scholarly journals The peculiarities of exclusion of property necessary for professional activity of an insolvent individual from the bankruptcy estate

2021 ◽  
pp. 50-62
Author(s):  
Viktor Aleksandrovich Sharonov
Keyword(s):  
Russian Federation ◽  
Case Law ◽  
Professional Activity ◽  
Bankruptcy Law ◽  
Legal Norms ◽  
Procedure Code ◽  
The Supreme Court ◽  
Bankruptcy Procedure ◽  
The Subject ◽  
The Russian Federation

The subject of this research is the legal norms on the procedure for excluding the property necessary for debtor’s professional activity from the bankruptcy estate. The article covers the question on the possibility of excluding property necessary for the debtor to conduct professional activity, the value of which is 10,000 rubles or higher, from the bankruptcy estate. The goal of this works consists in consideration of a broader interpretation of provisions of the Paragraph 5 of the Part 1 of the Article 446 of the Civil Procedure Code of the Russian Federation jointly with clarifications of the Paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 25, 2018 No. 48 “On Certain Questions related to the Peculiarities of Formation and Distribution of the Bankruptcy Estate in Cases of Bankruptcy of Citizens” applicable to property of the debtor within the framework of insolvency (bankruptcy) procedure. The author analyzes the relevant civil legislation and insolvency (bankruptcy) law, as well as case law on topic. This article is one of the first attempts to systematize the relevant case law on the subject of exclusion of property necessary for debtor to conduct professional activity from the bankruptcy estate. Based on the results of analysis of the case law, national civil legislation and insolvency (bankruptcy)l law, the conclusion is made on impossibility of exclusion of property used by the debtor for professional activity, the value of which exceeds 10,000 rubles, from the bankruptcy estate in view of the failure of the economic model used by the citizen to ensure a normal life. The author questions the need to extend executive privilege onto the debtor’s property, which is required to conduct professional activity under the insolvency (bankruptcy) law.

PARTICULAR FEATURES OF APPEAL AND VERIFICATION OF JUDGMENTS IN CASSATION ORDER, GIVEN IN FURTHERANCE OF SENTENCE

2021 ◽  
pp. 74-83
Author(s):  
Анастасия Анатольевна Рукавишникова
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Norms ◽  
Procedural Law ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Subject ◽  
The Russian Federation ◽  
Court Of Appeal

На основании изучения норм закона, разъяснений Пленума Верховного суда РФ, правоприменительной практики и сущности современного порядка проверки в суде кассационной инстанции промежуточных судебных решений формулируется вывод о существовании системы процессуальных особенностей обжалования и проверки судебных решений, вынесенных в порядке исполнения приговора, проводится их систематизация и анализ. На основе систематизации выделены следующие особенности применения норм гл. 47.1 УПК РФ при обжаловании и проверке судебных решений: способы проверки решений, основания проверки и виды решений, выносимых по итогам такой проверки. Делается вывод, что обоснованность не должна выступать самостоятельным основанием проверки таких решений, но может быть проверена как последствие нарушения требований ч. 4 ст. 7 УПК РФ. Решения, выносимые судом кассационной инстанции при проверке таких решений, должны зависеть от вида допущенной ошибки и от того, было ли данное решение предметом проверки суда апелляционной инстанции. Существенные ошибки в применении уголовного закона должны выявляться и устраняться самим судом кассационной инстанции путем внесения изменений в состоявшиеся решения. Существенные ошибки в применении процессуального закона, повлиявшие на ничтожность процессуальной формы при рассмотрении вопросов, связанных с исполнением приговора, могут быть только выявлены судом кассационной инстанции, но исправляться должны судом первой или апелляционной инстанции (где они допущены), что обеспечивает соблюдение требования ч. 3 ст. 8 УПК РФ. Суд кассационной инстанции должен принять решение о возвращении материалов в соответствующий суд. При выявлении нарушения требования ч. 4 ст. 7 УПК РФ решение отменяется, а материалы направляются в суд той инстанции, который допустил выявленное нарушение. Аргументируется, что в целях обеспечения правовой определенности применения судами процессуального законодательства, процессуальные особенности применения гл. 47.1 УПК РФ, выявленные применительно к проверке изучаемой категории решений, нуждаются в разъяснении на уровне Постановления Пленума ВС РФ. Based on legal norms research, resolutions of Plenum of the Supreme Court of the Russian Federation, law enforcement practice and essence of modern order of verification in cassation court of intermediate judgments, it is formulated a conclusion on existence of the system of procedural particularities of appeal and verification of judgments, given in furtherance of the execution of sentence, it is made its systematization and analysis. Based on systematization it was pointed out following particular features of the application of norms of article 47.1 of the Criminal Procedure Code of the Russian Federation in case of appeal and verification of judgments: methods of verification of judgments, grounds for verification and types of judgments, made on the results of this verification. It is made a conclusion that justification should not be a separate grounding for verification of such judgments, but it can be verified as consequence of violation of requirements of part 4 of the article 7 of the Criminal Procedure Code of the Russian Federation. Decisions of the cassation courts in case of verification of these decisions should be dependent on the type of committed error and on the judgment which was the subject of this verification by the cassation court. Substantial errors in application of criminal law should be determined and eliminated by cassation court itself by modification of existed judgments. Substantial errors in application of procedural law, which influenced on nihility of procedural form of reviewing questions related to execution of sentence, can be revealed by the cassation court, but they should be eliminated by the general court jurisdiction or by the court of appeal (where these errors were made), it provides compliance with requirements of part 3 of the article 8 of the Criminal Procedure Code of the Russian Federation. Cassation court should make a decision to return case materials to corresponding court. When revealing violation of requirements of part 4 of article 7 of the Criminal Procedure Code the judgment of the court is canceled, case materials are remitted to that court, where this violation was detected. In this article the author gives reasons that in case of providing legal certainty to apply procedural legislation by the courts, discovered procedural particularities of application the chapter 47.1 of the Criminal Procedure Code of the Russian Federation relating to verification of considering category are required to be explained by the Resolutions of Plenum of the Supreme Court of the Russian Federation.

scholarly journals Status of the prosecutor in the arbitration proceedings

2020 ◽  
pp. 74-83
Author(s):  
Artem Aleksandrovich Kovalev
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Case Law ◽  
Procedure Code ◽  
Analysis And Synthesis ◽  
Arbitration Procedure ◽  
The Subject ◽  
The Russian Federation ◽  
Improvement Of Legislation

The object of this research is the questions of determination of legal status of the prosecutor participating in arbitration proceedings, and problematic aspects pertaining to exercise of his powers in reference to arbitration with a claim, as well as entering the proceedings in accordance with Part 5 of the Article 52 of the Arbitration Procedure Code of the Russian Federation. The subject of this research is the materials of prosecutorial law enforcement practice and case law, as well as the norms of arbitration procedure and civil procedure legislation. The following methods were applied in the course of this work: formal-logical, comparative analysis, comparison, analysis and synthesis, systemic and structural analysis for the purpose of studying separate elements of the legal status of the prosecutor. The author conducted a comprehensive research of the legal status of the prosecutor who participates in arbitration proceedings. A conclusion is drawn that the prosecutor’s status can be defined as a government representative in his participation in the proceeding upon the initiative, or in entering the proceedings in accordance with Part 5 of the Article 52 of the Arbitration Procedure Code of the Russian Federation. In order to determine the legal status of the prosecutor, the author analyzed the powers assigned by the Arbitration Procedure Code of the Russian Federation, as well as describes separated aspects that ate not regulated by the Arbitration Procedure Code of the Russian Federation. Recommendations are given on the improvement of legislation that establishes the mechanism of exercising powers of the prosecutor in the arbitration proceedings.

To the Matter of Procedural and Legal Problems of Detaining a Person on Suspicion of Committing a Crime

2021 ◽  
Author(s):  
E.V. Bolshakov ◽  
◽  
I.D. Nazarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
The Moment

The subject of the research within the framework of the article is the criminal procedure institute for the detention of a person on suspicion of committing a crime. The legal nature of this institution is analyzed, and comments are given on the normative legal acts and judicial practice regulating the issues of detention. The theoretical basis of the research is based on the publications of the last two decades on this problem, in particular, reflecting the discussion of the process scientists S. A. Shafer, S. B. Rossinsky and A. A. Tarasov, the subject of which was the issue of the legal nature of a suspect detention in a criminal case. In the paper, the authors ask the following questions: What is the detention of a person on suspicion of committing a crime in accordance with the legislation of the Russian Federation? From what moment does the detained person acquire the status of a suspect? Is it possible to detain a person before initiating a criminal case? The study concludes that a person acquires the actual status of a suspect from the moment of direct detention, that is, before documenting this status and, as a result, before initiating a criminal case. Amendments to the articles of the Criminal Procedure Code of the Russian Federation are proposed, and the authors` versions of the definitions of the concepts «detention of a suspect», «the moment of actual detention» and «pre-trial proceedings» are given.

scholarly journals Search in Criminal Procedure of Russia and Germany: Comparative Legal Characteristics

2018 ◽  
Vol 50 ◽  
pp. 01159
Author(s):  
Anton Shamne
Keyword(s):  
Comparative Analysis ◽  
Federal Republic ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Federal Republic Of Germany ◽  
Procedure Code ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
Similarities And Differences

The article compares the Criminal Procedural Codes provisions of the Russian Federation and the Federal Republic of Germany that regulate conducting a search as an investigative act. It also provides and compares the definitions of the concept “search” and “dwelling” given in Russian and German criminal procedural legislation. The reasons for conducting the search in general and the search of dwelling are considered, similarities and differences are revealed in relation to the status of the subject who is under the search. The author characterizes the search of dwelling and gives a comparative analysis of this investigative action as well as the notion of “urgent cases” in both countries. The authors also proposed some brief recommendations for improving the norms of the Russian Federation Criminal Procedure Code.

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 Genesis of establishment and development of the judicial system of the Russian Federation in the late XX – early XXI centuries: institutional and normative characteristics

2021 ◽  
pp. 26-36
Author(s):  
Valentina Mikhailovna Bol'shakova
Keyword(s):  
Soviet Union ◽  
Russian Federation ◽  
Federal Courts ◽  
Judicial System ◽  
Constitutional Court ◽  
The Soviet Union ◽  
The Supreme Court ◽  
Judicial Proceedings ◽  
The Subject ◽  
The Russian Federation

The subject of this research is the evolution of the structure of judicial system of the Russian Federation in the late XX – early XXI centuries. Description is given to the changes undergone by the Russian judicial system after dissolution of the Soviet Union. The author follows the dynamics of the normative legal changes that regulate judicial proceedings, as well as reveals the institutional framework of the modern structure of judicial system of the Russian Federation. The article illustrates the institutional and normative changes within the structure of judicial system of the Russian Federation in the late XX – early XXI centuries based on application of the comparative-legal and systemic methods of research. The novelty and the main conclusions lie in the following: it is established that the Russian Federation has issued the normative legal acts that contribute to the strengthening and unification of the Russian judicial system, uniformity of social guarantees and compensations set for judges. Currently, the judicial system of the Russian Federation is founded on the principle of combining administrative-territorial and district organization. It is determined that the judicial system of the Russian Federation consists of 1) the Constitutional Court of the Russian Federation; 2) the Supreme Court of the Russian Federation; 3) federal courts of general jurisdiction; 4) arbitration courts; 5) magistrates’ courts of the constituent entities of the Russian Federation. It is noted that since January 1, 2023, the Constitutional (statutory) courts of the constituent entities of the Russian Federation will be abolished.

scholarly journals Legality and Validity of Property Seizure in the Investigation of a Criminal Case

Lex Russica ◽  
2021 ◽  
pp. 118-126
Author(s):  
O. A. Malysheva
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Constitutional Court ◽  
Legal Institution ◽  
Procedure Code ◽  
First Case ◽  
The Supreme Court ◽  
Civil Lawsuits ◽  
The Russian Federation

The importance of the measure of procedural coercion in the form of seizure of property increases against the background of the high amount of damage caused by crimes, namely about 550 billion rubles annually. This measure of procedural coercion has a high security potential in order not only to satisfy claims in civil lawsuits, but also to recover a fine and other property claims provided for in Part 1 of Article 115 of the Criminal Procedure Code of the Russian Federation. Investigators (interrogators) annually initiate the seizure of property about 40 thousand times. 90% of cases are a success. The application of this measure is accompanied by the restriction of the property rights of both natural and legal persons, including those who are not recognized as a civil defendant in a criminal case, in the first case, and the accused (suspect).The seizure of property in criminal procedure practice is accompanied by the need for the investigator to overcome a number of difficulties, which are caused, firstly, by the intersectoral nature of the regulation of this legal institution; secondly, by the presence of gaps in the regulation of relations arising in connection with the imposition of this arrest; thirdly, by the inconsistency of the objectives of proof to establish the nature and amount of damage caused by a crime and the implementation of security activities in a criminal case. This gives rise to numerous violations of the legality and validity of the seizure of property on the part of not only the investigator, but also the court, despite the expression of a number of positions of the ECHR on this issue, despite the explanations of the Constitutional Court and the Supreme Court of the Russian Federation.The author concludes that without the release of the investigator as a subject of proof in a criminal case from performing an unusual function — providing compensation for property penalties in a criminal case — it is impossible to achieve the full legality and validity of the seizure of property.

WITH REGARD TO THE QUESTION OF COMPLIANCE WITH THE PRINCIPLE OF LEGALITY IN ESTABLISHING ADMINISTRATIVE LIABILITY FOR FAILURE TO IMPLEMENT DECISIONS OF THE RUSSIAN FEDERATION’S COUNTER-TERRORISM BODIES

2021 ◽  
pp. 82-92
Author(s):  
Artem V. Rudenko ◽  
Keyword(s):  
Russian Federation ◽  
Point Of View ◽  
System Construction ◽  
Federal Law ◽  
Basic Principles ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Federal Laws ◽  
Principle Of Legality

The relevance of the article stems from the adoption by the constituent entities of the Russian Federation of rules on administrative liability for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Russian Federation in situations of conflict with federal law regulations, caused by adoption of the Federal Law No. 82-FZ of 18 April 2018. This contradiction calls into question the conformity of the adopted norms of the laws on administrative liability of the constituent entities of the Russian Federation with the principle of legality, as one of the basic principles of the State’s legal system construction. The purpose of the article is to develop a position on legal conduct in a situation of con-flict with the legal norms of federal legislation in establishing administrative liability by the constituent entities of the Russian Federation. The possibility of establishing administrative liability at the level of the constituent entities of the Russian Federation is enshrined in the Constitution of the Russian Federation and the Code of Administrative Offences of the Russian Federation After the adoption of the Federal Law No 82-FZ of 18 April 2018 «On Amendments to the articles 5 and 5.1 of the Federal Law «On Counteracting Terrorism» legal conflict in the regulation of these powers has arisen. These changes affected not only the regulation of the above-mentioned powers of the constituent entities of the Russian Federation, but also the system of sources of administrative liability, since Code of Administrative Offences of the Russian Federation states: administrative liability source system refers only to the Code and the laws of the constituent entities of the Russian Federation. The article contains an analysis of possible interpretations of the provisions of federal laws on the powers of the constituent entities of the Russian Federation to establish adminis-trative liability for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Federation. Possible interpretations of the term «decisions of an anti-terrorist body» are analyzed from the point of view of the goals and tasks of formation of these bodies, their powers and organizational-steam form. The study concludes that it is necessary to comply with the provisions of the Code of Administrative Offences of the Russian Federation when determining responsibility for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Russian Federation. It is recommended that the legislatures of the constituent entities of the Russian Federation refrain from adopting such norms. It is recommended that the judicial authorities should take into account the provisions of the Decision of the Plenum of the Supreme Court of the Russian Federation of 24 March 2005 No 5 « On certain issues raised by the courts in the application of the Code of Administrative Offences of the Russian Federation».

scholarly journals Criminal Law Violations in Labour Safety at Coal Mining Enterprises

2019 ◽  
Vol 105 ◽  
pp. 02018 ◽  
Author(s):  
Yury Volgin ◽  
Irina Gaag ◽  
Alexander Naumov
Keyword(s):  
Supreme Court ◽  
Coal Mining ◽  
Russian Federation ◽  
Mining Industry ◽  
Case Law ◽  
Criminal Code ◽  
Distinctive Features ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Safety Rules

The paper deals with the qualification of criminal violations of safety rules in coal mining enterprises in the light of recent changes in Art. 216 and 217 of the Criminal Code of the Russian Federation, as well as the adoption of a new Resolution of the Plenum of Supreme Court of the Russian Federation on violations of safety rules during operations. Firstly, the old and new editions of Art. 216 and 217 of the Criminal Code are compared. After that, the distinctive features of the articles under consideration are examined with the help of the new Plenum Resolution, federal laws and bylaws. Finally, the case law on this issue has been reviewed since 2016 with consideration of specific examples. In the paper, the authors do not address the issues of qualifying violations of safety rules at coal mining enterprises under Art.143 of the Criminal Code as it has not been changed. At the end of the study, the authors formulate the qualification rules taking into account the latest changes, without proposing any changes to the Criminal Code of the Russian Federation and other regulatory legal acts that do not include the Resolution of the Plenum of the Supreme Court, i.e. the results of the study can be used in practice. The problem is that there is a lack of research of the changes we are considering in the Criminal Code of the Russian Federation, and even more in relation to the coal mining industry.

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