LEGAL FICTION: METHODS OF APPLICATION IN THE CIVIL LAW OF THE RUSSIAN FEDERATION

2021 ◽  
pp. 121-130
Author(s):  
Anastasiia Artemova
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Civil Law ◽  
Legal Regime ◽  
Legal Entity ◽  
Legal Fiction ◽  
The Russian Federation ◽  
Legal Uncertainty ◽  
Methods Of Application

The article examines the essence of legal fiction. Based on an analysis of the current legislation of the Russian Federation, the author has established ways of using legal fiction in civil law. It has been substantiated that legal fiction finds expression in the construction of a legal entity and the institution of fictitious transactions. Legal fiction is used to extend the legal regime of one object to another object, as well as the legal status of one subject to another subject. Legal fiction is used when it is necessary to overcome a situation of legal uncertainty, to recognize as real non-existent circumstances to restore the violated rights of persons who have suffered as a result of the actions of unscrupulous participants in civil-law transactions. Finally, the method of legal fiction is widely used by the legislator the legal economy. As a result of the study, a conclusion was made about the importance of legal fiction for the process of lawmaking.

scholarly journals On the Issue of a Public Corporation as a Form of a Non-Profit Organization

2021 ◽  
Vol 2 ◽  
pp. 3-5
Author(s):  
Natalia G. Kanunnikova ◽  
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Civil Law ◽  
Federal Law ◽  
Legal Regime ◽  
Non Profit ◽  
Russian State ◽  
Public Corporation ◽  
State Corporation ◽  
The Russian Federation

The article offers the author’s vision of such a form of non-profit organization as a state corporation with a special legal status. As a result of the analysis, the author comes to the conclusion that it is permissible to recognize a state corporation as an independent subject of civil law relations, since state corporations combine the characteristics of both a legal entity, in particular, the autonomy of property, independent liability for obligations, etc., and the institution of the state, endowed with authority. The analysis of the federal legislation allowed the author to say that a special legal regime applies to modern Russian state-owned corporations, which provides for their exemption from certain duties and granting certain rights and powers. In this regard, the question is raised about the development of recommendations for improving legislation in the field under study by excluding Article 7.1 from the Federal Law, January, 12 № 7-FZ “On Non-Profit Organizations”, and introducing its content into the Civil Code of the Russian Federation, adding it to Article 124.1 “State Corporation”.

scholarly journals THE PROBLEM OF DETERMINING THE LEGAL REGIME OF “DISPUTED” REAL ESTATE: THEORETICAL AND PRACTICAL ASPECTS

2021 ◽  
pp. 19-24
Author(s):  
N.A. Pronina ◽  
T.N. Platunova ◽  
S.O. Kostyakova
Keyword(s):  
Real Estate ◽  
Russian Federation ◽  
Civil Law ◽  
Property Right ◽  
Legal Regime ◽  
Land Plot ◽  
Legal Definition ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article raises the following topical problems currently inherent in the institution of real estate in theRussian Federation: the unsuccessful legal definition of a real estate object, enshrined in Art. 131 of the CivilCode of the Russian Federation; qualification of objects as immovable and, accordingly, delimitation of themfrom movable ones; the emergence of objects with a controversial legal regime; the need to move from themodel of “plurality” to the model of “unity” of real estate objects. Also, the authors of this article analyzea number of approaches aimed at resolving the above problems and the possible consequences (both positiveand negative) of their implementation in practice, put forward their views and offer their own solutionto these problems. A variant of the legalization of “disputable” objects is proposed by introducing the rightof construction into the civil law of the Russian Federation as a limited property right to use a land plot withthe extension of this right to everything that is being built on such a land plot. The examples of legislativeregulation of the right to build in the civil law of pre-revolutionary Russia are considered, the elements of theright to build in the current law of the Russian Federation are revealed.

scholarly journals LEGAL ENTITIES AS THE MAIN PARTICIPANTS IN BUSINESS ACTIVITY IN RUSSIA AND CHINA

2019 ◽  
Vol 6 (4) ◽  
pp. 134-158
Author(s):  
O. Berzin ◽  
E. Shliagina
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
People’S Republic Of China ◽  
Business Activity ◽  
People's Republic Of China ◽  
Legal Entity ◽  
Republic Of China ◽  
The Russian Federation ◽  
The Law ◽  
Legal Entities

The legal entity is one of the most common forms of business activity in the Russian Federation and the People’s Republic of China. The regulation of legal entities in Russia and China has changed in recent years, which makes the study of this issue especially relevant. This article explores and compares the concept of business activity, the system of legal entities and several types of particular legal entities in regard to companies found in Russia and China. The research concludes that the system of legal entities in the Russian Federation has an exhaustive regulation that facilitates the interpretation of the civil legislation and allows distinguishing the relevant characteristics of any type of organization. In China, there was no unified system of legal entities until 2017. While the General Provisions of the Civil Law of the People’s Republic of China adopted in 2017 is a serious and important attempt to establish a system of legal entities, the law does not contain the essential characteristics of legal entities; additionally, a number of the provisions of the legal acts in force devoted to the regulation of the activities of legal entities have not yet been brought in line with the new law.

scholarly journals HEREDITARY FUND - NEW CATEGORY IN THE CIVIL LEGISLATION OF THE RUSSIAN FEDERATION

2017 ◽  
Vol 21 (6) ◽  
pp. 195-200
Author(s):  
Y. A. Tarasov ◽  
G. S. Ignatenko ◽  
N. A. Gulyaev ◽  
D. V. Tertichnikov
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
Property Management ◽  
Fund Management ◽  
Legal Entity ◽  
The Will ◽  
The Russian Federation ◽  
The Moment

New category in the Russian civil law (hereditary fund) is described in the article. Hereditary fund represents Russian analog of widespread institute of trust in Europe. Norms regulating activity of hereditary funds will be active from 09.01.2018. Hereditary fund is created by the Civil Code of the Russian Federation to will citizen. On the basis of his property the fund which is carrying out activities for property management receives inheritance. It can be termless or during a certain term. Only one person can create hereditary fund. Hereditary fund is created after the death of the citizen according to his will. To create hereditary fund it is necessary to have the will of the citizen which contains decision on hereditary fund creation. It is also necessary to have fund charter and fund management. The application for hereditary fund creation is submitted by the notary within 3 days from the moment of hereditary opening. As legal entity hereditary fund has isolated property which is formed by provided law. The property from fund is transferred to persons who are named in the decision on hereditary fund establishment or separate categories from an uncertain circle of people defined according to fund charter. The structure of hereditary fund bodies or an order of their formation is also defined by the testator. Despite introduction of a new design to the Russian civil law there are reasonable doubts whether hereditary funds will become popular in Russia or not. It is connected with a number of gaps which are in adopted law.

scholarly journals Constitutional Court’s of the Russian Federation Impact on Public Property (Part 1)

2021 ◽  
pp. 128-144
Author(s):  
S. I. Shulzhenko
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Housing Stock ◽  
Constitutional Court ◽  
Legal Regime ◽  
Public Property ◽  
Public Rights ◽  
Commercial Housing ◽  
The Russian Federation ◽  
Enforcement Activity

The article focuses on the main principles of public property as Constitutional Court of the Russian Federation formulates them. The author reveals actual problems of public property as a complex institution, including mainly constitutional, administrative, financial, and in a less degree civil law. There is a direct relation between public property, public finance, budget, legal regime of the territory concerned and citizens’ public rights. Establishment of a legal regime of the territory helps to preserve current public land and property usage and provides public rights. The ability of public property unilateral transfer to another level of public ownership is justified. Meantime in the context of specialized public housing stock problem the author suggests sensitive decision for the legal status of quarters as a specialized commercial housing stock. Legal positions of the Constitutional Court promote effective solution to the conflict within the community and provide guidance for the legislative and law-enforcement activity.

Local Self-Government Powers to Establish the Target Purpose of Lands and Their Permitted Use: Analysis of Theoretical Problems

2021 ◽  
pp. 272-276
Author(s):  
Liliya K. Fazlieva ◽  
Keyword(s):  
Land Use ◽  
Urban Planning ◽  
Research Methods ◽  
Russian Federation ◽  
Rural Settlements ◽  
Legal Regime ◽  
Territorial Planning ◽  
Intended Purpose ◽  
The Russian Federation ◽  
Legal Uncertainty

The study aims to determine the powers of local authorities in defining the legal regime of lands and to study problems in this area. Legal uncertainty in the relationship between territorial planning and urban planning zoning, the inconsistency of the three basic federal laws regarding the powers of urban and rural settlements to establish land use and development rules have been revealed. The impossibility of replacing urban planning zoning with a territorial one is argued. The research methods are the dialectical method of cognition, general methods of formal logic, certain general research methods (systems aspect, analysis of regulatory legal sources), and specific methods of law (formal-logical method of interpretation of law, comparative legal method). Based on the study, the following conclusions are made. (1) There is still legal uncertainty on the issue of zoning, which is contained in documents of different legal force – results of territorial planning and urban planning zoning: the site plan, which is equal in the status to a regulatory legal act and rules of land use and development. At the same time, the text of the site plan does not meet the requirements of legal technology in contrast to rules of land use and development. To eliminate internal contradictions in the legislation, it is proposed to fix the correlation of the site plan and the rules of land use and development in a codified urban planning law, and to establish requirements for the development of the site plan. (2) Urban planning and land codified laws do not distinguish between the powers of urban and rural settlements in the field of approving land use and development rules (Part 3 of Article 8 of the Town Planning Code of the Russian Federation, Paragraph 1 of Article 39.30 of the Land Code of the Russian Federation). Moreover, the approval of land use and development rules was removed from the rural settlement’s issues of local importance and transferred to the municipal areas (Part 4 of Article 14 of Law No. 131-FZ). Consequently, the different interpretation of the categorical elements of issues of local importance leads to an ambiguous understanding of municipal rights and obligations. The author considers it necessary to bring the norms regarding the powers of local self-government contained in the industry laws in line with the norms of Law No. 131-FZ. (3) In order to improve the state policy on the use of the land fund of Russia, it is planned to replace urban planning zoning with territorial zoning, which involves the removal from circulation of the principle of dividing land for its intended purpose. It has been established that territorial zoning performs only the functions of detailing and concretizing the legal regime of the corresponding land plot. In this regard, the principle of dividing land into categories for the intended purpose should be considered as the main principle of legal regulation of land relations arising from the provisions of Article 9 of the Constitution of the Russian Federation.

scholarly journals Problems of Determining the Guilt of Legal Entities in Administrative Law

2021 ◽  
Vol 7 (5) ◽  
pp. 413-417
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Administrative Law ◽  
Civil Code ◽  
Legal Entity ◽  
Central Focus ◽  
Legal Science ◽  
The Russian Federation ◽  
Definition Of ◽  
Legal Entities

The problem of determining the guilt of a legal entity for an administrative offense is currently very relevant in legal science. This problem is the central focus of this work. However, in order to fully disclose the problem of determining the guilt of legal entities, the article highlights the problems that are associated with the concept of a legal entity and its essence. The presented paper lists the approaches to determining the essence of a legal entity. The concept of a legal entity in accordance with the Civil Code of the Russian Federation is given. The article analyzes the concept of a legal entity under civil law with the concept of an organization, which is defined in the science of sociology. This article gives the concept of a collective subject. And also, the correlation of the concept of a collective subject and the concept of a legal entity is considered. Further, the article identifies three main approaches to determining the guilt of legal entities in administrative law: subjective, objective and complex, and also expresses the opinion of the authors of the article about the approaches under consideration. The paper presents the author’s conclusions and possible solutions to problems related to the concept of a legal entity and the definition of the legal entity’s guilt in administrative law for administrative offenses.

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.  

scholarly journals CLASSIFICATIONS OF LEGAL COMMUNICATION IN RUSSIAN CIVIL LAW

2020 ◽  
Vol 16 (3) ◽  
pp. 54-63
Author(s):  
Владимир Куранов
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Civil Law ◽  
Business Communication ◽  
Civil Code ◽  
Essential Condition ◽  
Legal Implications ◽  
Legal Communication ◽  
The Russian Federation ◽  
Communication Methods

Business communication is an essential condition for successful functioning of the civil turnover. In 2013, for assigning a legal effect to business communication, the legislator introduced a new norm - Article 165.1 of the Russian Federation Civil Code that covers legal communication. Despite the fact that this legislative innovation has been existing for almost seven years, despite the accumulated volume of judicial and arbitration practice of applying this rule, and despite the scientific research interest in this problem, the civil law science does not have a full-fledged theory of legal communication, including its concept, features, place in the system of legal facts, and other aspects. The purpose is to classify by various criteria the legal communication whose legal status is provisioned by the rule of Article 165.1 of the Russian Federation Civil Code, for solving a task meaningful for the Russian civil law development - i.e. the task of constructing the civil theory of legal communication. Methods: the basis of the research is the dialectical materialistic method of obtaining awareness of public phenomena and processes that conditions the study of legal communication in dynamics and in conjunction with other legal phenomena. Other universal methods including analysis, synthesis, induction and deduction, comparison, grouping are applied. Results: the author proposes innovative classifications of legal communication; with the classification criteria including the form, the conduct of the addressee of the message, the number of the addressees, the nature of legal implications, the source, and the sphere of application.

scholarly journals One Real Estate Complex: Concept and Prospects of Law

2020 ◽  
Vol 15 (3) ◽  
pp. 124-140
Author(s):  
ALEXANDR A. VEDENIN
Keyword(s):  
Civil Rights ◽  
Real Estate ◽  
Russian Federation ◽  
Legal Status ◽  
Civil Law ◽  
Civil Code ◽  
Legal Concept ◽  
The Russian Federation ◽  
Legal Concepts ◽  
Property Complex

One of the most important and discussed topics of Russian civilization is the issue of objects of civil law. The topic under study is not adequately reflected in domestic civil law and judicial arbitration practice. According to legal scholars, the ongoing changes in domestic civil legislation have not eliminated problems that relate to objects of civil law. The constant complication of civil law turnover and the development of domestic science of civil law are forced to carry out targeted work in this direction. The domestic legislator initiates the necessary new norms of civil law. As a result, this entails, among other things, the emergence of new objects of civil law. The expediency of expanding the list of objects of civil law requires a rethinking of existing legal concepts and work on serious theoretical and practical justification of new ones. In legal science and practice, the need to include the legal concept of "single immovable complex" in the current civil legislation of the Russian Federation is proved Legal scholars have formed various opinions that characterize it. Domestic civilizations have identified and analyzed the theoretical and practical shortcomings of a single immovable complex. A comparative legal study of a single real estate complex, an enterprise as a property complex, a complex thing was carried out and it is confirmed that they are not identical. Obviously, a single immovable complex is a necessary and relevant legal concept of domestic scientific thought. In order to create a single real estate complex, some conditions are needed. The rights holder of movable and immovable property by his will decides to create it. The permitting authorities, through State registration, decide to establish. Disadvantages of a single immovable complex, both theoretical and practical, are indicated. Similarities and differences in the design of the enterprise as a property complex, a complex thing, and a single real estate complex made it possible to identify the features of the legal status of the latter and distinguish it as an independent object of civil rights. Despite the fact that in the Civil Code of the Russian Federation there are such legal concepts as "enterprise as a property complex" and "complex thing," the inclusion of a single real estate complex in the current civil legislation is necessary. The legal significance of this concept is unconditional. It justifies its own point of view on the problem and the place of a single immovable complex in the system of objects of civil law. Recognizing the need for the concept of "single immovable complex" in the current civil legislation of the Russian Federation, the domestic legislator should focus on its significant theoretical and practical shortcomings that impede the effective enforcement of the provisions of Art. 1331 of the Civil Code of the Russian Federation. Domestic legislators need to give them an appropriate legal assessment, as well as suggest effective ways to solve them.

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