Russian Law Journal (RLJ)
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Public Property in Australia and Russia: The Concept and the Role of the Constitution
Full text linkThe modern democratic state embodies the concept of the state as a service. For this reason, the administration of public property is one of the major issues related to the efficiency of public authority. Common law countries and post-Soviet countries have completely different legal explanations and bases for public property. This article takes a comparative approach, showing similarities and differences in the public property regimes in these two systems.This article investigates why the two systems have different approaches to public property issues and how the differing experiences result in differing implementation. Australia and Russia have been chosen as examples of a common law system and the post-Soviet system, respectively. In addition to property regimes, this paper also discusses federalism issues.An analysis of these countries’ historical development permits a significant enhancement of the philosophical and legal understanding of property, especially public property. Protection of private property in Russia was very strong by 19th century standards. However, the Russian Empire fell behind in questions of public property compared to its protection of private property, and also compared to other systems outside of Russia. Some aspects of dealing with the most critical natural resources expand public property regulation issues into the constitutional sphere. Public property issues need constitutional justification in both Australia and Russia. However, Russia has constitutional provisions that provide the categories of property rights existing in its domestic law, while a great deal of effort was required in Australia to create the constitutional basis for water resources administration.The modern democratic state embodies the concept of the state as a service. For this reason, the administration of public property is one of the major issues related to the efficiency of public authority. Common law countries and post-Soviet countries have completely different legal explanations and bases for public property. This article takes a comparative approach, showing similarities and differences in the public property regimes in these two systems.This article investigates why the two systems have different approaches to public property issues and how the differing experiences result in differing implementation. Australia and Russia have been chosen as examples of a common law system and the post-Soviet system, respectively. In addition to property regimes, this paper also discusses federalism issues.An analysis of these countries’ historical development permits a significant enhancement of the philosophical and legal understanding of property, especially public property. Protection of private property in Russia was very strong by 19th century standards. However, the Russian Empire fell behind in questions of public property compared to its protection of private property, and also compared to other systems outside of Russia. Some aspects of dealing with the most critical natural resources expand public property regulation issues into the constitutional sphere. Public property issues need constitutional justification in both Australia and Russia. However, Russia has constitutional provisions that provide the categories of property rights existing in its domestic law, while a great deal of effort was required in Australia to create the constitutional basis for water resources administration
The Constitutional Principle of Uniform Economic Area and Centralization of Public Finance in the Russian Federation: Analysis of the Russian Federation Constitutional Court’s Rulings
Full text linkThe paper is devoted to the issue of centralization in public finance in Russia, and highlights one of the problems of interpretation of the Russian Constitution clauses. The Rulings of the Russian Federation Constitutional Court from the period 1997–2006 created legal grounds for the process of centralization and reduction of the regional powers regarding budgeting and taxation. But all arguments of the Court are debatable. Wherein, the centralization is justified by the constitutional principle of uniform economic area. The author argues that the Russian Constitution does not have clauses establishing the uniform budget and tax systems directly, and any model of intergovernmental relations might comply with the Russian Constitution. Uniformity of economic area does not imply uniformity in taxation and budgeting in the sense of sameness. Study of foreign practices shows different approaches to the understanding of uniformity in economy, and in taxation and budgeting. The contemporary Russian public finance law is formed under the influence of the Constitutional Court’s legal positions, and the process of centralization is still evolving. The Russian history of intergovernmental relations (1991–1997) shows another model of fiscal federalism – the decentralized federalism. Replacement of the fiscal federalism models is determined by the political considerations, not by constitutional requirements
On the constitutional model of the Russian economy
Full text linkThe article focuses on the analysis of the constitutional model of the Russian economy, including its conceptual underpinnings, fundamental principles, and overall design. Particular attention is paid to the problem of so-called “conflicting values” that are equally recognized by the constitutional foundation of the Russian economy. For example, the values of economic freedom and the usefulness of state regulation, and the importance of supporting competition and guaranteeing of social justice, are discussed as examples of conflicting principles. The authors conclude there is no irresolvable conflict. These equal constitutional values (i.e. the principles of economic freedom and the social nature of the state) create a “corridor of opportunities” which the state’s socioeconomic policy is balancing within in order to contribute to stability and sustainable development. It is noted in the article that the welfare state constitutional model becomes ineffective in modern conditions. In practice, excessive state social commitments lead to the exhaustion of the sources of growth, and to the slowdown and deterioration of human capital. The implementation of the concept of the workfare state is considered as the most promising. Furthermore, the authors show that the idea of the “neutrality” of the Constitutional Court in an assessment of economic regulations facilitates unlimited state expansion into the economy, provokes economic inequality and the decline of guarantees of economic liberties, and, as a result, leads to an economic slowdown
Tourist Taxes in Italy and Russia
Full text linkThe article deals with the legal regulation of tourist taxation in Italy with a view to improving the Russian tax system. Many European countries have adopted a tax on accommodation, also known as a tourist tax or a resort fee, in order to facilitate contribution by tourists to tourist infrastructure. This approach is currently being implemented in many countries, including those countries in the European Union which welcome a large number of tourists. Italy is one of the most popular such destinations, and has considerable experience in tourist taxation and regulation of public finances, which can serve as a useful example for the improvement of the Russian tax system. The authors point out that a nation’s laws should include a direct link between a tax resident and the location of a vacationer or a tourist. They also conclude that the imposition of the tax may affect the number of tourists in a particular municipality since they may prefer to stay in a place free from resort fees. The paper also examines and supports the imposition of the tax as a reasonable and civilized solution to the problem of damage caused to the environment by a large influx of tourists into particular territories, since it makes it possible to compensate for the damage caused. The research indicates that there is room for improvement with regard to certain provisions of the Law adopted in Russia and coming into force on 1 January 2018. In the authors’ view, the better solution would be to transfer resort fees to the budgets of those municipalities where tourists are accommodated. This would ensure the necessary tourist involvement in the public sphere, increase their responsibility and would also provide a direct link between the payment of the tax and the development of resort infrastructure
Protection of property rights based on the doctrine of piercing the corporate veil in the russian case law
Full text linkIn the Russian justice system, the doctrine of piercing the corporate veil was developed at the case law level and is used to prevent abuse in corporate relationships on the part of those who control a legal entity in detriment to the property rights of the legal entity’s creditors. Since the principle of limited liability is important for Russian civil circulation, it is necessary to identify the relevant grounds for the application of said doctrine and its application criteria. Our objective is to justify not only the need for preservation of the doctrine of piercing the corporate veil in the Russian legal system, but also the development of the doctrine by giving it concrete substance based on generalization of existing case law. The criteria for applying the doctrine of piercing the corporate veil are: monitoring the activities of a legal entity by another entity which can influence commercial companies’ decision making, actually or legally; violations or abuse of rights; existence of a cause-and-effect relationship between a violation or an abuse of rights on the part of the beneficiary and the creditor’s losses; the existence of exceptional circumstances in which it is impossible to protect the creditors’ legitimate interests with other legal measures; and dispute arising from private law relations. The main consequence of applying the doctrine of piercing the corporate veil is the disregard for the corporate entity. Autonomy can manifest in three areas (extension of a party’s debts to the legal entities under its control; acknowledgement that the rights and liabilities are actually vested in the party which managed the legal entity; acknowledgement of the legal entity as a representative of the controlling legal entity)
Acquisition and termination of the right of ownership in Russia
No full textThis article overviews the system of legal facts which, under Russian law, lie at the basis of the acquisition and termination of the right of ownership. The grounds for the acquisition of the right of ownership are being analyzed through their classification to the initial and derivative ones. The author focuses on the acquisition of the right of ownership in the result of making of a new thing; producing fruits, products and incomes from using a thing; entering a contract or another kind of deal on the alienation of property; succession; becoming the owner of the ownerless property; paying the share contribution as a member of a consumer cooperative. Special attention is payed to the procedure of the acquisition of the right of ownership to an unauthorized structure. Termination of the right of ownership is examined through such grounds as alienation of property by the owner in favor of another person; renouncement of the right of ownership by the owner; perish or destruction of property; loss of the right of ownership. The article also covers the instances of the forcible withdrawal of property, including, but not limited to turning of the penalty onto the property under obligations; alienation of the property, which may not be owned by the given person; alienation of immovable property and withdrawal of a land plot because of its improper use; alienation of immovable property due to withdrawal of a land plot for state or municipal needs; redemption of the mismanaged cultural values and of domestic animals; requisition; confiscation; appropriation by the Russian Federation on the basis of a court decision etc
How russian intervention in syria redefined the right to protect in armed conflict
Full text linkThe use of military force to forestall humanitarian crisis remains a controversial issue in international law. This strategy is considered antithetical to the sovereignty and territorial integrity of the host country. This legal quandary emanated in 1998 after NATO launched a series of airstrikes against the Yugoslavian forces under the doctrine of humanitarian intervention. This legal conundrum prompted the United Nations to craft comprehensive legal principles to determine the parameters of foreign interventions in armed conflict. The objective was realised in 2005 after the UN adopted the Right to Protect (R2P) as means of resolving humanitarian crisis. This doctrine intended to harmonise the foreign intervention in light of the shortcomings of unilateral humanitarian intervention. However, the abysmal failure in resolving the Libyan crisis exposed its soft underbelly as tool for perpetuating regime change against unpopular leaders. Subsequently, when Security Council proposed similar remedy for Syrian conflict, Russia strenuously objected and advocated for a political and diplomatic solution. This geopolitical gridlock prompted the divided council to adopt a different scenario in dealing with the Syrian conflict with the west supporting the rebels while Russia stood by Assad. This prompted Assad to appeal for assistance from Russia in counteracting ISIS and rebel forces that threatened to depose his government. In 2017 President Putin announced the success of the Russian intervention and called for peace talks among the various warring factions. As such Russia had realised the humanitarian objective behind R2P while respecting the sovereignty of Syria
R v. Jogee: A Case for Comparative Study
Full text linkCriminal cases, being almost entirely domestic in their nature, rarely draw comparative attention. But R v. Jogee, decided by the UK Supreme Court in 2016, is exceptional in its nature. It provoked a new discourse on a mental element in complicity in a highly controversial situation where the principal went beyond the scope of what was agreed, or in civil law language, excessu mandati. Following Jogee, common law is likely to move in the direction of implementing in a more coherent way the idea of a subjective fault standard for a mental element in complicity. Paradoxically, civil law systems are now much closer to pre-Jogee jurisprudence so there is good reason to conduct comparative analysis at this point
A study about the use of the term “legal facts”
Full text linkThe article describes, referring to characteristic examples, the use of term “legal facts.” Referring to a study of the Brazilian scholar Thiago Reis, the article explains why, in the beginning of Savigny’s career the term “legal facts” had importance as a manner to summarize the hitherto separated forms of possession, and how the term continued to be central to Savigny’s thinking, now turning into a central point of reference for legal science which was thought as being independent from philosophy and religion. Reis’ study furthermore allows to describe how the term was used thereafter in Germany, namely mostly to defend the achievements of legal science against new approaches and losing sophistication. When, using presentations made at a seminar that was held in 2015 in Almaty, the article further describes the use of the term “legal facts,” it argues that the higher reliance on the term throughout the CIS as compared to Germany may be linked to the lesser degree of detail knowledge about the historical contexts in which the term has been used, but also the lower degree of certainty about the benefit of the rules in the context of which the term “legal facts” is used. In other words, the same ambiguity typical for the use of the term in Germany exists throughout the CIS, and the term seems to lead to the expectation that there is an objective rule for the issue to be dealt with, it being unclear where the basis for such rule is