Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.152.7.042-053
A. V. Korepina
The paper attempts to theoretically substantiate a new legal institution in the system of administrative law, which requires independent scientific understanding. The author identifies the essential features of the moratorial administrative law regime, allowing to determine its place and purpose in the system of administrative law regulation. In the process of analyzing the urgent legal norms adopted in the Russian Federation in recent years, it has been established that many administrative law institutions are implemented within the framework of the moratorium regime. One of them is the Institute of expertise in the field of public administration. On the one hand, examination as a professional tool for assessing legally significant circumstances and facts necessary for making a public management decision provides an additional safeguard of compliance with the interests of the state, society and the individual in the implementation of economic or other activities. On the other hand, it acts as an administrative barrier, the overcoming of which requires additional time, labor, and financial costs from the participants of legal relations. In this regard, the establishment of moratorium measures in the implementation of the institute of expertise in the field of public administration should be recognized as justified in emergency conditions. Special attention is paid to the characteristics of the main types of the moratorium in the field of state expert activity.
{"title":"Examination in the Conditions of the Moratorium Regime","authors":"A. V. Korepina","doi":"10.17803/1994-1471.2023.152.7.042-053","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.152.7.042-053","url":null,"abstract":"The paper attempts to theoretically substantiate a new legal institution in the system of administrative law, which requires independent scientific understanding. The author identifies the essential features of the moratorial administrative law regime, allowing to determine its place and purpose in the system of administrative law regulation. In the process of analyzing the urgent legal norms adopted in the Russian Federation in recent years, it has been established that many administrative law institutions are implemented within the framework of the moratorium regime. One of them is the Institute of expertise in the field of public administration. On the one hand, examination as a professional tool for assessing legally significant circumstances and facts necessary for making a public management decision provides an additional safeguard of compliance with the interests of the state, society and the individual in the implementation of economic or other activities. On the other hand, it acts as an administrative barrier, the overcoming of which requires additional time, labor, and financial costs from the participants of legal relations. In this regard, the establishment of moratorium measures in the implementation of the institute of expertise in the field of public administration should be recognized as justified in emergency conditions. Special attention is paid to the characteristics of the main types of the moratorium in the field of state expert activity.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116845086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.152.7.159-166
A. Shulakov
In its judgment in case C-135/15 dated April 20, 2016 the Court of Justice of the European Union confirmed the most important provisions of the doctrine of F.C. Savigny: 1) the public policy of the state is protected both by a general public policy clause (negative clause) and by special rules of a strictly positive, imperative nature (positive clause); 2) the application of positive and negative public policy clauses is based on considerations of public interest that are of fundamental importance for the political, social or economic structure of the country. In the constitutional law of Russia and foreign countries, the political, social and economic foundations of the country’s structure are the three fundamental foundations of the state, enshrined as provisions of the Constitution. The EU Regulation Rome I (Art. 9), the Civil Code of the Netherlands (Art. 10:7) and other modern foreign legal acts, as characteristics of super-imperative norms, fix the protection of public interests related to the three fundamental foundations of the organization of the state: political, social or economic structure (organization) of the state.Art. 1193 of the Civil Code of the Russian Federation establishes the elements on the legal, political or economic system of the state used by the Supreme Court of the Russian Federation as a template to determine the differences in the system of the state. Therefore, they are not suitable for the characteristics of public policy and protective clauses on public policy. Enshrined in Part 3 of Art. 55 of the Constitution of the Russian Federation, public interests (constitutionally significant values) are of fundamental importance for the political, social or economic structure of the country. In accordance with the doctrine, modern legislation and practice, public policy is based on these interests within the meaning of private international law. Considerations related to the indicated public interests underlie the application of both positive (Article 1192 of the Civil Code of the Russian Federation) and negative (Article 1193 of the Civil Code of the Russian Federation) public policy clauses.
{"title":"Public Interest and Safeguard Clauses in Private International Law","authors":"A. Shulakov","doi":"10.17803/1994-1471.2023.152.7.159-166","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.152.7.159-166","url":null,"abstract":"In its judgment in case C-135/15 dated April 20, 2016 the Court of Justice of the European Union confirmed the most important provisions of the doctrine of F.C. Savigny: 1) the public policy of the state is protected both by a general public policy clause (negative clause) and by special rules of a strictly positive, imperative nature (positive clause); 2) the application of positive and negative public policy clauses is based on considerations of public interest that are of fundamental importance for the political, social or economic structure of the country. In the constitutional law of Russia and foreign countries, the political, social and economic foundations of the country’s structure are the three fundamental foundations of the state, enshrined as provisions of the Constitution. The EU Regulation Rome I (Art. 9), the Civil Code of the Netherlands (Art. 10:7) and other modern foreign legal acts, as characteristics of super-imperative norms, fix the protection of public interests related to the three fundamental foundations of the organization of the state: political, social or economic structure (organization) of the state.Art. 1193 of the Civil Code of the Russian Federation establishes the elements on the legal, political or economic system of the state used by the Supreme Court of the Russian Federation as a template to determine the differences in the system of the state. Therefore, they are not suitable for the characteristics of public policy and protective clauses on public policy. Enshrined in Part 3 of Art. 55 of the Constitution of the Russian Federation, public interests (constitutionally significant values) are of fundamental importance for the political, social or economic structure of the country. In accordance with the doctrine, modern legislation and practice, public policy is based on these interests within the meaning of private international law. Considerations related to the indicated public interests underlie the application of both positive (Article 1192 of the Civil Code of the Russian Federation) and negative (Article 1193 of the Civil Code of the Russian Federation) public policy clauses.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129350573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.153.8.064-076
A. Averina
In recent years, the law enforcement practice in bankruptcy cases has tended to increase the importance of the active role of the court in resolving court disputes. The paper discusses the causes and consequences of strengthening an active role of the court in relation to the specifics of bankruptcy proceedings. The author identifies the system levels of regulation of this type of legal proceedings and its place in the system of civil proceedings. The paper highlights the system-forming role of judicial practice that cumulates the biggest part of both the substantive and procedural features of such cases. The author summarizes and systematizes the points of view available in the doctrine concerning categorization of bankruptcy proceedings and gives her own opinion on this issue. The author concludes that strengthening the active role of the court in the bankruptcy proceedings is necessary to maintain a balance of interests and prevent abuse by the participants of the procedure. Consolidation of the active powers of the court at the legislative level can have a positive effect on reducing the time for consideration of such cases and increasing the percentage of satisfaction of creditors’ claims. At the same time, such consolidation will strengthen the specifics of bankruptcy proceedings, bringing them even closer to administrative proceedings.
{"title":"Peculiarities of the Bankruptcy Proceedings Regulation","authors":"A. Averina","doi":"10.17803/1994-1471.2023.153.8.064-076","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.153.8.064-076","url":null,"abstract":"In recent years, the law enforcement practice in bankruptcy cases has tended to increase the importance of the active role of the court in resolving court disputes. The paper discusses the causes and consequences of strengthening an active role of the court in relation to the specifics of bankruptcy proceedings. The author identifies the system levels of regulation of this type of legal proceedings and its place in the system of civil proceedings. The paper highlights the system-forming role of judicial practice that cumulates the biggest part of both the substantive and procedural features of such cases. The author summarizes and systematizes the points of view available in the doctrine concerning categorization of bankruptcy proceedings and gives her own opinion on this issue. The author concludes that strengthening the active role of the court in the bankruptcy proceedings is necessary to maintain a balance of interests and prevent abuse by the participants of the procedure. Consolidation of the active powers of the court at the legislative level can have a positive effect on reducing the time for consideration of such cases and increasing the percentage of satisfaction of creditors’ claims. At the same time, such consolidation will strengthen the specifics of bankruptcy proceedings, bringing them even closer to administrative proceedings.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"290 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115534806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.152.7.178-189
V. Slepak, K. A. Vinokurova
The paper is devoted to the analysis of the legal grounds for the imposition of sanctions by Western jurisdictions against representatives of Russian business and their relatives, as well as current law enforcement practice. An important general trend in the development of sanctions legislation is the gradual expansion of the scope of application of the grounds for imposing sanctions with the simultaneous simplification of inclusion in the sanctions lists. Prominent examples are the expansion of sectors of the economy affected by US sanctions, and the very ability of the US and UK to impose blocking sanctions simply by virtue of the fact that a person operates in a certain sector of the economy. In the EU, to impose sanctions on a businessperson operating in a particular sector, one still has to prove the presence of a leading position, but this is also a rather vague term. This approach is also the result of a simplification: there is practically no need to prove connection with the regime due to the presumption of connection between big business and the political regime considered in this paper. The UK also simplified the procedure for imposing sanctions by extending them to family members of sanctioned persons, which eliminated the need to prove the presence of financial and economic ties with the sanctioned person. An even more important easing in the imposition of sanctions was the emergence of a simplified procedure for imposing sanctions on persons who fell under the sanctions of the UK’s allies. This procedure only allows checking the coincidence of the grounds for imposing sanctions without checking the actual circumstances that caused the inclusion of a person in the sanctions list. In fact, the only way to avoid being included in the sanctions lists is to refuse any activity that serves as a basis for inclusion in the sanctions lists. Often, such a scenario is unrealistic, which means that representatives of Russian big business will only have to take measures to minimize possible harm, since the elimination of the sanctions risk becomes almost impossible.
{"title":"Sanctions and Restrictive Measures against Business Representatives and Members of their Families: Legal Aspects","authors":"V. Slepak, K. A. Vinokurova","doi":"10.17803/1994-1471.2023.152.7.178-189","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.152.7.178-189","url":null,"abstract":"The paper is devoted to the analysis of the legal grounds for the imposition of sanctions by Western jurisdictions against representatives of Russian business and their relatives, as well as current law enforcement practice. An important general trend in the development of sanctions legislation is the gradual expansion of the scope of application of the grounds for imposing sanctions with the simultaneous simplification of inclusion in the sanctions lists. Prominent examples are the expansion of sectors of the economy affected by US sanctions, and the very ability of the US and UK to impose blocking sanctions simply by virtue of the fact that a person operates in a certain sector of the economy. In the EU, to impose sanctions on a businessperson operating in a particular sector, one still has to prove the presence of a leading position, but this is also a rather vague term. This approach is also the result of a simplification: there is practically no need to prove connection with the regime due to the presumption of connection between big business and the political regime considered in this paper. The UK also simplified the procedure for imposing sanctions by extending them to family members of sanctioned persons, which eliminated the need to prove the presence of financial and economic ties with the sanctioned person. An even more important easing in the imposition of sanctions was the emergence of a simplified procedure for imposing sanctions on persons who fell under the sanctions of the UK’s allies. This procedure only allows checking the coincidence of the grounds for imposing sanctions without checking the actual circumstances that caused the inclusion of a person in the sanctions list. In fact, the only way to avoid being included in the sanctions lists is to refuse any activity that serves as a basis for inclusion in the sanctions lists. Often, such a scenario is unrealistic, which means that representatives of Russian big business will only have to take measures to minimize possible harm, since the elimination of the sanctions risk becomes almost impossible.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133878872","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.152.7.027-041
I. Chechelnitsky
Based on the analysis of the views available in doctrine and practice, the author explains the author’s approach to the classification of types of human rights activities. Six main classifications of human rights work are proposed and described in detail according to such criteria as their nature, object, subject, method, scope, time frame, categories of persons violating the rights. The conclusion is made about the need for a conceptual revision of the understanding of human rights protection as a human struggle against the state; the paper justifies the expediency of closer coordination of all types of human rights activities. The author highlights that improving the effectiveness of state human rights activities is directly connected with the creation of an effective mechanism for coordinating the work of all state human rights organizations in Russia, not only among themselves, but also with numerous public human rights organizations; with the formation of common understandable and transparent criteria for the effectiveness of their activities, improving its quality and accessibility for all citizens. To do this, it seems advisable to develop a strategic planning document in the field of human rights activities, in which the goals, objectives, principles and indicators of human rights work, the main stages of achieving the set human rights results and criteria for their evaluation are consolidated in detail.
{"title":"Human Rights Activities Classification","authors":"I. Chechelnitsky","doi":"10.17803/1994-1471.2023.152.7.027-041","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.152.7.027-041","url":null,"abstract":"Based on the analysis of the views available in doctrine and practice, the author explains the author’s approach to the classification of types of human rights activities. Six main classifications of human rights work are proposed and described in detail according to such criteria as their nature, object, subject, method, scope, time frame, categories of persons violating the rights. The conclusion is made about the need for a conceptual revision of the understanding of human rights protection as a human struggle against the state; the paper justifies the expediency of closer coordination of all types of human rights activities. The author highlights that improving the effectiveness of state human rights activities is directly connected with the creation of an effective mechanism for coordinating the work of all state human rights organizations in Russia, not only among themselves, but also with numerous public human rights organizations; with the formation of common understandable and transparent criteria for the effectiveness of their activities, improving its quality and accessibility for all citizens. To do this, it seems advisable to develop a strategic planning document in the field of human rights activities, in which the goals, objectives, principles and indicators of human rights work, the main stages of achieving the set human rights results and criteria for their evaluation are consolidated in detail.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130837302","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.152.7.097-104
T. V. Shakitko
The paper examines the composition of the elements of proof in one of the categories of cases of special proceedings, namely, in court cases of recognition of citizens as missing. The relevance of legal norms on missing people is determined by the increase in the number of armed conflicts, natural and technological catastrophes. The need to study this issue is explained by the fact that erroneous court decisions lead to legal uncertainty, affect civil turnover in a negative way, infringe property and other rights of citizens. The number of missing people is alarming, and search for them is not always effective. At the same time, as shown in the paper, there is an unsolved problem of forming a legally compliant composition of the subject of proof in cases of recognition of citizens as missing. In the conditions of modern mega-catastrophes, legislative filling of this gap through consolidating the general subject of proof in the Civil Procedure Code of the Russian Federation and detailing of the local subject of proof will serve timely and correct consideration of such cases.
{"title":"The Elements of the Subject of Proof in Cases of Recognition of an Individual as Missing","authors":"T. V. Shakitko","doi":"10.17803/1994-1471.2023.152.7.097-104","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.152.7.097-104","url":null,"abstract":"The paper examines the composition of the elements of proof in one of the categories of cases of special proceedings, namely, in court cases of recognition of citizens as missing. The relevance of legal norms on missing people is determined by the increase in the number of armed conflicts, natural and technological catastrophes. The need to study this issue is explained by the fact that erroneous court decisions lead to legal uncertainty, affect civil turnover in a negative way, infringe property and other rights of citizens. The number of missing people is alarming, and search for them is not always effective. At the same time, as shown in the paper, there is an unsolved problem of forming a legally compliant composition of the subject of proof in cases of recognition of citizens as missing. In the conditions of modern mega-catastrophes, legislative filling of this gap through consolidating the general subject of proof in the Civil Procedure Code of the Russian Federation and detailing of the local subject of proof will serve timely and correct consideration of such cases.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114463537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.152.7.105-114
V. I. Gilmanova
The paper aims at studying the legal nature and procedure for applying the rules of arbitration procedural legislation, which determine the conditions for the recognition and enforcement in Russia of foreign decisions on disputes involving «sanctioned» persons. These conditions are both an additional guarantee and a means of protecting the rights of these persons. The author argues that the legislator’s admission of the issuance of an exequatur to a foreign decision taken at the suit of a «sanctioned» person is justified, since the said person himself initiated a lawsuit in a foreign jurisdiction. The objections of the «sanctioned» person against the consideration of the case by a foreign court with his participation are characterized as one of the procedural and legal means of protecting the rights of the defendant, aimed at completing the consideration of the case without making a decision on the merits. The paper concludes that the fact of filing these objections in a foreign court is assessed taking into account the procedural norms of the place where the case is heard, the obstacles in their statement due to the effect of sanctions and the applicant’s good faith.
{"title":"Conditions for the Recognition and Enforcement of Foreign Judgments on Disputes Involving «Sanctioned» Persons in the Russian Jurisdiction","authors":"V. I. Gilmanova","doi":"10.17803/1994-1471.2023.152.7.105-114","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.152.7.105-114","url":null,"abstract":"The paper aims at studying the legal nature and procedure for applying the rules of arbitration procedural legislation, which determine the conditions for the recognition and enforcement in Russia of foreign decisions on disputes involving «sanctioned» persons. These conditions are both an additional guarantee and a means of protecting the rights of these persons. The author argues that the legislator’s admission of the issuance of an exequatur to a foreign decision taken at the suit of a «sanctioned» person is justified, since the said person himself initiated a lawsuit in a foreign jurisdiction. The objections of the «sanctioned» person against the consideration of the case by a foreign court with his participation are characterized as one of the procedural and legal means of protecting the rights of the defendant, aimed at completing the consideration of the case without making a decision on the merits. The paper concludes that the fact of filing these objections in a foreign court is assessed taking into account the procedural norms of the place where the case is heard, the obstacles in their statement due to the effect of sanctions and the applicant’s good faith.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126630956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.152.7.086-096
D. Malbin
A negatory claim may be applied in case of violation of a subjective right. Giving the negatory claim an uncharacteristic preventive function for the purposes of protecting subjective property rights is not necessary, because the desired goal is achieved by using a different method of legal protection and in relation to another object of legal protection, namely, a legitimate interest. An owner is interested in ensuring that his subjective right is not violated. Therefore, he has an interest in third parties acting in such a way that a violation of his right would be excluded. A violation of such a legitimate interest of the owner is the commission by the debtor of actions that will inevitably lead to a violation of property rights. In view of the fact that a subjective duty does not oppose a legitimate interest, a dispute concerning protection of a legitimate interest provides for the resolution of competition between the protection of the plaintiff’s legitimate interest and the defendant’s freedom of action. The court’s duty in such a dispute is to establish a fair balance between competing legal benefits so that the legitimate interests of one or the freedom of the other are not infringed without sufficient grounds. Prevention of violation of subjective property rights can be carried out by such a general method of protection as the suppression of actions that pose a threat of violation of the right, a special case of which is a claim for the prevention of harm. A special real preventive claim brought to prevent the violation of subjective property rights is possible only if the appropriate method of protection is fixed by law. However, in the conditions of the existence of such a universal method of protection as the suppression of actions that pose a threat of violation of the law applicable to all subjective rights, there is no need to consolidate a special real preventive claim.
{"title":"A Preventive Function of a Negatory Claim","authors":"D. Malbin","doi":"10.17803/1994-1471.2023.152.7.086-096","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.152.7.086-096","url":null,"abstract":"A negatory claim may be applied in case of violation of a subjective right. Giving the negatory claim an uncharacteristic preventive function for the purposes of protecting subjective property rights is not necessary, because the desired goal is achieved by using a different method of legal protection and in relation to another object of legal protection, namely, a legitimate interest. An owner is interested in ensuring that his subjective right is not violated. Therefore, he has an interest in third parties acting in such a way that a violation of his right would be excluded. A violation of such a legitimate interest of the owner is the commission by the debtor of actions that will inevitably lead to a violation of property rights. In view of the fact that a subjective duty does not oppose a legitimate interest, a dispute concerning protection of a legitimate interest provides for the resolution of competition between the protection of the plaintiff’s legitimate interest and the defendant’s freedom of action. The court’s duty in such a dispute is to establish a fair balance between competing legal benefits so that the legitimate interests of one or the freedom of the other are not infringed without sufficient grounds. Prevention of violation of subjective property rights can be carried out by such a general method of protection as the suppression of actions that pose a threat of violation of the right, a special case of which is a claim for the prevention of harm. A special real preventive claim brought to prevent the violation of subjective property rights is possible only if the appropriate method of protection is fixed by law. However, in the conditions of the existence of such a universal method of protection as the suppression of actions that pose a threat of violation of the law applicable to all subjective rights, there is no need to consolidate a special real preventive claim.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126747043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.17803/1994-1471.2023.153.8.045-052
G. A. Khaitov
The paper analyzes the provisions of the Budget Code of the Russian Federation, stipulating that expenditure obligations in the Russian Federation arise, among other things, as a result of the conclusion of contracts and agreements. The study revealed that the provisions of the Budget Code of the Russian Federation contain broad definitions that allow for the emergence of expenditure obligations from contracts that do not have regulatory properties, in particular from contracts concluded on behalf of a public legal entity by a state institution. The paper substantiates that such regulation does not take into account the legal standing of the Constitutional Court of the Russian Federation according to which the expenditure obligation must be established in a normative form. It is revealed that the budget legislation regarding the regulation of expenditure obligations is not synchronized with the legislation regulating the organization of public power. The paper provides arguments proving the need to specify that only public law contracts should act as the grounds for the occurrence of expenditure obligations. According to the results of the study, it is proposed to adjust the Budget Code of the Russian Federation in terms of specifying a specific list of types of contracts and agreements, because of which expenditure obligations arise.
{"title":"Contracts and Agreements as Grounds for Expenditure Obligations: A Legal Aspect","authors":"G. A. Khaitov","doi":"10.17803/1994-1471.2023.153.8.045-052","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.153.8.045-052","url":null,"abstract":"The paper analyzes the provisions of the Budget Code of the Russian Federation, stipulating that expenditure obligations in the Russian Federation arise, among other things, as a result of the conclusion of contracts and agreements. The study revealed that the provisions of the Budget Code of the Russian Federation contain broad definitions that allow for the emergence of expenditure obligations from contracts that do not have regulatory properties, in particular from contracts concluded on behalf of a public legal entity by a state institution. The paper substantiates that such regulation does not take into account the legal standing of the Constitutional Court of the Russian Federation according to which the expenditure obligation must be established in a normative form. It is revealed that the budget legislation regarding the regulation of expenditure obligations is not synchronized with the legislation regulating the organization of public power. The paper provides arguments proving the need to specify that only public law contracts should act as the grounds for the occurrence of expenditure obligations. According to the results of the study, it is proposed to adjust the Budget Code of the Russian Federation in terms of specifying a specific list of types of contracts and agreements, because of which expenditure obligations arise.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128683890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-05DOI: 10.17803/1994-1471.2023.153.8.169-178
D. Gershinkova
The paper discusses the features of the administrative and legal regulation of forest climate projects being formed in Russia. Russia has one fifth of the world’s forests, which play an important role in the country’s carbon balance, compensate for almost 30% of national anthropogenic emissions and determine the potential for the implementation of forest climate projects in the country. Forest climate projects are one of the types of climate projects, the legal framework of which is established by Federal Law No. 296‑FZ of 02.07.2021 «On Limiting Greenhouse Gas Emissions» and regulations adopted in accordance with it. However, general approaches do not take into account some features of forest climate projects, such as the long-term nature of projects, the need to maintain the result for decades at high risks of losses due to forest fires, illegal logging, insect pests, etc. That is, it is important to further develop the regulatory framework, taking into account the special requirements for forest climate projects, as well as the norms of state forest management and relevant international practices, including those formed under the auspices of the Paris Agreement. The paper analyzes the rights and obligations of participants involved in the implementation of forest-climatic projects, and the possibility of implementing projects on the lands of the forest fund and agricultural lands. Approaches to eliminate the existing legal gaps are proposed.
{"title":"On the Formation of Administrative and Legal Regulation of the Forest Climate Projects Implementation in Russia","authors":"D. Gershinkova","doi":"10.17803/1994-1471.2023.153.8.169-178","DOIUrl":"https://doi.org/10.17803/1994-1471.2023.153.8.169-178","url":null,"abstract":"The paper discusses the features of the administrative and legal regulation of forest climate projects being formed in Russia. Russia has one fifth of the world’s forests, which play an important role in the country’s carbon balance, compensate for almost 30% of national anthropogenic emissions and determine the potential for the implementation of forest climate projects in the country. Forest climate projects are one of the types of climate projects, the legal framework of which is established by Federal Law No. 296‑FZ of 02.07.2021 «On Limiting Greenhouse Gas Emissions» and regulations adopted in accordance with it. However, general approaches do not take into account some features of forest climate projects, such as the long-term nature of projects, the need to maintain the result for decades at high risks of losses due to forest fires, illegal logging, insect pests, etc. That is, it is important to further develop the regulatory framework, taking into account the special requirements for forest climate projects, as well as the norms of state forest management and relevant international practices, including those formed under the auspices of the Paris Agreement. The paper analyzes the rights and obligations of participants involved in the implementation of forest-climatic projects, and the possibility of implementing projects on the lands of the forest fund and agricultural lands. Approaches to eliminate the existing legal gaps are proposed.","PeriodicalId":158497,"journal":{"name":"Actual Problems of Russian Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128779510","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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