Institute for assurances and its implementation in the penal system in the framework of the Federal Law of 05.04.2013 No. 44-FZ “On contract system in procurement of goods, works, services for state and municipal needs”

2020 ◽  
pp. 162-170
Author(s):  
Екатерина Станиславовна Брылякова ◽  
Тамара Викторовна Шепель
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
Penal System ◽  
Federal Law ◽  
Law Enforcement Agencies ◽  
Legal Obligations ◽  
Legal Nature ◽  
The Russian Federation

Статья посвящена анализу нового института гражданского права «заверения об обстоятельствах», нашедшего легальное отражение в гражданском законодательстве РФ только после принятия Федерального закона РФ от 08.03.2015 № 42-ФЗ «О внесении изменений в часть первую Гражданского кодекса Российской Федерации». При этом с появлением данного института возникла полемика относительно его правовой природы и отнесения к институту преддоговорной ответственности как его разновидности или как одной из гарантий обязательственных правоотношений. Актуальность темы обусловлена еще и анализом возможности реализации института заверений об обстоятельствах в контексте Федерального закона от 05.04.2013 № 44 «О контрактной системе в сфере закупок товаров, работ, услуг для обеспечения государственных и муниципальных нужд» в части защиты интересов заказчиков и одного из элементов антикоррупционной составляющей. Ряд правоприменителей категорически не допускают возможности реализации исследуемого института в контрактной системе. Кроме того, в правоприменительной сфере возникает дискуссионный вопрос относительно интерпретации заверений об обстоятельствах и их применении в обязательственных правоотношениях. В статье предпринята попытка определить правовую природу института заверений об обстоятельствах и ответственности за недостоверные заверения, а также обосновать возможность его реализации в контрактной системе в сфере закупок товаров, работ и услуг для обеспечения государственных и муниципальных нужд, в том числе для нужд уголовно-исполнительной системы. This article is devoted to the analysis of a new institution of civil law “assurances of circumstances”, which was legally reflected in the civil legislation of the Russian Federation only after the adoption of the Federal law of the Russian Federation from 08.03.2015 № 42-FZ “On amendments to part one of the Civil code of the Russian Federation”. At the same time, with the appearance of this institution, there has been a lot of controversy regarding its legal nature and the attribution to the institution of pre-contractual liability as its variety or as one of the guarantees of legal obligations. The relevance of the topic due to the analysis of the feasibility of the Institute for assurances in the context of the Federal law of 05.04.2013 № 44 “On contract system in procurement of goods, works, services for state and municipal needs” in terms of protecting the interests of customers and one of the elements of the anti-corruption component. A number of law enforcement agencies categorically do not allow the possibility of implementing the research Institute in the contract system. In addition, in the law enforcement sphere, there is a debatable issue regarding the interpretation of assurances about circumstances and their application in legal relations of obligations. The article attempts to understand the concept and legal nature of the institution of assurances about circumstances and to justify the possibility of its implementation in the contract system in the field of procurement of goods, works and services for state and municipal needs, including for the needs of the penal system.

SUBORDINATION AGREEMENT IN THE SYSTEM OF PRIVATE LAW

2021 ◽  
Vol 21 (3) ◽  
pp. 7-107
Author(s):  
M.D. TYAZHBIN
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
Law Reform ◽  
Private Law ◽  
Legal Nature ◽  
The Russian Federation

The article is dedicated to the category of subordination agreements. Based on the concept of conflict of rights in personam, the author makes an attempt to integrate this category into the system of private law, to determine the legal nature of subordination, and from these positions to assess the effectiveness of Art. 309.1 of the Civil Code of the Russian Federation, implemented in the course of the civil law reform.

scholarly journals CONTRACTUAL BASIS FOR TERMINATION OF CIVIL LEGAL OBLIGATIONS: PROBLEMS OF THEORY AND PRACTICE OF APPLICATION

2021 ◽  
Vol 31 (6) ◽  
pp. 1054-1058
Author(s):  
N.V. Kuznetsova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Code ◽  
Theory And Practice ◽  
Freedom Of Contract ◽  
Judicial Practice ◽  
Legal Obligations ◽  
Problematic Issue ◽  
The Russian Federation

The article considers contractual grounds for termination of civil obligations: compensation, innovation, debt forgiveness. The paper notes some problems of the application of Articles 409, 414, 415 of the Civil Code of the Russian Federation in judicial practice, analyzes the issues of the ratio of compensation and innovation, the differentiation of these contracts. The problems of qualification of agreements on the grounds for termination of obligations in law enforcement practice and the question of applying the principle of freedom of contract to the relations under consideration are considered. It is noted that at present the practice of applying the legislation on compensation has changed significantly. Despite the restrictions established by the norm of Article 409 of the Civil Code of the Russian Federation, judicial practice allows the possibility of using works and services as a subject of compensation, which leads to problems of distinguishing such contractual grounds for termination of obligations as compensation and innovation. With regard to the innovation, an analysis of the provisions on the possibility of novating the penalty into a loan obligation is given. A problematic issue is the legal qualification of debt forgiveness as a basis for termination of an obligation. It is noted that the contractual nature of debt forgiveness should be taken into account. Acceptance of notification by the debtor's creditor of his release from the performance of his duty is the silence of the debtor (clause 2 of Article 438 of the Civil Code of the Russian Federation). The article also considers the question of the ratio of debt forgiveness and donation. The analysis of judicial practice shows that the courts do not consider debt forgiveness as a gift, except in cases when the creditor released the debtor from the performance of the obligation free of charge. In this case, the norms of Article 168 of the Civil Code of the Russian Federation and paragraph 4 of Article 575 of the Civil Code of the Russian Federation are subject to the application of debt forgiveness.

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 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.

Environmental activity of law enforcement agenciesenvironmental activity of law enforcement agencies

2021 ◽  
Author(s):  
A.S. Blankov ◽  
O. B. Vinogradova ◽  
Orlova Y. R. Orlova Y. R.
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Russian Federation ◽  
Natural Object ◽  
Law Enforcement Agencies ◽  
General Law ◽  
Legal Nature ◽  
The Russian Federation ◽  
The Law ◽  
Environmental Activity

The article defines the legal nature of the environmental protection activities of law enforcement agencies. The bodies carrying out activities for the protection of the environment within the framework of the implementation of the law enforcement function are systematized according to their own functionality into four groups: the general law enforcement bodies (internal affairs of the Russian Federation); the law enforcement agencies that resolve issues related to encroachment on public relations in relation to a specific natural object (specialized agencies); the bodies implementing control and supervisory activities in this area (prosecutorial bodies of Russia); and, finally, the judicial authorities.

Pro-competitive tariff regulation: experience and prospects

2018 ◽  
pp. 6-29
Author(s):  
A. N. Golomolzin
Keyword(s):  
Law Enforcement ◽  
Graduate Students ◽  
Russian Federation ◽  
State Regulation ◽  
Federal Law ◽  
Tariff Policy ◽  
Law Enforcement Agencies ◽  
The Russian Federation ◽  
Current Experience

The article discusses the history, current experience and prospects of tariff regulation in Russia, the initiative of the FAS of Russia to develop and implement the Strategy of a new tariff policy, the adoption of the Federal law «On the basis of state regulation of prices (tariffs)»,the tasks of the tariff regulator for the development of the economy, arising from the Decree of the President of the Russian Federation of December 21, 2017 № 618 and related problems of synergy of competencies, innovation of tariff policy 2015-2017, features and prospects of changes in the current models of tariff regulation of the main natural monopolies of the country.Addressed to researchers, teachers, graduate students and students of law and economic universities, legislator, law enforcement agencies specializing in the regulation of natural monopolies.

THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY: THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA

2021 ◽  
Vol 21 (2) ◽  
pp. 199-216
Author(s):  
Yu.V. BAYGUSHEVA
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Third Party ◽  
Tort Liability ◽  
Legal Nature ◽  
Heated Debate ◽  
The Russian Federation ◽  
The 19Th Century

The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.

scholarly journals On exemption from criminal liability for unlawful restriction of competition (the Article 178 of the Criminal Code of the Russian Federation)

2021 ◽  
pp. 1-13
Author(s):  
Ol'ga Evgen'evna Derevyagina
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Liability ◽  
Criminal Code ◽  
Federal Law ◽  
Law Enforcement Agencies ◽  
The Subject ◽  
The Russian Federation

The subject of this research is the notes to the Article 178 of the Criminal Code of the Russian Federation and the Article 14.32 of the Code of the Russian Federation on Administrative Offenses; foreign antimonopoly legislation on exemption and mitigation of liability for cartels; decisions of the plenums of higher judicial instances of the Russian Federation regarding the grounds and procedure for exemption from liability for cartel agreements; draft of the federal law on introducing amendments to the Article 178 of the Criminal Code of the Russian Federation and antimonopoly practice on cartels. The article aims to examine the grounds for exemption from criminal liability for cartel agreements, including in comparative-legal and interdisciplinary aspects. The novelty of this research consists in establishing extension of the grounds for exemption from liability in the Russian legislation to all cartel participants (unlike foreign legislation, according to which the cartel facilitator is not exempt from liability). This article is firs to provide interpretation to scantily studied questions of the procedure for realization of the conditions of exemption from criminal liability: the instance, when the cartel participant is still able to declare the restriction of competition to law enforcement agencies, and other measures of reparation of the inflicted damage. The author proposes a method for unification of the the grounds for exemption from liability stipulated by the Article 178 of the Criminal Code of the Russian Federation and the Article 14.32 of the Code of the Russian Federation on Administrative Offenses. The acquired results can be applied in the activity of law enforcement agencies.

scholarly journals Interpretation of certain aspects of criminal restriction of competition

2021 ◽  
pp. 48-58
Author(s):  
Ol'ga Evgen'evna Derevyagina
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Practical Implementation ◽  
Federal Law ◽  
Law Enforcement Agencies ◽  
Tax Legislation ◽  
The Subject ◽  
The Russian Federation

The subject of this research is the norms of antimonopoly legislation aimed at prevention and suppression of cartels, the norms of tax legislation that define the income and establish special tax regime for professional income, the norms of the Chapter 22 of the Criminal Code of the Russian Federation, the draft federal law on amendments to the Article 178 of the Criminal Code of the Russian Federation, and practical implementation of the Article 178 of the Criminal Code of the Russian Federation. The goal of this research is to examine the concept of income derived by the cartel; establish whether self-employed citizens can be the subject of an offence under this category, and clarify the criminal responsibility of the parties to the cartel agreement. The novelty consists in the fact that this article is first to examine the question of attributing the individuals conducting business activity under the special “Professional Income Tax” regime (self-employed citizens) to economic entities (i.e., parties to the cartel agreement). The effective legislation indicates that self-employed citizens do not belong to this group, as they are not state registered. A substantiation is made that a conscious neglect or an indifference to such socially dangerous consequence as income unfeasible: the cartel agreement is aimed at derivation of sizeable income. A consciously indifferent attitude is possible only towards such socially dangerous consequence as infliction of considerable damage. The field of application of acquired results is the activity of law enforcement agencies.

scholarly journals Types of easements and peculiarities of their implementation in the Russian and Vietnamese Law

2021 ◽  
pp. 43-60
Author(s):  
Thi Hoan Nguyen
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Code ◽  
Legal Analysis ◽  
Unified Approach ◽  
Real Right ◽  
Legal Nature ◽  
The Subject ◽  
The Russian Federation

The relevance of this article is substantiated by the absence of unified approach toward comprehension of the legal nature of public easement. Insufficient regulation of easement relations in civil legislation of the Russian Federation (easement is mentioned in just four articles of the Civil Code of the Russian Federation) entails the problems in law enforcement practice. One of such problems is the absence of universal classification of easements that would ensure unity of the mechanism for regulating easement relations, which affords grounds for amending the current Russian legislation. The attempt to systematize easements suggested by the real right reform is polemical and yet to be approved. The subject of this research on the basis of comparative legal analysis is the provisions of the types of easements and peculiarities of the implementation in the Russian and Vietnamese law. The novelty lies in carrying out a comprehensive comparative legal analysis of the types of easements in the Russian and Vietnamese law. The conclusion is made on the gap in the mechanism of regulation of easement relations in the Russian legislation. The need is substantiated for the systemic construction of easement norms in the Civil Code of the Russian Federation. The author makes recommendations for the improvement of the provisions on easement in the reform, and outlines the vector of development of this institution in the current legislation of Vietnam. The theoretical and practical value of this work gives an in-depth perspective on the civil law of the Russian Federation and Vietnam.

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