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Russian law: theory and practice №1 – 2019
CONSTITUTIONAL LAW
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Constitutional Justice: Understanding Law С. 8-19
The article focuses on understanding constitutional law rules. The author notes that the objects of interpretation when implementing the constitutional proceedings are very different from conventional products. In particular, the interpretation of the Constitution of different crosses of conceptual spaces — art, theology, morality, law. Thus, the rules of constitutional law are not only in the legal context, but also in the context of individual consciousness of judges constituting the Board, i.e. the subject of the constitutional understanding and in a complex cultural and historical context.
Key words: constitutional law, interpretation, hermeneutics, legal understanding.
ECONOMY, BUSINESS AND LAW
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Exclusion of a Shareholder From a Non-Public Joint-Stock Company С. 25-34
The article reviews the issue of exclusion of a shareholder from a non-public joint stock company, the possibility of which is recorded in restated Article 67 (1) of the Civil Code of the Russian Federation. The author proceeds from the fact that the nature of a joint-stock company as a capital association does not allow exclusion of a shareholder. The article focuses on the fact that the Federal Law “On Joint-Stock Companies” does not provide for the grounds and procedure for the exclusion of a shareholder from a non-public jointstock company, as well as the procedure for determination of the price of shares paid to an excluded shareholder. The author raises a question of applying other methods of protection of the company from unfair shareholders that meet the nature of a joint-stock company.
Key words: non-public joint-stock company, reasonable shareholder, exclusion of a shareholder, repurchase of shares from shareholders.
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On the Issue of the Legal Nature of Acts of Business Planning С. 35-39
The article discusses the legal nature of acts of business planning. Objective: to determine the legal nature and features of business planning acts. Research methods: the general scientific dialectical method of cognition and particular scientific methods resulting from it: sociological, logical, system-structural, technical-legal, legal modelling methods. Results: in the conditions of modern economic development, planning is an important tool for regulating business activities. The acts of strategic planning, being specialized norms, refer to the regulatory and legal requirements. Conclusions: acts of strategic business planning are based on positive obligation and allow systematization of legislation in the field of business regulation, provide directions for improving the development of such regulation, contributing to the implementation of processes of modernization of the market economy.
Key words: planning, act, forecasting, entrepreneurial activity, normative regulation.
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Economic and Legal Features of Technical Regulation of Business Activity in Russia С. 40-46
The research focuses on the economic and legal analysis of the institution of technical regulation of business activity in Russia. The author views economic features of technical regulation within the institutionalism theory, revealing the specificity of technical regulation as a legal institution.
Key words: technical regulation, standardization, institutionalism, institutional environment, personalization of goods, credence goods, deals (transactions), legal regulation, legal institution, functions of the legal institution of technical regulation.
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Russia’s Legislation on Access to Information: Current State and Development Perspectives С. 47-65
The author analyzes a current state of the Russian legislation which concretizes regulations of international law and the Constitution of Russia on the right to seek and receive information, identifies problems of legal regulation of this right and specifies the perspective directions of developing the Russian information legislation. The author makes an analysis of this legislation, its system communications and a ratio between legal acts.
Key words: the right to seek and receive information, confidentiality of information, freedom to impart information, information legislation, information rights and freedoms, protection of personal information.
SPACE STATE AND LAW
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Space State: Possible Options for Forming С. 66-75
Udartsev Sergey F. Doctor of Law, Professor M. Narikbaev “KAZGUU” University Nur-Sultan, Kazakhstan
The article emphasizes the role, which the space activity plays at the present stage of the evolution of the human civilization and the inevitability of its activation over the next 10-15 years. Space-related elements emerge along with others in the structure and functions of a modern developed country. Besides, the scientific, economic, military and other values of its space activity are increasing. In the 21st century, the emerging states are gradually turning into one space state that coordinates and organizes not only the activity on the Earth, but the public and private activities far beyond the planet, in outer space too. Some pivotal countries have already reached the phase of this historical development of statehood. The article addresses main options of the formation of a space state: natural (nationstates and their alliances, mixed — a complex planetary state) and artificial which is exemplified for the last several years by the emerging of unrecognized space kingdom, Asgardia. Hypothetically, it is also possible that the speed of the establishment and evolution of the space state and its forms can depend on the external influence coming from outer space. The options of enshrining the character of the state activity, i.e. its cosmic status, politically and legally (by means of declarations, laws, constitutions, etc.), are also considered. The author thinks that this global and irreversible trend of the formation of space statehood should be taken into account both in the political and legal doctrine and in political perspectives, long-term and middle term strategic documents and modern state development programs.
Key words: evolution of a state, space activity, space law, a space state, formation of a space state, ways of a space state formation, natural and artificial ways of a space state formation, internal and external impact on a space state formation.
ENERGY LAW
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Concept and Legal Nature of Capacity in the Energy Sector С. 76-86
The author puts forward the concept of contracts for supply through the attached [connected] network, characterized by two stages of their development: at the first stage of contracts for power supply capacity is their legal object and it takes the form of activity of a supplying organization carried out to ensure the availability of equipment for generation and transmission of resources in the amount and of the quality agreed upon with the consumer, and at the second stage of the contracts capacity is a quantitative and qualitative indicator of a material object — electrical and thermal energy transmitted to the consumer. Used in the legislation on electricity, the term can also be extended to the contractual relationship arising out of supply through connected network of other resources — oil, petroleum products and cold water.
Key words: power, energy, obligations to supply through the attached network (SCHPS), objects contracts for energy supply.
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Electricity Sector Reform: Legal Aspects and International Practice С. 87-94
The article analyses global trends aimed at reforming the energy sector, with an in-depth analysis of legal practice in different countries in the world.
Key words: power supply, energy sector, tariffs for energy services.
ARBITRATION COURTS AND DISPUTES
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Unification of Procedural Law in Russia С. 95-101
The article focuses on a new notion — a civilistic process as a combination of civil and arbitration proceedings. Mutual changes take place not only in court proceedings but also in the court structure. The author makes an analysis of trends leading to the unification of procedural law in Russia.
Key words: arbitration proceedings, administrative proceedings, unification of procedural law.
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The author of the paper proves that business entities’ reputational damages as a result of the dissemination of false and defamatory information influence company’s contractors and consumers in a negative way and entail losses from the injured party. The article examines the connection of defamation committed against a member of a board of directors or an employee of a legal entity with business reputation of the organization. It is argued that a corporation shall prove that there is a link between the director or an employee with itself in order to claim damages from the person who damages the director’s or employee’s reputation.
Key words: business reputation, defamation, legal entity, commercial name, nonpecuniary damage.
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Applicable English Law in the Jurisdiction of Russian Arbitration Courts С. 107-116
The article examines several controversial issues concerning application of English law by Russian arbitration courts. The article focuses on the institutions of the limitation period and undue influence. Besides, the author gives examples of cases when parties enter into contracts, the provisions of which are aimed at limiting or exempting the debtor from liability if the debtor fails to comply with contractual obligations.
Key words: English law, contractual provisions on its appliance, cases of applying English law in the jurisdiction of arbitration courts.
COMPARATIVE LAW
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Modern society faces more and more digitalization of our lives; rapid online fl ow of the information is not obstructed by the state borders; businesses are globalized and cross-border activities constitute our day-to-day life. Still and fortunately, the institute of the personal human rights and interests remains one of the most frequently overriding factors, imposing boundaries on online and offline flow of personal information. These developments bring up new challenges to the local legislators particularly when it comes to finding a balance between protection of the persons against unlawful flow of their personal information and freedom of (cross-border) movement of the information. The adoption of Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, more known as the General Data Protection Regulation or the GDPR, is said to be one of the biggest legal news in the area of the personal data protection for the last 20 years. The impact of the GDPR increases in comparison with other similar regulations in the light of its extraterritorial application, which will be explained further in this article. The abovementioned globalization and digitalization make it impossible to live within the frames of the legislation of one country: flowing information, including personal data, are subject to the legal regulation in different jurisdictions, which shall be taken carefully into account. In this light, the present article aims at providing legal framework and especially practical examples about the territorial application of the GDPR, with a short overview of the analogical legal rules of the Russian Federation, as well as about the lawfulness of the personal data processing according to the GDPR and the laws of the Russian Federation.
Key words: GDPR, personal data protection, application of GDPR, lawfulness of personal data processing, international transfer of personal data.
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The article analyzes the experience of developed countries in state regulation of their financial market in terms of its institutional organization. The authors try to reveal the most common approaches to regulating the financial market, which include institutional, functional, integrated, “twin peaks”, and targeted approaches. The article focuses on positive and negative aspects of these regulatory scenarios, including the organization of interbank relations. The authors show advantages and disadvantages of the delegation of state regulation to the mega-regulator and come to the general conclusions about the perspectives of the optimal organization of regulation in the financial market.
Key words: mega-regulator, financial market, state regulation, credit institution, bank.
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Comparative Analysis of Proving Procedure Within Tax Determination Procedure С. 138-149
The authors discuss topical issues of proving as a central part of tax determination procedure which have proved problematic during long-term following of the (Slovenian) tax law (as part of European union tax law). Tax determination procedure in practice, does not function even after all the fundamental principles of tax procedure law. However, despite the clear legal regulation of the evidence procedure, in practice in some cases in the tax determination procedure some principles are not observed, although they ought to be. This presents the significant problem for the functioning of the principle of legality and the principle of material truth in tax law. The authors carried out a comparative analysis of individual tax determination procedure elements which are analysed on the basis of legal system with long and rich court and administrative case law.
Key words: tax evidence procedure, legality principle, material truth, burden of proof, exclusive of burden of proof, standard of proof, fishing expeditions.
POSTGRADUATE SCIENTIFIC RESEARCH
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The Role of the Documentary Letter of Credit in the Contract of Supply С. 150-155
The article examines the possibility of applying a Documentary Letter of Credit and its role in the Supply Contract, which provides its counterparties with a certain level of guarantee in obtaining payments. The use of this type of the Letter of Credit is possible not only for those counterparties who concluded contracts for the supply of goods in the domestic market, but also at the international level, especially when it comes to the import or export of goods. The principle of the Documentary Letter of Credit is that the buyer is guaranteed to be protected from the risks of not receiving the paid goods, since the nominated bank will pay only against those documents that will comply with the terms of the Letter of Credit. The seller, in their turn, timely meeting their obligations to the buyer and submitting to the bank the documents in full compliance with the terms of the Letter of Credit, is guaranteed to receive payment regardless of the buyer.
Key words: Letter of Credit, Documentary Letter of Credit, settlements by Letters of Credit, execution of a Letter of Credit, monetary obligation of the bank, UCP-600, foreign trade transactions.
