union is recovery and resolution of financial organizations with a new strategy “bail-in”, according to which the losses of a bank likely to fail shall be compensated at the expense of the bank itself and its creditors. In a framework of the present article the pros and cons of “bail-in” strategy are considered as well as advantages and disadvantages of its predecessor. Urgency of the raised problem is conditioned upon the analysis of grounds of financial crisis 2008 in order to prevent its negative influence on banking sector of the EU in future. Besides, comparison of pros and cons of bank recovery and resolution strategies applied in the European Union may be useful for the purposes of their implementation in the Russian banking regulation.

The article contains analysis of different opinions presented in foreign doctrine in relation to the bank resolution strategies. It examines problems of legal and economic character connected to bank recovery and resolution in one country as well as in different countries. The article is divided into two parts, the first of which is devoted to the analysis of pros and cons of “bail-out” strategy and to the detailed investigation of Fortis group resolution in a framework of the strategy. The second part presents advantages and disadvantages of “bail-in” strategy, including those reflected in course of its implementation in the national systems of the EU Member States. To sum up, conclusions are drawn regarding the effectiveness of the bank recovery and resolution strategies in the EU.

Added: May 14, 2018
Article
Иванов А. Ю. Закон. 2020. № 2. С. 86-102.

The author explores the three myths on which, much like the myth of three whales, the current regime of intellectual property protection in post-Soviet Russia is based, which primarily serves the interests of transnational monopolies to the detriment of Russian economic and human development, especially in the sphere of startup entrepreneurship and innovation. These are the myths of legal monopoly, of great stimulus and of the benevolent foreign investor. The author shows on the basis of numerous economic research and empirical data that the widely accepted in Russian jurisprudence concept of legal monopoly is just a rhetorical method used to deviate from a meaningful discussion about the detriments brought to the Russian economy by the abnormally hefty exemptions for IP rights in Russian competition law; intellectual property protection is not a panacea for incentivising innovation and creativity, and being fully exempted from the competition law it stifles rather than stimulates innovation; and a overly strict regime for intellectual property protection doesn’t make Russia or any other developing country more attractive for direct foreign investors but on the contrary allows global corporations to extract more resources from the Russian consumers without any efforts to bring more production or R&D to the country.

Added: Mar 12, 2020
Article
Смольников Д. И. Закон. 2015. № 12. С. 199-205.

The author addresses himself to standards of proof, exploring three myths that are commonly associated with them. He concludes that standards of proof are no closer to the truth than the inner conviction and that they are not as objective as they may seem to be.

Added: Mar 2, 2016
Article
Иванов А. А. Закон. 2019. № 5. С. 103-109.

 

In the era of the digital revolution, the legal nature of rights to digital content is becoming more and more acute, and a new category of civil rights is increasingly being talked about.The author, however, believes it would be useful for practice to analyse digital rights in light of the classical dichotomy of absolute and relative rights, so he performs this analysis using the example of products of a well-known manufacturer of mobile devices and applications. As a result, the author concludes that despite all the apparent complexity, it is still possible to determine the point (criterion) of differentiation between absolute and relative rights to digital content, which is the ability to dispose of such content without the help of a counter party under the contract stipulating this right.

Keywords: dichotomy of absolute and relative rights, digital rights, exclusive rights, digital content

Added: Nov 27, 2019
Article
Гальперин М. Л. Закон. 2015. № 2. С. 123-136.

In article author analyses the proposed amendments to the Federal Law «On Enforcement Proceeding», which have introduced the new restrictions of debtor’s driving license. Proposed initiatives are used as example of general problems of lawmaking process as well as of general trends of enforcement proceeding regulation in Russia.

Added: Mar 10, 2015
Article
Цепов Г. В. Закон. 2016. № 8. С. 98-120.

The article deals with the problem of a controlling person’s liability for taking an excessive business risk in the vicinity of insolvency. Applying methods of economic analysis of law the author concludes that, in general case, a controlling person of a commercial corporation is liable towards creditors of a debtor only for those actions that are committed by him with an intention to harm creditors.

Added: Nov 2, 2018
Article
Цепов Г. В. Закон. 2015. № 12. С. 164-183.

The article is devoted to an objective assessment of business judgment. The author analyses the concepts of reasonableness and good faith of director’s activities in the interests of the organisation. The author concludes that the greater degree of uncertainty, the more relationship between the organisation and the director take a game character. Due to the increasing complexity of the economic system, including a sharp increase in the scale and speed of information exchange, the use of traditional legal tools is extremely limited.

Added: Nov 2, 2018
Article
Мохова Е. В. Закон. 2014. № 6. С. 62-73.

The article covers problems of cross-border insolvency and insolvency of cross-border

groups which are to be discussed at the St. Petersburg International Legal Forum.

Problems and issues of legislators and legal professionals arising from insolvency

complicated by foreign element are considered in the context of the world’s largest

insolvencies. Author lays special emphasis upon the fact that the lack of legal base

does not exclude Russia of such world tendencies as unification and competition of

insolvency regulation. Our national legal community faces challenges of exploration of

cross-border insolvency, and particularly of international practice in this sphere, with

the aim to propose possible solutions to the legislator. Legislator is after all at the point

where the need for imposing special rules for addressed legal matters becomes urgent

Added: Jun 27, 2018