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Russian law: theory and practice №1 – 2020
CIVIL LAW
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This paper researches the principles of civil liability, the concept of guilt in the Russian civil law and cases of liability application regardless of the guilt. The author examines force majeure and guilty intent of a complainant as the basis for discharge from tort (civil) liability. paper analyzes the features of force majeure, like extraordinariness and unavoidability, referring to the latest arbitrage practice.
Key words: civil liability, guilt, liability regardless of the guilt, force majeure, guilty intent of a complainant, discharge from liability.
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Based on the analysis of legislation and judicial practice, the article considers the principle of fair conduct of civil turnover participants in a market economy and concludes that this principle will be increasingly applied in practice.
Key words: intellectual property, exclusive rights, trademark.
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The authors of the article look at a possibility of holding economic subjects liable for unit discharge in a body of water established when carrying out state environmental monitoring. article analyses effective federal and regional legislation concerning such questions and refer to judicial practice.
Key words: monitoring, liability, environmental harm, ecological supervision, compensation for the damage inflicted.
BANKRUPTCY
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On the Notion of “Group of Companies” in the Juridical Practice of Russia С. 23-35
The paper investigates the notion of “group of companies” in the juridical practice of Russia. It contains a comparative analysis of the relevant statutes of the Russian Federation in their relation to the categories of “group of companies” and “group of persons”. It also gives examples of possible legal effects in case of recognizing an association of persons to be a group of companies. conclusion is that each system of legislative control establishes its own branch criteria of the organization’s belonging to a group. Correspondence of the relations between various legal persons to the said criteria may entail various legal effects. authors make grounded conclusions concerning the fact that the juridical system of Russia contains a number of statutory concepts similar to that of a group of companies; the mentioned statutory concepts of other types of business operation are aimed at achieving mutual goals, specifically: an investment company; a simple company (joint operation agreement); an investment partnership. article offers a definition of a group of companies in the juridical practice of Russia, according to which a group of companies is to be treated as an association (without being a legal person) of two or more legal persons and/or self-employed entrepreneurs, that has gained its status in accordance with the law, united on the basis of legal criteria (grounds), with the application of a definite system of allowances, bans and limitations in case of recognition of the association as a group of companies and a single consolidated person at law created for the implementation of mutual economic aims with the retention of an individual economic interest. Also, the authors define features of a group of companies which should include: an actual and economic association of legal persons and/or individual entrepreneurs without being a legal person; an association of entrepreneurs that has gained its status in accordance with the law; an affinity based on legal criteria (grounds), with the application of a definite system of allowances, bans and limitations in case of recognition of the association as a group of companies and as a single consolidated person at law; availability of a mutual economic aim with the organizations did not reveal the features (criteria) of an association mentioned by this or that regulatory system (tax, anti-trust, corporative, etc.), this means that the activity of the above listed organizations is a regular commercial activity of legal persons mediated by various legal ways of implementing legal personality by a particular legal person.
Key words: group of companies; group of persons; branch peculiarities; legal effects; features of a group of companies.
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Law on Insolvency (Bankruptcy): Controversies С. 36-43
The article addresses a number of contentious questions in the application of the Insolvency Law. These issues have arisen during the interpretation of the Law and judicial practice.
Key words: bankruptcy, dispute of the transaction, competitive mass, prepayments for goods, current payment.
COMPARATIVE LAW
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Objective Condition for Criminal Liability – a Continental Criminal Law Dilemma С. 44-53
Objective Condition for Criminal Liability is one of the most controversial academically debated topics in criminal law, since it opposes the basic principle of guilt that is required for every offence. It represents a highly disputed element of the offence that makes the person liable even when no guilt to that element can be attributed to him or her. Therefore, many advocate against using the objective condition for criminal liability or demand that it must be covered by at least negligence (lack of due diligence approach). The second problem is the uncertainty when an element of the offence is an objective condition for criminal liability; therefore, opposing the principle of legality as the basic legal principle in criminal law.
Key words: objective condition, element of an offence, guilt, criminal law, principle of legality.
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Implied Duty of Good Faith in English Contract Law — Recent Developments С. 54-62
The article discusses recent significant developments in English law regarding the implication of a duty of good faith in commercial contracts. It also addresses certain concerns that may arise in practice and outlines recommendations that should be considered when negotiating and performing a deal.
Key words: good faith, English contract law, commercial contracts.
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Students as Consumers of Educational Services in the English System of Higher Education С. 63-67
The article examines possible definitions of “customer” and “consumer” in higher education, as compared to what we currently understand of their meaning in a classical market economy. author identifies and assesses possible challenges to the assumption of the ‘students as consumers’ approach based on the available research. article draws upon a review of the currently available research in English including a documentary analysis of the English legal framework and supporting acts.
Key words: higher education, students, customer, consumer, consumer protection law, the quality of education.
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The article analyzes a new institution of contract law for the Russian law — indemnity, which is a more flexible legal mechanism for restoring the property status of a creditor, in some cases has become an alternative to such a measure of civil liability as damages. provisions of English law make it possible to secure indemnity as an exclusive sanction to replace damages. article concludes that there are significant differences in the nature of the institutes under consideration, the presence or absence of the obligation to reduce damage, the statute of limitations on claims for the appropriate type of compensation. In addition, the institute of indemnity, unlike liquidated damages, does not represent a measure of civil liability (this is a debt obligation, the period for filing claims for which is established directly in the contract); in the absence of limitations of the subject composition provides for a substitution of parties in the obligation; it is not of a nature of assignment, it is a “self” insurance that affects the formation of the contract price; it is not a way to determine the size of losses; unlike liquidated damages as a reasonable estimate of foreseeable losses, indemnity may act as a legal mechanism for limiting liability.
Key words: indemnity, contractual damages, liquidated damages, damage, civil liability.
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The article focuses on the study of legal, technical and factual possibilities of introducing artificial intelligence’s elements into the Russian judicial system and the judicial system of foreign countries. artificial intelligence is seen as a virtual assistant.
Key words: artificial intelligence, digitalization of the judicial system, new generation technologies, e-justice, e-court.
HISTORY
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USSR Advisers in Spain in 1936–1939 and Th eir Role in the Defense of the Republic С. 84-97
The article depicts the role of the Soviet advisers during the period of the civil war in Spain. For this, the authors relied on the participants’ memories about the events of Soviet military advisers as well as on the different sources of contemporary researchers. Special role was played by Marsel Israelevich Rosenberg, a Soviet diplomat, the first representative of the USSR in the League of Nations who in fact became the coordinator of a huge mechanism of activities carried out by the two intelligence services of the USSR: I ntelligence Agency of the Workers-Peasants Red Army (RKKA) and Foreign Intelligence of the Foreign Department of the General Directorate for State Security of the People’s Commissariat for Internal Affairs (NKVD). Scholars are still at odds concerning the motives for NKVD’s destruction of the elite of outstanding officials of People’s Commissariat of Foreign Affairs, RKKA, military and foreign intelligence services, party and Soviet workers, and popular writers. authors will dwell upon this theme in future publications.
Key words: civil war in Spain, the USSR advisers in Spain 1937-1939, army of putschists, Generalissimo F. Franco, international assistance to Spain, repressions of the USSR, advisers in Spain.
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Abay: Opening the Horizons of the New Era (on the Occasion of 175 Years of Birth) С. 98-112
The article is dedicated to the outstanding thinker, poet, and public figure of Kazakhstan — Abay Kunanbayev (1845-1904). biography and contemporary significance of his creative heritage are briefly presented. author considers Abay’s judicial and legislative activity, the basic norms of the “Charsky Regulation” (1885), in the preparation of which Abay participated actively and where an attempt was made to combine customary Kazakh law and imperial legislation. Abay’s criticism of various political and legal aspects and moral imperfections of the modern society and at the same time a strategic guide to the alliance with Russia are shown. author concludes that Abay as an educator, ahead of his time, opened the horizons of a new era for the Kazakh people, prepared their consciousness for the need to develop education and perception of Western culture, adjusted to the need to change some negative features of domestic psychology. At the same time, Abay together with the future leaders of the Alash Party cared about preserving the core national values and minimizing losses for the people at the upcoming steep turn of history.
Key words: Abay, Kazakhstan as a part of the Russian Empire, Abay’s participation in the lawmaking process, court of biys, customary law, enlightenment, Abay’s criticism of the then society.
