scholarly journals Identification and Consideration of the Child's Opinion in Parental Disputes about Children

2021 ◽  
Vol 2 ◽  
pp. 15-19
Author(s):  
Natalia A. Kozlova ◽  
◽  
Marina S. Trofimova ◽  
Keyword(s):  
Russian Federation ◽  
Judicial Practice ◽  
Rights Of The Child ◽  
Legal Relationship ◽  
The Supreme Court ◽  
The Family ◽  
Interviewing Children ◽  
The Russian Federation ◽  
Communicating With Children ◽  
Family Code

The question of the child’s age sufficient to take it into account in a family conflict continues to be debatable. To resolve it, the authors of the article analyze the norms of Russian and foreign legislation, the positions of the UN Committee on the Rights of the Child, the Supreme Court of the Russian Federation, representatives of legal science, as well as materials of judicial practice. The authors come to the conclusion that it is inexpedient to establish an age limit in the ability to take into account the child’s opinion in a controversial legal relationship. Emphasis must be placed on the actual level of physical and mental development of the minor. For this, it is proposed to use the available expert methods of interviewing children in order to identify their opinions, which are specially designed to overcome difficulties in communicating with children of different age categories. The article reveals the peculiarities of the implementation of measures for legal education in the field of informing minors about their rights, ways of protecting and restoring them. The authors insist on expanding the content of Article 57 of the Family Code of the Russian Federation, which regulates the content of the child’s right to express their opinion, and propose legislative innovations in the regulation of certain methods of protecting the rights and interests of children.

scholarly journals PROBLEMS OF THE COURT’S RE-QUALIFICATION OF A COMMERCIAL CONTRACT FROM ONE TYPE TO ANOTHER

2020 ◽  
pp. 153-160
Author(s):  
M. M. Darkina
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Relevant Article ◽  
Supply Contract ◽  
Judicial Practice ◽  
Legal Relationship ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Tax Payments ◽  
Relationship Of

The article discusses and analyses the procedure of reclassification of commercial contract from one view to another, identified the problems arising in judicial practice in the reclassification of the contract, defines the concept of commercial (trade) of the Treaty, the reasons for the conclusion of contracts with conditions that are not typical for statutory contracts and causes an intentional distortion of the parties to the contract in the terms and conditions in order to reduce the size of tax payments, and deliberate tradition of contract names, not under the civil code, such as "contract". The article analyzes the judicial practice of arbitration courts of the subjects of the Russian Federation on the problems of re-qualification of commercial contracts, namely, the re-qualification of a supply contract to a sales contract, an Agency contract to a delivery contract. Specifies the position of the Supreme Arbitration court of the Russian Federation in 2006, the problem of retraining one kind of contract to another, the position of the Supreme Court on this issue. And also examines on the application of the judicial authorities "recharacterization" of the Treaty stipulates norms of the procedural legislation (APC RF, CCP RF), on the order of proceedings in arbitration courts and courts of General jurisdiction are the relevant article (article 133 of the APC, article 148 GPK the Russian Federation) on the basis of which the court determines the legal relationship of the parties and the laws that apply to that established at the hearing circumstances.

scholarly journals Deprivation of parental rights through the prism of appeal

2018 ◽  
Vol 8 (4) ◽  
pp. 44-54
Author(s):  
N.V. Koval ◽  
A.N. Zenkin
Keyword(s):  
Russian Federation ◽  
Child Rearing ◽  
Legal Responsibility ◽  
Parental Rights ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Family ◽  
Lower Courts ◽  
The Russian Federation ◽  
Role Of Parents

The article raises the question of the application to parents of extreme measures of family legal responsibility-deprivation of parental rights. Turning to the constitutional status of the family in the Russian Federation, determining the policy of the state, the authors show the fundamental importance of the family and the role of parents in the upbringing of children. Arguing over the nature of their freedom to act in the performance of their child-rearing duties, the authors analyze the legislative prohibitions that restrict such freedom in cases where the latter begin to act contrary to the interests of the child. The purpose and the closed list of the bases for application of a punishment measure in the form of deprivation of parental rights (Art. 69 of the RF IC) is opened, it is specified on their detailed explanations by the Supreme Court of the Russian Federation. Familiarization with them shows the complexity and ambiguity in the assessment of the same circumstances that lead various courts to diametrically opposed decisions on the possibility of deprivation of parental rights. The analysis of the regional judicial practice allowed the authors to look at the problem through the eyes of the court of appeal, as well as to summarize and formulate the grounds that formed the basis of the appellate rulings that overturn the decisions of lower courts on the issue under consideration.

scholarly journals Recognition of Debt Obligations as Joint Obligations of Spouses: A Case Law Analysis

2020 ◽  
Vol 15 (12) ◽  
pp. 82-89
Author(s):  
E. N. Mazovka
Keyword(s):  
Russian Federation ◽  
Case Law ◽  
Judicial Practice ◽  
The Family ◽  
The Russian Federation ◽  
Family Code ◽  
Joint Property ◽  
Debt Obligation

The paper is devoted to the issues related to the recognition of a debt obligation issued in the name of one of the spouses during their marriage as a joint obligation of the spouses. The author’s study is based on the materials of the generalized case law showing the heterogeneity of the application of Para 2 of Art. 45 of the Family Code of the Russian Federation. The author critically analyzes the approaches developed by judicial practice when deciding the issue of recognition of the debt as joint. In particular, the author investigates acquisition at the expense of credit (borrowed) money of the joint property of the spouses. The author describes disadvantages of the extension by courts of the presumption of spouses’ joint property to debt obligations. It is substantiated that courts must take into account the evidence of obtaining the consent of the spouse and evidence of spending credit (borrowed) money for the needs of the family. The conclusion is made about the need to form legal mechanisms that promote uniform application of Para 2 of Article 45 of the Family Code of the Russian Federation.

scholarly journals Problems of Interpretation of Paragraph 2 of Article 35 of the Family Code of the Russian Federation in Russian Legal Science and Jurisprudence

Lex Russica ◽  
2020 ◽  
Vol 73 (3) ◽  
pp. 9-19
Author(s):  
A. A. Dobrovinskiy
Keyword(s):  
Russian Federation ◽  
Common Property ◽  
Legal Regulation ◽  
Property Relations ◽  
The Supreme Court ◽  
The Family ◽  
The Russian Federation ◽  
The Common ◽  
Relationship Of ◽  
Family Code

The paper analyzes the issues of interpretation and application of the presumption of spousal consent in transactions involving the common property of spouses. Presumption of spousal consent to carry out transactions with common property is considered in the context of its correlation with the principle of equality of spouses, including property relations. The paper deals with the jurisprudence on this issue, including the decisions of the Supreme Court of the Russian Federation. The author has determined practical problems in the field of application of this rule of law. The author comes to the conclusion that the legal regulation of the legal regime of property of spouses, in force at present, has a number of shortcomings that not only violate the rights of co-owners of the specified property, but also, in our view, are often contrary to the law. In particular, the current jurisprudence with regard to paragraph 1 of section 2 of Article 35 of the RF Family Code contradicts both the constitutional rule enshrined in Article 35 of the Constitution of the Russian Federation providing for the protection of the interests of the owner and the norms of the Family Code of the Russian Federation establishing the principle of equality of spouses in property relations (Articles 21, 31, 35). The paper gives reasonable proposals to improve the legislation. To this end, the author suggests the following wording for Paragraph 1 of Section 2 of Article 35 of the Family Code of the Russian Federation: “When one of the spouses carries out a transaction in the administration of the common property of the spouses, it is assumed that one spouse acts with the consent of the other spouse. This assumption applies exclusively to the legal relationship of spouses with third parties.”

Theft and Fraud Committed Using Electronic Payment Systems (Regional Judicial and Investigative Practice)

2020 ◽  
Vol 2 ◽  
pp. 66-79
Author(s):  
S. L. Morozov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Analysis ◽  
Payment Systems ◽  
Criminal Cases ◽  
Electronic Payments ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

The advent of the electronic currency and the effecting of electronic payments has caused new forms of thefts and types of acquisitive crimes. The judicial investigative practice of criminal cases of embezzlement committed using bank cards and other types of electronic payments has encountered problems with the qualification of such acts. The author identifies the most common enforcement problemsand their causesby a retrospective study of judicial practice, the changing norms of the criminal law. At the same time, a ten-year period of work of the judicial investigating authorities was studied. On the basis of traditional general scientific methods of cognition, as a result of a system-legal analysis of the considered set of specific situations, the author gives an author's view of the complex of causes that cause a lack of uniformity in judicial investigative practice. Using the hermeneutic approach, the author paid special attention to the application by the courts of the interpretation of the criminal law by the Plenum of the Supreme Court of the Russian Federation in different years. In conclusion, ways of resolving contentious issues of qualification of thefts and fraud in the field of electronic means of payment are proposed. It has been ascertained that high-quality and uniform law enforcement can provide additional clarification on the delimitation of related and competing theft from the Plenum of the Supreme Court of the Russian Federation. It is concluded that in general, the current concept of the Plenum of the Supreme Court of the Russian Federation does not contain contradictions with the novels of the criminal law, but can be improved. The rationale and edition of possible additions to the relevant decision of the Plenum of the Supreme Court of the Russian Federation are given.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

scholarly journals On Issue of Civil and Legal Liability of the Insolvency Officer for Actions (Inaction) of Third Parties in a Bankruptcy Case

2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Igor Staritsyn
Keyword(s):  
Russian Federation ◽  
Legal Liability ◽  
Third Parties ◽  
Bankruptcy Law ◽  
District Courts ◽  
Judicial Practice ◽  
Illegal Behavior ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

Considering the right of the insolvency officer to involve other persons, including employees of the debtor, to ensure his powers, the article examines the possibility of bringing the officer to civil and legal liability in the form of recovering damages for actions (inaction) of such persons. It summarizes and analyzes the judicial practice at the level of the Arbitration District Courts and the Judicial Panel on Economic Disputes of the Supreme Court of the Russian Federation. A conclusion is made of admissibility in certain cases of bringing the insolvency officer to civil and legal liability for the actions of the persons involved by him. The illegal behavior and the fault of the insolvency officer can be expressed in improper control over the actions (inactions) of third parties, in selecting an incompetent person. The article offers to regulate at the legislative level the issue of the possibility of bringing the insolvency officer to liability for actions of other persons, by including such rules in the Bankruptcy Law.

scholarly journals Legal Peculiarities of Child Custody of Minor Parents with an Incomplete Parental Status

2020 ◽  
Vol 6 ◽  
pp. 22-25
Author(s):  
Ekaterina E. Lekanova ◽  
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Legal Protection ◽  
Legal Regulation ◽  
Minor Parent ◽  
The Family ◽  
The Russian Federation ◽  
A Minor ◽  
The Guardian ◽  
Family Code

Despite the existence of an article in modern Russian legislation on the legal status of minor parents, many legal issues related to the implementation and protection of the rights, duties, interests of a minor parent and his child remained outside family legal regulation, which exacerbates the already difficult problem of legal protection of early parenthood. Moreover, the provisions of Article 62 of the Family Code of the Russian Federation are very inharmoniously combined with the rules of guardianship of minors. The aim of the work is to analyze the legislation on the legal status of minor parents and guardians, to identify the legal characteristics of the care of a child of minor parents. The author concludes that the features of the care of a child of minor parents, in addition to the age of one or both parents, in the case of the appointment of a guardian include: a combination of parenthood and guardianship; unequal opportunities for the care of a child by a minor parent who is not able to independently provide care, and by the legal representative of the child of the minor parent; special (additional) grounds for terminating guardianship of a child of minor parents; the need for the guardian to live together not only with the child in care, but also with his parent. The norms of paragraph 2 of article 62 of the Family Code of the Russian Federation and paragraph 2 of article 29 of the Federal law «On Guardianship and Custodianship» should be adjusted. It is proposed to introduce special rules for the selection of the guardian of a child of a minor parent, which would properly ensure the right of the minor parent to live together with the child.

scholarly journals The use of digital communication technologies in the context of a pandemic as a way to improve the effectiveness of justice

2021 ◽  
Vol 7 (1) ◽  
pp. 95-101
Author(s):  
E. V. Smakhtin
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Information Technologies ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Russian Federation

The article deals with the peculiarities of the activity of courts in making judicial decisions in the context of a pandemic. First of all, we are talking about the wider use of digital and information technologies in criminal proceedings, which have previously been repeatedly recommended by forensic science for implementation in judicial practice. Some recommendations of criminalistics are currently accepted by the Presidium of the Supreme Court of the Russian Federation in its Decision dated April 08, 2020 № 821 and Review on certain issues of judicial practice related to the application of legislation and measures to counteract the spread of a new coronavirus infection (COVID-19) in the territory of the Russian Federation № 2, which provided appropriate explanations for their use in practice. In particular, we are talking about the possibility of using video conferencing systems for certain categories of criminal cases and materials that are considered urgent, although this is not provided for in criminal procedure legislation. It is concluded that it is necessary to change the current criminal procedure legislation, bring it into line with the Constitution of the Russian Federation, federal constitutional laws, federal laws and subordinate regulatory legal acts, including orders of the Judicial Department under the Supreme Court of the Russian Federation.

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