Russian law: theory and practice №2 – 2019

• From the Editor-in-Chief С. 5

PUBLIC LAW

• Koudelka Zdeněk

  Development of Local Administration in Bohemia, Moravia and Silesia until 1990 С. 6-29

  Koudelka Zdeněk Department of Constitutional Law and Political Science, Faculty of Law, Masaryk University; Karel Engliš College; Brno, Czech Republic

  The article focuses on the development of local administration in Moravia, Silesia and Bohemia by the year 1990, and the administration of municipalities, districts, regions and countries.

  Key words: local administration; Moravia; Silesia; Bohemia.

• Sheverdyaev Stanislav N., Layer Yelizaveta A.,

  The Concept of Open Government in the Russian Legislation С. 30-37

  Sheverdyaev Stanislav N., Executive Director of the Research and Educational Center for Constitutionalism and Local Self-Governance at the M. V. Lomonosov Moscow State University, PhD. in Law, Expert at the Laboratory for Anti-Corruption Policy at the Higher School of Economics
  
  Layer Yelizaveta A., Research Analyst at Th omson Reuters

  The article analyzes peculiarities of the concept of openness of authority in the modern Russian legislation. The authors show evolution of such approaches to improve the legal guarantee of open government based on the analysis of legal literature from foreign and Russian sources. The authors believe that, in the Russian academic discourse, at least, three main formulations of the issue of openness of authority can be highlighted. These three formulations serve as attempts to bridge the gap between the levels of development of Western democracies and Russia. First, the idea of “glasnost” is very distinct. During the times of Perestroika in the USSR, it touches the main characteristic of the political regime itself and was later embodied in the constitutional category of ideological and political pluralism. Second, openness of authority is expressed in the guarantee of the constitutional right of citizens to access government information. This was aimed at counteracting the traditional environment of secrecy surrounding the activities of Russian government institutions. Thirdly, there is an exploitation of the idea of open government, perceived in the spirit of the initiative signed by the American President Barack Obama in 2009, which was designed to encourage the participation of citizens in the process of public affairs management and social scrutiny.

  Key words: open government, openness of government institutions, open society, constitutional right of access to information, political pluralism, Open Government Initiative.

ECONOMY AND LAW

• Belykh Vladimir S., Bolobonova Maria O.

  Legal Regulation of Digital Financial Assets in Russia: Controversial Issues of Theory and Practice С. 38-47

  Belykh Vladimir S., Honored Worker of Science of the Russian Federation, Professor, Doctor of Law, Head of Entrepreneurial Law Department, Ural State Law University, Yekaterinburg, Russia
  
  Bolobonova Maria O., Lecturer, Entrepreneurial Law Department, Ural State Law University, Yekaterinburg, Russia

  The article focuses on the problems of legal regulation of “digital financial assets” in Russia and considers their place in the system of objects of civil rights.

  Key words: digital economy, blockchain, digital assets, cryptocurrency, tokens, objects of civil rights.

• Popondopulo Vladimir F., Silina Elena V.

  Digital Relationship: a Problem of Understanding С. 48-57

  Popondopulo Vladimir F., Doctor of Law, Professor, Head of Commercial Law Department, St. Petersburg State University
  
  Silina Elena V., Doctor of Law, Associate Professor, Head of Business Law Department, Leningrad State University named after A.S. Pushkin

  The article focuses on peculiarities of different legal forms of digital relations. The aim of the article is to demonstrate that digitization of the economy implies changing forms of economic relations, but not their content. In conditions of the digitized economy when we use an electronic system of data registration in databases and its exchange, the automated system of data management and the economic processes which used to be in the paper (documentary) form are being transformed into a new digital electronic (non-documentary) form. The law shall take into account such changes by passing legislation reflecting peculiarities of the origin and implementation of real economic processes under the conditions of digitization and peculiarities of their application. Meanwhile the nature of the legal instruments used remains the same and is expressed through well-known legal terminology: legal relations, grounds for their dynamics, subjects, objects, content.

  Key words: digitized economy, digital relationship, digital subjects, digital object, digital content.

• Semyakin Mikhail N.

  Economic Analysis of Private Law in Russia: Formation, Controversial Issues, and Development Prospects С. 58-69

  Semyakin Mikhail N. Doctor of Law, Professor of the Civil Law Department, Ural State Law University, Yekaterinburg

  The article examines the history and development of the economic analysis of law in Russia. In this regard, the author refers to works of famous legal scholars such as Yu. S. Gambarov, L. I. Petrazhitsky, E. B. Pashukanis. The Soviet period, starting from the second half of 1950s and mainly in 1960s-1970s, saw an increased interest of legal scholars to complex economiclaw research of social reality phenomena. The article deals with several drawbacks and problems of an organizational, methodological and another character that make it difficult to use the potential of the economic analysis of law in scientific research as well as particularly in law-making and law enforcement activity.

  Key words: economy and law, economic analysis of law, methodology and models of research, drawbacks and problems of research.

ENTREPRENEURSHIP AND LAW

• Telyoukina Marina V., Segalova Elena A.

  The Problem of the Economic Failure (Konkursnoe) Law Term and Some Legal Trends in the Economic Failure Law Development С. 70-73

  Telyoukina Marina V., Doctor of Law, Professor, Civil Law and Procedure Department, RANEPA, Yekaterinburg
  
  Segalova Elena A., PhD in Law, Senior Lecturer, Civil Law and Procedure Department, RANEPA, Yekaterinburg

  Currently there is a doctrinal trend to abandon the use of such terms as economic failure law and economic failure relationship; insolvency law and insolvency (bankruptcy) terms are used instead. This article identifies the causes of this phenomenon, gives a negative assessment and proposes to return to the historically rooted term of economic failure law used by Russian prerevolutionary academics. Furthermore, the article identifies some tendencies of modern economic failure law development.

  Key words: economic failure law, economic failure relationship, bankruptcy, insolvency (bankruptcy) law, insolvency (bankruptcy), transformational impact of the economic failure law.

• Кosyanenko Elena M.

  Legal Problems of Developing Franchising in Small Business in Russia С. 74-81

  Кosyanenko Elena M. PhD in Law, Associate Professor, Entrepreneurial Law Department, Ural State Law University, Yekaterinburg, Russia

  The article examines legal problems that prevent the stable development of Russian small businesses based on the franchise system. The author makes a comparative legal analysis of the subject matter of the contract, specific features of its conclusion and consequences of failure to fulfil obligations to register the transfer of rights.

  Key words: commercial concession, franchising, a license contract, contract registration, trademark, commercial designation, unjust enrichment, recovery of damages.

• Stepanchenko Andrey V.

  Transferring a Foreign Currency to a Notary’s Deposit as a Way of Fulfilling an Obligation С. 82-93

  Stepanchenko Andrey V. PhD in Law, Associate Professor, Department of Entrepreneurial Law, Ural State Law University, Yekaterinburg, Russia

  In order to fulfill an obligation, third parties may be involved supporting the creditor or the debtor, or both. If the obligation is fulfilled by a third party bypassing the creditor, the debtor may require proof that the creditor or the authorized person accepts the fulfillment. The article discusses a method of proper fulfillment of an obligation, such as transferring funds, including a foreign currency, to a notary’s deposit. The author analyzes resulting controversial issues and proposes ways of solving them.

  Key words: foreign currency, monetary obligation, fulfillment of an obligation, notary’s deposit.

CIVIL LIABILITY: THEORY AND PRACTICE

• Shevchenko Galina N.

  Mixed Liability: Notion and Practice С. 94-101

  Shevchenko Galina N. Doctor of Law, Professor, Civil Law Department, Vladivostok Branch of the Russian Customs Academy

  The article analyses the notion of mixed liability, when undue performance of an obligation can be caused by actions (omission to act) of both a debtor and a creditor. Damages arising are an inseparable result of the guilty conduct of both parties. Under the circumstances the court can reduce the extent of liability of the debtor, decreasing it correspondingly to the extent of the guilt of the creditor. The author analyses Articles 404 and 406 of the Civil Code of the Russian Federation, their application by the arbitration courts as well as the problems of their application. It is noted that the legal practice is rather contradictory and the principle of equality of the subjects of civil relations is breached.

  Key words: mixed liability, guilt of the debtor, guilt of the creditor, creditor’s obligations, replacement transactions, legal practice.

• Bazhina Maria A.

  The Main Principles of Liability of the Carrier According the Contract of Carriage of Goods by Road С. 102-107

  Bazhina Maria A. PhD in Law, Senior Lecturer, Business Law Department, Ural State Law University, Yekaterinburg

  The article deals with the international contract for carriage of goods by road. The author points out the main problems that arise during the performance of the contract for carriage of goods, for instance, the way of determining the carrier liable for the loss and damage of goods, cases of limitation and release of the carrier from liability.

  Key words: contract for carriage of goods, the carrier, the sender, transportation, CMR, International Carriage of Goods by Road, Supreme Court, the performing carrier, first carrier, last carrier, successive carrier, liability of the carrier.

COMPARATIVE RESEARCH

• Moroz Svetlana P.

  Favorable Investment Climate in Kazakhstan: a Myth or Reality? С. 108-120

  Moroz Svetlana P. Doctor of Law, Professor Senior Researcher, Department of Business, Competition and Ecological Law, South Ural State University, Dean of Adilet School of Law, Caspian University,

  The article discusses current issues of creating a favorable investment climate in the Republic of Kazakhstan. The author analyzes the development and formation of the investment legislation of the Republic of Kazakhstan, the public administration reforms in the field of investment, the role of the Iinvestment Ombudsman, creation of the Astana International Financial Centre (AIFC). The author notes the importance and the need to improve the investment climate through the formation of special investment legislation, the creation of a single state body in the field of investment, the improvement of Kazakhstan’s legislation to ensure proper protection of investors’ rights.

  Key words: investment climate, investment legislation of the Republic of Kazakhstan, foreign investors, investments, investment policy.

• Shliapnikova Daria

  Recognition and Enforcement of the English Court Judgments in Russia С. 121-128

  Shliapnikova Daria National Research University Higher School of Economics, Moscow, Russia

  The interaction of the legal systems of the Russian Federation and Great Britain is ever-increasing. One of the integral components of such interaction is the recognition and enforcement of judgments of one country in the territory of another. More and more often, English courts consider disputes between Russian citizens or property located in the Russian Federation. So, under what circumstances judgments of English courts will be recognized and enforced in the territory of the Russian Federation? The author of the article discusses the provisions of Russian law applicable to this issue as well as analyses current judicial practice.

  Key words: English courts judgments, recognition and enforcement of judgments.