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Russian law: theory and practice №2 – 2018
CONSTITUTIONAL LAW
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The article focuses on constitutional interpretation of protection of rights and legitimate interests of citizens as an economically weaker party to a bank deposit agreement and a credit/loan agreement. The author substantiates the necessity to identify the protection of rights and legitimate interests of an economically weaker party as a guarantee; in his view, the decisions of the RF Constitutional Court entail such protection not as a principle but as a guarantee. The author offers constitutional interpretation of rights and legitimate interests of an economically weaker party to a credit/loan agreement.
Key words: constitutional interpretation; protection of rights and legitimate interests of citizens; an economically weaker party; the legal position of the RF Constitutional Court; a contract of adhesion; a bank deposit agreement; a credit/ loan agreement.
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Abolition of a Constitutional Statute by the Constitutional Court of the Czech Republic С. 15-42
The article focuses on the judgment of the Constitutional Court in Brno which adopted the competence to abolish constitutional acts. The Constitutional Court abolished the constitutional act on shortening the electoral term of the Chamber of Deputies due to the alleged conflict to Constitutional Statute No.1/1993 Coll., Constitution of the Czech Republic. The Constitutional Court did so without being expressly entitled to it by the Constitution. Extraordinary elections took place on the basis of a special constitutional act; this practice was applied repeatedly within the effective legal order in the Czech Republic and it became a constitutional convention. Abolition of a constitutional act which was enacted by the qualified maj ority within the right procedure is in conflict to the constitutional command which states that the Constitutional Court is bound by the constitutional acts. If the Constitutional Court designates the constitutional act as something that is not a constitutional act, then the others can designate the judgment of the Constitutional Court as something that is not a judgment and can refuse to respect it. Such a consequence of the conduct of the Constitutional Court is a serious violation of the principle of legal certainty.
Key words: a constitutional statute, the Constitutional Court of the Czech Republic, abolition of a constitutional act, violation of the principle of legal certainty, suspension of enforcement, premature elections, retroactivity.
TAX LAW
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The subject of the selected topic is the problems arising at the junction of the legislation on taxes and fees and bankruptcy legislation. The analysis of various problems in the regulation of legal relations arising in bankruptcy cases treats separate issues sporadically, but it should be recognized that there are almost no comprehensive works devoted to the specifics of the fulfillment of the tax obligation to pay VAT in bankruptcy cases. The object of the study is public relations that arise when the organization is in bankrupt duties to pay VAT from operations related to the sale of goods, works and services. The author considers in detail such aspects of the topic as the development of a legal thought on the recognition of transactions for the sale of property and property rights of a taxpayer for the object of VAT taxation. An attempt has been made to systematize the disparate interpretations of the norms and fill the gaps in the legal regulation with regard to the recognition by the object of VAT taxation of transactions on the sale of assets of the insolvent tax payer, both in the normal course of business of the debtor and in competitive forms, for example, tenders for the sale of the bankrupt estate. The relevance of the study is the need to improve the provisions of the legislation on taxes and fees that do not meet the requirements of modern law enforcement practice. The research is based on the methods ofhistorical and comparative jurisprudence. The research has revealed contradictions in legislation and jurisprudence on the implementation of tax obligations for the payment of VAT by a taxpayer in bankruptcy procedures. The author uses the methods of legal modeling when considering tax liabilities for the payment of VAT in cases of bankruptcy in the distribution of money received from the lease of the debtor’s property to pay claims of creditors whose rights are secured by the pledge of such property. The author formulates recommendations for improving the provisions of tax legislation by expanding the positive content of transactions that are not recognized as an object of VAT taxation. Separate conclusions are made with regard to the qualification of tax liabilities from the current activity of the debtor as an object for value-added tax in situations of unreasonably prolonged economic activity in the framework of procedures applied in accordance with bankruptcy law.
Key words: tax object, goods, works, services, tax issues, value added tax (VAT), insolvency, bankruptcy, obligatory payment, tax agent, priority of claims.
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The paper reviews pressing issues related to the corporate taxation in the oil industry amid the financial crisis, sanctions imposed against Russia, and low oil prices. Special emphasis is given to the analysis of the first results of the tax reform being implemented with regard to the introduction of a tax maneuver as one of the main mechanisms of state financial security. The subject of the study is challenging issues of the oil industry taxation, in particular, the application of the added income taxation mechanism for oil companies. The main conclusion of the research is the fact that in order to obtain beneficial results, systemic work on the oil industry tax reform is required, alongside a phased switch to the added income taxation on oil companies.
Key words: state tax policy in oil industry, sanctions against Russia, a tax maneuver, state financial security, added income taxation.
ECONOMY AND LAW
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The Principle of Limited Liability of Legal Entities and its Overruling in Russian Law С. 59-71
The present article focuses on the fundamental principle of Russian law -limitation of liability of the legal entity by its property and grounds for overruling this principle which has been called “lifting the corporate veil" The author pays attention to the solidary and subsidiary liability of the parent company for the obligations of the subsidiary, the liability of controlling persons in bankruptcy and in the day-to-day activities of the entities under control. The author pays particular attention to the de facto control in Russian law.
Key words: a business entity, limited liability, “lifting the corporate veil’, a person with control, a person under control, solidary liability of the parent company for the obligations of the subsidiary, subsidiary liability of the parent company for the subsidiary bankruptcy, de facto control.
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Legal Regulation of Outward Investments: Chinese Experience С. 72-77
In 2014-2018, China has adopted a number of legal acts to withstand the outflow of capital in the guise of outward investments and to harmonize private interests and interests of the state in the sphere of foreign economic activity. The authors believe that Chinese experience can be useful for Russia and propose some directions for developing legislation on investments.
Key words: modernization, China, investments, foreign economic activities, state-owned enterprises.
COMPARATIVE LAW
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Concept of Avoidance of the Law (Fraus Legis) through Roman and German Law History С. 78-88
Fraus legis is a Roman legal concept that was shaped through centuries. At the beginning, the Roman laws were exclusively interpreted literally (i.e. by the letter of the law), so that avoidance transactions achieved their peak. Only later Roman legal science changed from purely literal interpretation to the interpretation of the meaning of legal norms. Development of the concept offraus legis in Central Europe actually slowed down in the Middle Ages, until its turnaround in the mid-19th century. This development was most pronounced in Germany. The concept of Gesetzesumgehung plays an important role in the modern German law system in combating against deliberate circumvention (avoidance) of (basically all fields of) the law.
Key words: fraus legis; avoidance of the law; avoidance of the law in the Roman law; avoidance of the law of the Middle Ages; modern concept of fraus legis in Central Europe.
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The Legislative Powers of the Head of State in New EU Democracies С. 89-99
This paper deals with the legislative powers of the head of state in the countries that emerged from socialist regimes, where the parliamentary system and the function of the President of the Republic as the individual head of state were introduced in the 1990s, namely in 10 (new) Member States of the European Union.
Key words: legislative powers, head of state, EU democracies, president of the republic.
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This article provides a summary of current law governing the legal status of outer space and the law governing outer space activities.
Key words: outer space law, UN Treaties, legal status of outer space.
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Energy Consumption as the Object of Energy Relations С. 116-126
If the subject of economic relations of energy supply is not the resource itself as a material form, but the energy it contains, measured, as a rule, in special units of reference fuel, then any relations of energy supply, whether they are the relations built on the model of supply or the relations built on the model of delivery, extend to the sphere of consumption in one form or another. Energy supply is defined not only by extension of relations in the sphere of production (supply) to the sphere of energy consumption, but also by the reverse process - participation of energy consuming entities in the production of energy and, hence, extension of competence of consuming entities to the sphere of production (supply). The economic and legal process of energy supply is, in fact, cooperation, joint activity of energy producing and energy consuming entities.
Key words: energy; energy resources; the subject of economic relations of energy supply; energy consumption; cooperation of the producer and consumer of energy resources.
HISTORY
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Soviet Medieval Justice С. 127-136
The coming to power of the Bolsheviks was defined by many intellectuals as the triumph of the new Middle Ages. However, previous studies considered only the degradation of the state. Nevertheless, simultaneously with the degradation of the state, the degradation of law also took place. The authors of the article use this paradigm and the comparative-historical method of investigation. The aim of the work is to distinguish elements of medieval law in Soviet law. The article examines the development of Soviet law, and reveals the essence of Stalin’s medieval justice. The authors come to the following conclusions. In the conditions of degradation of public and state institutions, the degradation of law and the archaization of justice became inevitable. Among the main medieval norms of Soviet law, the authors singled out: vague wording of the law, the class nature of law, the simplification of justice, the refusal of appeal, the restoration of medieval institutions of law (for example, mutual bail), the dominance of criminal law, the use of torture and others.
Key words: Soviet law, Soviet justice, the degradation of Soviet law, Stalinist justice.
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La Rosa De Foc – Barcelona 1937-2017. Lessons of Separatism С. 137-142
The article is devoted to separatism in Spain 1937-2017.
Key words: separatism in Spain, Catalonia, 1937-2017.
