Substitution of Parties in the Obligation and Suretyship: Contradictions in the Construction of a Solidary Plurality of Persons (Part 1)

Legal Concept ◽  
2021 ◽  
pp. 119-124
Author(s):  
Natalia Kvitsinia ◽  
◽  
Elvira Osadchenko ◽  
Keyword(s):  
Law Enforcement ◽  
Civil Law ◽  
Court Decisions ◽  
Legal Position ◽  
The Russian Federation ◽  
Similarities And Differences ◽  
Historical Comparative ◽  
Broad Interpretation ◽  
Proper Performance ◽  
Logical Research

Introduction: the authors conducted a study of the differentiation of the norms on surety and substitution of parties in the obligation due to the lack of their clear regulation by the legislator. The paper discusses the concepts of co-suretyship and individual suretyship, reveals their similarities and differences. The authors highlighted the problems of applying the rules on the substitution of parties in the obligation and the responsibility of the surety and also suggested the ways to resolve them. The purpose of the study is to develop some proposals for improving the institution of suretyship and bringing it into line with the norms on the substitution of parties in an obligation. Methods: the study used historical, comparative law, logical research methods, as well as the method of the literal and broad interpretation of normative legal acts and court decisions. Results: the civil law doctrine of the institute of suretyship and co-suretyship was supplemented, the legal position of suretyship in the proper performance of its obligations for the debtor was determined from the standpoint of the science of civil law. Conclusions: according to the results of the study, it is proposed to amend the current legislation and completely exclude from it the provisions on the independent regulation of “joint suretyship”, i.e. to recognize Part 3 of Article 363 of the Civil Code of the Russian Federation as invalid. The provisions developed by the authors will simplify and streamline the law enforcement practice in the issues under consideration.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

scholarly journals Criminal Procedural Code of the Russian Federation: evaluation of effectiveness and measures for its improvement

2021 ◽  
pp. 868-877
Author(s):  
Boris Gavrilov
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Russian Federation ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Dialectical Logic ◽  
Legal Norms ◽  
Procedural Code ◽  
The Russian Federation ◽  
Historical Comparative

Introduction: the article analyzes provisions of the Criminal Procedural Code of the Russian Federation and its impact on the implementation of key legal institutions designed to ensure respect for the rights and legitimate interests of criminal proceedings participants by law enforcement and judicial authorities. Purpose: having studied effectiveness of the amendments made in the CPC and conducted statistical analysis of the results of criminal cases investigation, the author presents shortcomings in the legislation identified by the scientific community and law enforcement practice and proposes measures to improve both certain legal norms of the CPC RF and its procedural institutions in order to ensure constitutional provisions on the state protection of human and civil rights and freedoms. Methods: the researcher used historical, comparative legal and empirical methods for describing quality and legality issues in the investigation of criminal cases; theoretical methods of formal and dialectical logic. Private scientific and legal technical methods, as well as the method for interpreting specific legal norms were applied. Results: the analysis of development of Russian and foreign criminal procedural legislation and law enforcement practice objectively indicates that the absolute majority of the amendments made to the Code contributed to enhancing performance of pre-trial investigation or initial inquiry bodies in implementing the provisions of Article 6 of the CPC. It stipulates protection of the rights and lawful interests of the persons and organizations, who (which) have suffered from the crimes, as well as their protection from unlawful accusations and conviction, and other restrictions of their rights and freedoms. Betterment of the criminal procedural legislation is also aimed at overcoming formalization of its individual provisions and bureaucratization of actions of the inquirer, investigator, prosecutor’s office and judicial community in the investigation and trial of criminal cases. Conclusions: to adapt the modern Russian criminal process to modern realities (new types of crimes and methods of their commission, increased requirements for ensuring legality in activities of pre-trial investigation bodies, their compliance with procedural deadlines in criminal cases and improving investigation quality) it is necessary to make changes in pre-trial proceedings, in particular, to reorganize procedural rules for commencement of criminal proceedings; bringing investigation terms into line with the provisions of Article 61 of the CPC on a reasonable period of criminal proceedings; differentiating investigation forms, etc. All this is focused on improving effectiveness of the fight against crime and its most dangerous types.

scholarly journals The Northern Sea Route: Problems of National Status Legitimization under International Law. Part II

2020 ◽  
pp. 130-147
Author(s):  
Pavel GUDEV ◽  
Keyword(s):  
International Law ◽  
Legal Status ◽  
The Arctic ◽  
Northern Sea Route ◽  
The Status ◽  
Ice Conditions ◽  
Legal Position ◽  
The Russian Federation ◽  
Broad Interpretation ◽  
Legal Grounds

The second part of the paper shows that the regime of navigation in the Arctic, particularly on the NSR, defended by Russia today, is much more liberal than that which existed in the Soviet years: up to the Gorbachev’s 1987 Murmansk speech the Soviet Arctic was a closed sea region for foreign navigation. Per-missive order of passage established today at the level of Russian national legislation applies only to civil ships, and in the framework of the 1982 Convention, measures to protect the marine environment from pollution from ships cannot be applied to warships, military auxiliary ships, and ships on the state non-commercial service. However, the presence on the Northern Sea routes of water areas with the status of internal historical waters, including several Arctic straits, plus the special legal status of the Arctic, which is not limited exclusively to the 1982 Convention, allows Russia to insist on the applicability of the permit regime also to foreign warships. This approach is based mainly on the two states’ practice with the longest coastline in the Arctic: the USSR and Canada. Navigation along the NSR in today’s ice conditions is not yet possible without passing through the waters of the Russian Arctic Straits, whose waters are classified by the USSR as internal on historical legal grounds. Although under the 1982 Convention, they can be conditionally regarded as international, the lack of permanent transit through them makes it possible not to recognize them as such. However, the Russian Federation’s task to turn the NSR into an international shipping route may lead to a weakening of the current legal position. A similar situation may arise concerning the enforcement of Article 234 “Ice Covered Areas” of the 1982 Convention, which gives the Arctic countries additional rights in the field of navigation control. Lack of ice cover in the Arctic during most of the year can significantly strengthen the position of Russia’s opponents, who insist on a too broad interpretation of this article on our part. Finally, climatic changes may lead to the NSR becoming more latitudinal, and then the Russian Federation will lose any legal grounds to regulate navigation.

scholarly journals Civil-legal institutions in tax law enforcement.

2017 ◽  
Vol 1 (3) ◽  
pp. 42-49
Author(s):  
Marina Karaseva (Sentsova)
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
The State ◽  
Constitutional Court ◽  
Legal Institutions ◽  
The Russian Federation ◽  
Property Losses ◽  
Civil Order

The subject. The enforcement of civil-legal institutions, such as liability for damage and unjustenrichment in tax disputes.The purpose of the paper is to identify how the civil-legal institutions may help in interpretationand enforcement of tax legal rules.The methodology. The methods of analysis and synthesis are used. The focus of the scientificanalysis concerns the decisions of the Constitutional Court of the Russian Federation,the Supreme Court of the Russian Federation and the courts of general jurisdiction.Results and scope of application. Damage (harm) caused to the state by tax arrears is fundamentallydifferent from the harm (damage) caused to the civil order, responsibility forwhich is provided by Art. 1064 of the Russian Civil Code. Concerning the damages to stateby tax arrears, these arrears don’t affect the initial assets of the state and couldn’t be reimbursedusing to the civil order (Art. 1064 of the Russian Civil Code).Concerning property deduction on personal income tax, it can't be equaled to tax (arrears)by using the legal fiction. Because the underestimation of the tax base for personal incometax leads to property losses of the budget, this situation is subject to the application of civillaw institutions.Conclusions. Today the law enforcement practice creates a situation of substitution of legalityby expediency. The essence of this situation is that, if it is not possible to solve a situationby using tax legal rules, the situations is solved by civil law, although the applicationof the civil law to these situations is not possible on the merits.

scholarly journals The Concept of Economic Activity in Contemporary Law of Russia

Lex Russica ◽  
2020 ◽  
Vol 73 (6) ◽  
pp. 61-67
Author(s):  
I. I. Shuvalov
Keyword(s):  
Law Enforcement ◽  
Economic Activity ◽  
Civil Law ◽  
Third Parties ◽  
Spiritual Needs ◽  
Economic Basis ◽  
Production Distribution ◽  
The Russian Federation ◽  
Russian Law ◽  
Definition Of

The paper is devoted to the study of the category “economic activity” used in modern Russian law. Theauthor notes that, despite the absence of a legal definition of this category, it is used in the current legislation of the Russian Federation (civil, criminal, administrative and other branches of legislation, including legislation regulating procedural issues). The legislative gap under consideration creates problems in law enforcement, which the judiciary draws attention to: the lack of definition of the concept under review makes it difficult to establish jurisdiction, since any activity of the participants of relations regulated under civil law has an economic basis. However, a number of documents contain a description of economic activity. In the doctrine, the category “economic activity” is mainly investigated by academic economists, lawyers pay little attention to the consideration of this concept. The few legal doctrinal statements and attempts made by the judiciary to define it are insufficient to fully understand economic activity in the context of law. The paper analyzes doctrinal and judicial approaches to the content and characteristics of economic activity, attempts to define the concept under consideration. The author considers that the concept "economic activity" refers to the commission of legal actions by the actors at various levels of management aimed at production, distribution, exchange and consumption of goods through the use of their or attracted skills and assets to meet their (or third parties) material and spiritual needs. At the same time, the characteristic of professionalism used in the doctrine should be used to differentiate economic activity carried out in active and passive forms. 

scholarly journals Intensification of Application of the Analogy of Law in Overcoming Civil Law Uncertainty

2021 ◽  
Vol 16 (8) ◽  
pp. 63-71
Author(s):  
V. A. Mikryukov
Keyword(s):  
Law Enforcement ◽  
Civil Law ◽  
Law Enforcement Officers ◽  
Direct Application ◽  
Legal Certainty ◽  
Economic Relations ◽  
Judicial Practice ◽  
Administration Of Justice ◽  
The Supreme Court ◽  
The Russian Federation

The purpose of the paper is to show how actively and effectively the mechanism of analogy of law is used in modern practice of applying civil legislation. Based on the analysis of judicial acts in specific cases, the author substantiates the conclusion concerning the regularity of the expansion of the application of the analogy of law in judicial practice. The importance of using this mechanism to ensure the absence of gaps in law is demonstrated not only for the administration of justice, but also for effective civil law regulation of the continuously developing economic relations of organizationally and property-separated enterprising participants (subjects). The author substantiates a new view on the correlation between the increase in the volume and detail of the normative material and the level of civil legal certainty and with the degree of demand for the analogy of law in the activities of law enforcement officers. It is proposed to keep selecting and examining specific examples of the use of the analogy of law in the resolution of civil disputes in order to provide generalizations and explanations of the practice of direct application of the principles of civil legislation at the level of the Plenum of the Supreme Court of the Russian Federation.

scholarly journals Interaction Between Civil Law and Criminal Law in the Protection of the Rights of Theft and Fraud Victims

2018 ◽  
Vol 12 (4) ◽  
pp. 572-582
Author(s):  
Liudmila Vasilevskaya ◽  
Ekaterina Poduzova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Law ◽  
Plenary Session ◽  
Civil Law ◽  
The Supreme Court ◽  
Single Sphere ◽  
The Russian Federation ◽  
Ambiguous Position ◽  
Court Practice

One of the trends in contemporary law is the interaction between its branches because an offense infringes upon a number of rights and interests of the victim that cannot be reduced to a single sphere of legally regulated relationships. This trend is reflected, specifically, in the interaction between civil and criminal law, which has attracted the attention of well-known Russian legal scholars many times. The trend is also observed in court practice, for example, in the Decree of the Plenary Session of the Supreme Court of the Russian Federation «On Court Practice Re. Cases of Fraud, Misappropriation and Embezzlement» of November 30, 2017, No 48. It is also manifested in the use of civil law categories and criteria for the general and specific components of crimes like theft (Art. 158 of CC of the RF) and fraud (Art. 159-159.6 of the CC of the RF), as well as in the use of vindication and compensation of losses to protect the rights of victims of such crimes. Civil law defense of the rights of victims of theft and fraud (the use of such methods of protection as vindication and compensation of losses) encounters the ambiguous position of courts because the doctrine incorporates disputable and unsettled issues regarding the methods of protecting rights. This paper analyzes such problems and presents some ways of solving them. Overcoming the theoretical and practical problems of interaction between civil and criminal law is of vital importance because it is a vital precondition for the efficient functioning of the law enforcement system as a whole when implementing various forms and methods of protecting the rights of people.

scholarly journals Problems of Legal Policy in the Sphere of Business

2017 ◽  
Vol 4 (4) ◽  
pp. 9-12
Author(s):  
S V Bochkarev
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Law ◽  
Business Environment ◽  
Law Enforcement Agencies ◽  
Legal Policy ◽  
Strategic Research ◽  
Special Procedure ◽  
The Russian Federation ◽  
The Way

For at least the last decade, the country’s authorities have paid particular attention to the creation of a comfortable business environment in the Russian Federation. A lot has been done on the way to a good goal. The changes have affected many branches of the law. At the same time, a number of problems on the way to creating a comfortable business environment remain relevant and acute. In particular, the validity of the findings of the Commissioner for the Rights of Entrepreneurs in Russia and the specialists of the Center for Strategic Research - the main moderators of the topic of pressure from law enforcement agencies on business - is questionable.The author analyzes the causes and root causes of the pressure of law enforcement agencies on business.It is recommended to develop and introduce into the criminal procedure a special procedure for consideration at the pre-trial stage of the issue of the possibility of transferring a criminal case in the sphere of business relations to the civil law plane.

«PROBLEMS OF INITIATING A CRIMINAL CASE UNDER АRT. АRT. 195, 196 OF THE CRIMINAL CODE ON THE EXAMPLE OF THE KRASNOYARSK TERRITORY»

2020 ◽  
Author(s):  
O.S. Yancer
Keyword(s):  
Law Enforcement ◽  
Scientific Literature ◽  
Criminal Code ◽  
Controversial Issues ◽  
Law Enforcement Agencies ◽  
Intelligence Gathering ◽  
Distinctive Features ◽  
The Russian Federation ◽  
Historical Comparative ◽  
Revolutionary Period

This article examines the controversial issues of the delimitation of criminal bankruptcies - crimes under following articles of the Criminal Code of the Russian Federation 195 "Wrongful actions under the procedure of bankruptcy", 196 "Deliberate bankruptcy" and 197 "Fictitious bankruptcy" - from the swindling (article 159), which is a form of theft. The issue of distinguishing crime bankruptcy from fraud is not new. It was analyzed by the pre-revolutionary and modern specialists in criminal law. However the problem is on the front burner. The purpose of the study: to develop and propose the main criteria that make it possible to distinguish between criminal bankruptcies and other related elements of crimes and, in particular, from fraud, to improve the fight against crimes committed in the field of insolvency (bankruptcy) institution. The objectives of the study: to analyze the main approaches to distinguishing between criminal bankruptcies and fraud that existed in the pre-revolutionary period and at present; to compare the objective and subjective features of the analyzed compounds with each other, highlighting the similar and distinctive features. Research methods: historical, comparative legal, system-structural, formal-logical and method of studying documents. The study was conducted on the basis of the results of criminal investigations by investigators of the investigating authorities in the Krasnoyarsk Territory from 1997 to the present, and an analysis of classical and modern scientific literature. In the author's opinion, an urgent adjustment of the commented norms of the sectoral legislation and a number of other (departmental) normative legal acts is able to stabilize the relevant legal relations and improve the effectiveness of the criminally-remedial and intelligence-gathering activities of the law enforcement agencies concerned.

scholarly journals The principle of good faith as a means of the development of law

2021 ◽  
pp. 60-75
Author(s):  
Radik Rashitovich Lugmanov
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Law ◽  
Good Faith ◽  
Constitutional Court ◽  
Special Role ◽  
Russian Science ◽  
Legal Provisions ◽  
The Russian Federation ◽  
Legal Uncertainty

The subject of this research is the principle of good faith in the Russian civil law, in versatility of its doctrinal understanding and complexity of substantive definition. The author describes the key approaches adopted in the Russian science, outlines certain flaws common to interpretation of this principle. It is noted that the usual interpretation of the principle of good faith, as a certain behavioral standard of the party to a contract, has no applicative avenue due to its natural meaninglessness and practical futility. Civil transaction requires predictability, certainty and stability, which is excluded without a uniform interpretation of the principle of good faith. Another subject of this research is the additional responsibilities that are directly related to the principle of good faith. The author indicated the problems of linear use of the formulas cited in law, since it also creates the grounds for legal uncertainty. The main conclusions are as follows: 1) Recognition of the special role of judicial system in revision, adaptation and development of the written law. This function of judiciary is implemented in the process of ordinary law enforcement under the auspices of referring to such general clauses as the principle of good faith. 2) Revision, development, or supplement of the law may cannot be done ad hoc. The court cannot introduce legal uncertainty into law enforcement. This requires special instruments in form of the strictly verifiable values, which would be the bases of law as a whole and civil law in particular. Such values are reflected in the Constitution of the Russian Federation and legal provisions of the Constitutional Court of the Russian Federation. Thus, the constitutionalization of private law is a natural process of translating socially significant values into the civil law by means of the principle of good faith.  

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