ARCHIVE FOR 2021 RUSSIAN
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Август 2021
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
M.A. Kobanenko Present and Future of the Public Procurement Control The article is devoted to the analysis of the so-called “optimisation
package” of amendments to the Federal Law of 5 April 2013
No. 44‑FZ “On the Contract System in State and Municipal
Procurement of Goods, Works and Services”. The amendments
adopted in July 2021 are aimed at simplifying, accelerating, unifying
the procurement processes for public needs and completing
the transfer of public procurement to electronic form. At the same
time, the discussion about conceptual approaches to the regulation
of the state procurement system continues: should it develop
along a rigid and formal path, or provide for greater freedom of
the parties to the state contract. Thus, the author proposes specific
measures for the further development of procurement legislation
aimed at balancing the interests of the parties of the state contract.
The article assesses the role of Federal Antimonopoly Service
(FAS) in exercising control over the public procurement, analyses
the features of protecting the violated rights of the procurement
participants when applying to FAS and the court. In addition,
the author of the article outlines the main problematic points arising
in the exercise of judicial control over the public procurement,
highlights the approaches of current judicial practice, including
the new “antimonopoly” Plenary Resolution of the Supreme Court
of the Russian Federation of 4 March 2021 No. 2.
Keywords:
governmental procurement, state contract, “optimisation package”, FAS Russia
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N.S. Pavlova, L.S. Plekhanova Criteria for the Effectiveness of Public Procurement: Unrecorded Effects Public procurement plays an important role in the national economy
and at the same time is a function of the state, requiring appropriate
institutional support. The choice of criteria for the effectiveness of
procurement has an impact on the assessment of the quality of
the relevant system, as well as on the trajectory of the development
of the institutional framework for procurement for public needs.
Based on the generalisation of the results of economic research, as
well as an analysis of the regulations governing public procurement
in the Russian Federation, an overview of existing approaches to assessing the effectiveness of procurement used in Russian
practice is presented, as well as the main drawbacks and limitations
of the most common assessment criteria are identified. Particular
attention is paid to the difficulties encountered in assessing
the efficiency and effectiveness of procurement in order to implement
large, technologically complex projects. The article was written on
the basis of the RANEPA state assignment research programme.
Keywords:
public procurement, budget procurement, effectiveness criteria for public procurement
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A.E. Kirpichev Public Sector Procurement and the System of Law of Obligations: Terminology and Selection of Applicable Rules Why is public procurement so different from other legislation on
contracts? How can a lawyer from another field understand the meaning
of public procurement rules within the traditional framework of contract
law? The article begins with a concise but accurate explanation of Russian
procurement terminology, as compared with other languages and legal
systems. After clarifying the meaning of rules, it deals with the doctrinal
framework of interference of general contract law and the public procurement law. It is shown that modern Roman (Southern European and
Latin American) legal systems tends to approximate public procurement
to the private law of obligations. German legal scholarship proposes
the same as a useful and practical approach. The Russian legal system
has already embraced a similar attitude. Examples about the contractor’s
right to withdraw from a contract show how one can combine rules from
the Civil Code and the special rules on public procurement.
Keywords:
public procurement, government procurement, ius proprium, public sector entities
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A.A. Sirotkina Change of the State (Municipal) Contract and Freedom of Contract The article focuses on modifications of state (municipal) contracts
including grounds and limits of such modifications. The study of
the dynamics of state (municipal) contracts would be incomplete
without a systematic view of the permissible changes in contracts,
taking into account both the provisions of the Russian Civil Code,
basic principles of civil legislation, the Law on Contractual System,
and the specifics of the subject matter of certain types of contracts.
Particular attention is paid to work and labour contracts since they
are most common and most frequently subject to changes sort of
public (municipal) contracts. The author has studied the procedure
of additional work performance, admissibility of including and
changing the contractual term on price with VAT; the influence
of the limit of budget funds granted to the customer on changes
in the contract terms, as well as antimonopoly risks of changing
contracts concluded as a result of tenders, requests for quotations
for goods, requests for proposals. Finally, the article deals with
the form of an agreement changing the state (municipal) contract
and the responsibility for violations of the rules of changing such
contract.
Keywords:
state contract, municipal contract, amendment of contract, freedom of contract
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V.A. Kondratev Requirements for Participants in Public Procurement The article examines the system of requirements for participants
in public procurement, provided by the legislation on the contract
system. The author analyses the requirements for procurement
participants, classifies them according to the criterion of the object
of verification and assessment, and, as a result, identifies groups
of requirements concerning legal status of a person, professional
qualities, conscientiousness of the participant and anti-corruption
requirements. The article also examines the specifics of the application of individual requirements for the procurement participants, both
general and additional, the features of attracting third parties
(subcontractors) to execution of the contract, including the possibility
of limiting the attraction subcontractors and the establishment of
additional requirements for them. Also, the author analyses changes in
the legislation of the contract system in terms of establishing additional
requirements for procurement participants, raises the question about
the possibility of providing the customer with wider freedom in setting
requirements for participants, and examines individual requirements
and features of their application in domestic practice.
Keywords:
public procurement, government customer, procurement participant, requirements for participants, additional requirements, government contract, register of unscrupulous suppliers
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Discussion Board
R.S. Ibragimov, He.D. Suragina, D.Yu. Churilova Ethics and AI Regulation The article is devoted to the study of diverse ethical problems in
the scope of development and deployment of the artificial intelligence
as part of its growing importance and influence on different spheres
of individuals’ lives and on society, especially on the moral sphere.
Considering ethics as a product of the human and society evolution,
the authors assume that at the current level of technological
development ethics in common with law and standardisation has
a high potential for regulating public relations in the sphere of artificial
intelligence. The authors propose a comprehensive regulatory
framework for artificial intelligence, which is based on the wide
range of regulatory tools in conjunction with a diversified approach
to certain ethical problems. This approach would help to enhance
trust to artificial intelligence systems and to create the regulatory
flexibility facilitating innovation and scientific achievements.
Keywords:
ethics, artificial intelligence, legal regulation, artificial intelligence system, developer, professional community, self-regulation, standardisation, code of ethics
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M.L. Galperin Why Will the Middle Ages Ensue from the Digital Age of Legal Education? The article analyses the recent trends in the development of
legal education, makes the attempt to assess them in the future
perspective. Using the historical background, taking into account
modern challenges author comes to the conclusion that legal
education is going to become more and more differentiated and
could hardly be put into the unified quality standard. In the age of
information technologies and global competition the values and aims
of the legal education should stay unchanged. It gives the chance to
legal education to be demanded in the future.
Keywords:
legal education, legal career, teaching law
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K.A. Sasov What Should Be a General Rule on Tax Abuse Given the negative expert assessments of Article 54.1 of the Tax
Code and unsuccessful attempts of the Ministry of Finance and
the Federal Tax Service in its interpretation, the author proposes
his own version of the general rule against tax abuse of taxpayers.
Keywords:
tax abuse, abuse of taxpayer rights, aggressive tax planning, tax liability
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A.P. Evseev The Eighth Month The fall of Kabul — Article by Ivan Safronov in Vedomosti — Judgment of the European Court of Human Rights in the case of Gumenyuk and Others v. Ukraine — Ruling of the Russian Constitutional Court on the complaint of citizen E.V. Mokeev — Control and supervision reform
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Theory and practice
L.A. Novoselova Disposal of Human Body: Civil Law Aspect The author makes an attempt to determine the legal regime of human
body (its organs and tissues) during one’s life. Theoretical views
about the possibility of considering the human body, its organs and
tissues after their separation from the body as an object of property
(real) rights, as well as personal non-property rights are analysed.
Qualification of the body and the organs not separated from it during
one’s life as an object of property rights belonging, among others, to
the person himself is stated impossible. The human body as a single
object is a personal non-property good, while its organs and tissues
may be considered as objects of property rights provided that they
are separated from the body and the person has expressed the will
determining such a possibility with regard to his body. Finally,
the peculiarities of the legal regime of the separated human organs
and tissues as things restricted in turnover and the influence of
the regime of protection of personal non-property rights on it are
considered.
Keywords:
human body, thing, bequest, title to the body, personal nonproperty rights
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D.B. Volodarskiy, I.N. Kashkarova On the Issue of the Estoppel Doctrine Implementation: Procedural Aspects (Part 2) This article is one in the set of publications about the different
types of procedural estoppels used in the Russian judicial practice.
The main goal was the estimation of the positive potential, which
the doctrine of estoppel might have for the development of
the Russian Law of Civil Procedure. It is postulated that the wide
application of estoppel against the late presentation of procedural
materials discovers, that the normative framework of the Russian Law of Civil Procedure does not sufficiently provide the principle
of procedural concentration (the general idea about the duty of
the parties to present all means of attack and defense on the early
stages of litigation). Based on the comparative analysis (USA,
Germany) the authors state that this problem might be cured by
the more vigorous implementation of the stage-preclusion principle
in the Russian Law of Civil Procedure.
Keywords:
procedural estoppel, stage-preclusion principle, concentration of procedural materials
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A.V. Basharin On the Possibility of Changing Urban Planning Documentation Based on Agreements between Public Law Entities and Private Individuals. Prospects for Conditional and Contract Zoning in Russian Law The article is focused on the problem of agreements that application
urban planning documentation and are concluded between
individuals and public entities. The comparative part of the article
presents the American experience of land use, which provides
the necessary flexibility in regulating urban development due to
the institutions of conditional and contractual zoning. According to the author, the Russian institute of deferred urban development
protocols resembles the institute of conditional zoning and provides
for the types of permitted use of land plots which can be carried out
only after the expiration of a certain period or when certain conditions
occur. The existing legal uncertainty regarding the regulation of
agreements in the field of urban development between private
individuals and public entities prevents the adoption of the institution
of contract zoning in Russian law. Finally, it is concluded that only
the systematic application of various institutions of urban planning
legislation will create transparent conditions for private entities, will
provide an opportunity for the development of the urban environment.
Keywords:
conditional zoning, contract zoning, redevelopment, land use and development rules, special permits, variances
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