Magazine content за Февраль 2012 г.
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ARCHIVE FOR 2012    RUSSIAN

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Февраль 2012

CONTENT

 

Table of contents

 

Chief editor’s column

Piskunov Ya.B. Editorial note

 

Interview of the issue

Kovler A.I. Rumours about the conflict between ECtHR and Russian Constitutional Court are a bit exaggerated
Yan Piskunov - Chief Editor of “Law” magazine is interviewing Anatoly Kovler – EctHR judge
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The Event. Comments of the Experts

Task to investigate: governmental measures to take control over contractors of state-owned enterprises
On December, 30th 2011, the Russian Government charged power gen and other state-owned companies and banks with a commitment to disclose information about their contractors’ beneficiaries. Agreements with the contractors who refused to submit such information had to be terminated. Judicial community responded to this commitment ambiguously. We asked our experts to comment on the above issue.

 

Topic of the issue

Sultanov A.R. How to improve system of human rights and freedoms protection
The author is talking about ways to improve system of human rights and freedoms protection and reveals related problems in this field using as an example the Decree issued by ECtHR for the case “Kimlya and others against Russia”. This article also highlights prejudicialness of interpretation of ECtHR decrees where they say about violation of human rights and freedoms.
Keywords: ECtHR, human rights, prejudicialness, civil trial, execution of ECtHR decrees
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Panova I.V. Administrative Law in the decrees of European Court of Human Rights
The article highlights typical approach used by ECtHR whose function is, in accordance with European Convention about Human Rights and Freedoms, to adjudicate suits against the governments in the context of administrative cases. The author is reviewing approaches to be considered for upgrade of administrative legislation and procedures.
Keywords: EU right, court practice, Convention about Protection of Human Rights, administrative practice, European Court for Human Rights
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Golubok S.A. Administrative Code: impossible can also happen….
The article highlights legal and law-enforcement compliance of some Administrative Code provisions with provisions of Human Rights and Freedoms Convention in ECtHR’s interpretation.
Keywords: European Court for Human Right, Constitutional Court of the Russian Federation, Administrative Code of the Russian Federation.
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Bogush G.I. Certainty of penal legislation: ECtHR practice
The article gives analysis of ECtHR’s practice in using Article 7 of Convention about Human Rights and Freedoms. The main emphasis is put on the Certainty of penal norms which affect the value of penal legislation. Despite absolute nature of warranty stated in Article 7 of Convention ECtHR is very cautious in assessments of national penal legislation and its application practice, admitting violations only in the most outrageous cases. However such flexible approach used by ECtHR does not release the local governments from responsibility for the value of penal legislation.
Keywords: penal law, legal Certainty, principle of legality, ECtHR practice
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Bulgakov D.A. Can we view bankruptcy manager as representative of the state: position of European Court for Human Rights
The article represents discussion about possibility for the Russian Federation to accept responsibility for the consequences of illegal manipulations of bankruptcy managers appointed by the Arbitration Court to be the state representative. The example is ECtHR’s decree for the case “Kotov against Russia” which was submitted for consideration of ECtHR Grand Chamber on June, 28th 2010.
Keywords: bankruptcy manager, deprivation of property, responsibility of Russian Federation, ECtHR
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Discussion Board

Pilipenko Y.S. Concept of penal and legal policy: reality and prospects.
The article outlines major problems which were formulated by Federal Chamber of Lawyers and which exist in the field of protection civil rights and freedoms in criminal justice procedures. Finding solution of these problems is a must for building-up new penal and legal policy in Russia.
Keywords: delinquency, legal and penal policy, criminal prosecution, operational investigations, independence of court, advocateship, protection of civil rights and freedoms.
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Judicial practice. Comments

Zaripov V.M. How not to get lost in the three branches of law: history of one court suit
Using some court proceeding as an example the author is investigating the nature and specific features of legal relations between some municipal unit, Russian constituent entity, and the Russian Federation.
Keywords: tax reimbursement, budget relations, indemnity, unreasonable earnings
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Theory and practice

Lomidze O.G., Lomidze E.Y. Methods of protection of stakeholder’s violated right aimed at restoration of corporate control
Choosing certain methods of protection depends on the nature of legal objects. As far as shares and equity stakes are concerned, loss of legitimation for the rights holder means loss of possibility to use material benefits and execute proprietary rights. The article reviews legal prescriptions about legitimation of rights of company participants and offers suggestions of appropriate methods of violated rights protection.
Keywords: corporate rights, corporate control, restoration of corporate control, methods of civil rights protection
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Rozhkova M.A. Judicial “Frankenstein”: putting the regulations about pledge notification and the regulations about listing of pledged automobiles in the same law.
The article represents analysis of the draft of Federal Law “Registration of notifications about pledge of movable property “. The author criticizes the suggested provisions of the law, explains its major disadvantages and gives assessment for the regulatory effect of the law.
Keywords: registration of notifications about pledge of movable property, sale of pledged automobiles, pledged automobiles register
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Muranov A.I. Commitments of Russian Federation as a would-be member of World Trade Organization in the field of legal services.
Russia is planning to become rightful WTO member in 2012 and in accordance with General Agreement on trade in services (GATS), we commit ourselves to allow other WTO members to various service markets. One of such markets is sector of delivering legal services. The article analyses commitments of Russia as would-be WTO member in relation to legal services sector. The author criticizes these commitments and reveals methodology and technical mistakes in the text of these commitments.
Keywords: World Trade Organization, accidence of Russia in WTO, international commitments of Russia, GATS, legal services
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Demin A.V. “Law intentional silence” about fiscal and legal regulatory mechanisms.
The article investigates into poorly explored problem related to the concept of “law intentional silence”. The author believes that the latter is not actually a blank but intentionally used judicial instrument of legal control. In its nature intentional silence can be negative and shows that the legislator is not willing to give any legal effect to some issue. It can either be understood as positive, when open legal instruments are used and the legislator assigns the particularization of these instruments to the level where the law is actually administrated.
Keywords: law intentional silence, fiscal law, tax, taxation
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Kinyov A.Y. The third antimonopoly legislative package and campaign against cartels
The article represents analysis of new laws introduced in antimonopoly legislation after adoption of the third series of amended regulations to explore how they influence the campaign against cartels.
Keywords: antimonopoly legislation, Competition Law, cartel, anti-competition agreements, anti-competition coordinated actions, administrative liability, criminal liability, anti-monopolistic agencies, Federal Antimonopoly Service of the Russian Federation
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Zorkoltsev R.D. Responsibility of property developers in the field of transactions with land to be used for construction of private suburban houses.
The article offers methods of bringing unfair developers to liability, unfair developers are contractors and sellers of land plots which is meant for construction of private suburban houses. The author comes to the conclusion that the nature of transactions in this market and legal relations enables the buyers to substantiate their claims sued in legal proceedings and refer to the provisions of Consumer Rights Protection Law.
Keywords: responsibility of developers, land transactions, private housing construction, construction of suburban houses, purchasing land and real estate, consumer rights protection
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Foreign experience

Fogel V.A., Schmidt S.G. Managing methods of collateralization in Germany in connection with making a syndicated credit agreement.
To improve liquidity of rights in the credit agreement banks developed standards of credit documentation which introduce the position of collateral manager. This allows for flexibility in changing subjects of credit legal relations at the creditors’ side. At the same time validity and priority of collateral when levying execution remain the same.
Keywords: syndicated credit, ensuring performance of Debtor’s obligations, managing collateral methods, injunctive measures package
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