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.
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.
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.
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.
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
The article provides a political and legal analysis of the provision establishing that treaty is a precondition for the recognition and enforcement of a foreign judgment. The author suggests that this statutory provision came into existence at the turn of the nineteenth century and its primary purpose was to ensure the equality of concessions between states in the field of justice. It is further noted that the reciprocity provision served the same purpose as the international treaty and that was the reason why it spread to legislations of several European countries (Germany, Romania etc.). As regards the Russian legal framework, the author discusses the correlation between existing national legislation and the right to fair trial under Art. 6 of the European Convention on Human Rights.
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.
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.
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.
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
This article deals with the issues of quality assurance in forensic examination and pre-requisites for confidence in expert findings. It describes the models of forensic examination in a number of developed common law (England) and civil law (Germany, France), jurisdictions, presents institutional and procedural specifics of the use of expert evidence in courts. The best foreign practices show that effective interaction between an expert and the court is based on a set of organisational and procedural measures, which, on the one hand, allow trusting the expert opinion and guaranteeing its quality, and, on the other hand, providing the court with discretion and making it less dependent on such opinion. One of the possible trajectories is to form a genuine corporation of forensic experts, get them nearer to the court, and develop internal and external control tools - both at the entrance to profession and when undertaking an unconditional responsibility with disbarment of those departing from the requirements of scientific truth, objectivity and impartiality, in addition to property liability for the harm caused to the interests of justice and individuals. Enhancing the quality of expert examination will also be facilitated by strengthening the adversarial elements in appointing and conducting an examination, as well as during the evaluation of this evidence in court: this constitutes free and equitable use of alternative opinions, including those obtained by the parties themselves, optional participation by the parties and their representatives in the process of examination with the possibility of submitting additional materials, explanations, etc., mandatory cross-examination of expert witnesses and other specialists involved in proceedings.
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.
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.
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.
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