No 2 (2020)
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7-12 1800
Abstract
Investment activity is regulated by fragmentary provisions of various branches of legislation – civil, antitrust, legislation on investment activities, on foreign investment, industry legislation regarding foreign investment in the relevant segment of the Russian economy (fuel and energy complex, banking sector), and others. Taking this into account in detail, the emergence of doctrinal discussions and disagreements in judicial practice on issues related to the implementation of investment activities is justified. The article deals with General issues of investment legislation that have theoretical and practical significance. Special attention is paid to doctrinal differences in terms of defining the scope of investment agreements and the concept of an investment contract. The article presents judicial positions, in particular on the issue of qualification of contractual relations of an investor as regulated by an investment agreement, indicating the application of the Federal law «on investment activity» to obligations to create an object of intellectual property, in particular an audio-visual work. The main provisions of the legislation on foreign investment, including recent changes related to transactions made by foreign investors, are considered.
13-19 380
Abstract
This article is devoted to the problems of legal regulation of relations between participants in the process of associated petroleum gas processing, current legislation, their reflection and ways of resolution in judicial practice and in doctrinal sources. Russian legislation attaching legal significance to processing - in particular, processing is a legal basis for the acquisition of ownership either by the person who owns the primary raw materials or other materials for processing, or by the person who carried out the processing (Article 220 of the Civil Code of the Russian Federation), refrains from specifying this concept. Questions are raised by the legal content of the processing process. Therefore, if the utilization of associated gas is processing, then its flaring cannot be called such. This article also reflects the problem of the courts' qualification of exceeding the quota for associated gas flaring as an administrative offense. Exceeding this quota is subject to administrative responsibility - this act constitutes an administrative offense provided for in part 1 of Article 8.10 of the Administrative Code. At the same time, part 2 of Article 7.3 of the same regulatory legal act provides for liability for committing a similar offense. However, the courts make decisions based on Part 1 of Article 8.10 of the Code of Administrative Offenses of the Russian Federation, which currently does not have a high-quality legal basis.
20-28 311
Abstract
The subject of the study are legal aspects of the methodology for economically feasible calculation of corrective coefficients applied for determination of rental fees for land use. The key points of regulatory framework are studied. The authors propose an analysis of the implementation results of the developed methodology for calculating the correction factors. The methodology is based on the use of an integral indicator. This indicator characterizes the combined effect of several factors. The methodology for calculation of corrective coefficients involves accounting for the degree of profitability of activities carried out on the land, the relevant market segment development, the availability of demand for the result of activity, which corresponds to the principle of economic feasibility. The methodology takes into account the interests of municipalities. The methodology follows the principle of maintaining and stimulating investment attractiveness of the region in order to develop entrepreneurial potential and the economy. The economic expediency of introducing the methodology for municipalities and tenants of land plots was investigated. Based on the methodology, municipalities can establish economically feasible coefficients necessary for the subsequent calculation of rental fees for lands use.
29-40 257
Abstract
The article implements an integrated approach to the study of the processes of issue and circulation of financial instruments in such a specific sphere of the economy as the agro-industrial complex. The tasks of improving the legal mechanisms of the financial market and strengthening the material base of agriculture can be considered equally relevant. Thus, the subject of the study also reveals a complex nature, including the peculiarities of financing of the the agricultural production economy in their relationship with the principles of legal regulation of financial instruments civil turnover, with the peculiarities of their use in the agricultural producers activities. The scientific problem of developing effective mechanisms for attracting investments and increasing the capitalization of agricultural producers by issuing and participating in the circulation of a wide range of securities and derivatives also appears to be a complex and at the intersection of economics and law. To the solution of objectives serves the main scientific methods: analysis and synthesis, scientific abstraction, formal and logical, logiko-dialectic, induction and deduction, comparison and analogy. Special methods of economic science do not lose value: positive and normative analysis, functional analysis, equilibrium approach, verification, economic modeling, statistical observation. The specification of scientific results is promoted by private methods of jurisprudence: comparative, legal modeling, formal and dogmatic, synergetic. The empirical base consists of statistical data, author 's results of the involved observation, analysis and generalization of facts with their econometric interpretation, as well as fundamental theoretical works and the latest scientific developments, the content of normative legal acts. Scientific novelty is evident in the results of the comprehensive study of economic features of financing of agricultural sector entities using the corresponding financial instruments provided for by the current legislation, including shares, bonds, depositary receipts, derivatives, as well as securities in economic complexes of holding type, with identification of their sectoral specificity.
41-45 1846
Abstract
The article analyzes in detail the terminological apparatus in the field of cashless payments. On the one hand, in the context of the development of the digital economy, the turnover of cashless payments in Russia and around the world is gaining momentum and, therefore, needs high-quality legal regulation. This is confirmed by a number of strategically important documents of Russia, identified in this article. The relevance of the sphere of non-cash payments is confirmed, among other things, by the statistical data provided in the article, obtained by comparing the indicators of demand for non-cash funds compared to cash. On the other hand, the analysis of this sphere shows gaps in the legislation already at the stage of determining its key elements. Legal experts and economists express a diverse position on the issue of understanding and legal definition of cashless payments, which, in the absence of the necessary legal regulation, affects the quality of legal regulation of relations in this area. In this regard, the author carried out a detailed analysis of modern Russian legislation, as well as the legal and economic doctrine, in order to identify key signs of cashless payments and forms of cashless payments. The methodological basis of this study includes the following methods: deduction, system analysis, comparative analysis, description, theoretical and legal forecasting. The scientific novelty of the study lies in the development of recommendations for improving the regulatory legal framework for non-cash payments. The main conclusions of the study were the author's definition of cashless payments and forms of cashless payments, reflecting all the key features, and allowing to structure the understanding of these two terms. These terms may be included in articles 861 and 862 of the Civil Code of the Russian Federation.
46-55 1096
Abstract
This article explores the concept and essence of the national payment system, as the basis of the state economic sovereignty. As a result of the analysis of legislation in this area of law, some important aspects were identified such as relationship and interdependence of the national payment system and banking system, as well as the main trends in the modernization of the legal framework for the regulation of relevant institutions. It is considered that the priority goal of the government in ensuring economic security is the development of the national banking and payment system. Particular attention is paid to the analysis of the functions and objectives of the national payment card system as a structural element of the National Payment System. The history of the emergence and development of the first domestic payment systems is considered, and particularly - the genesis of the «Mir» payment system, as well as the main tasks of the state on the way of implementing this project are analyzed. The authors analyze specific features of the national system of payment cards «Mir» infrastructure, which distinguish it from earlier and unsuccessful attempts to develop national payment instruments. The subject composition of the National System of Payment Cards and its features, due to the high degree of participation of the Central Bank of Russian Federation in the regulation of this system are studied. Specific attention is paid to the problem of state monopoly in the field of regulation of NPS.
COMPARATIVE LAW
56-65 1079
Abstract
The author ascertains the fact that the world economy is currently developing on the basis of introducing various innovations into economic activity under the conditions of attracting foreign investments into the national economy of each individual state, which is also inherent in the economies of the member states of the Eurasian Economic Union (hereinafter – the EAEU) and, First of all, the economies of the Republic of Belarus and the Russian Federation. As one of the innovations actively included in global economic processes, cryptocurrencies are legalized, which are legalized by a number of states as a means of settlement. At the same time, it is indicated that the Republic of Belarus is the only state party to the EAEU that has somehow legalized, albeit on a very limited scale, the civil circulation of cryptocurrency. At the same time, according to the author’s point of view, the digitalization processes of national economies by the EAEU member states is illogical without legalizing the civil turnover of innovative financial acts called cryptocurrencies. Based on an analysis of global trends in the development of the cryptocurrency market, the inclusion of the banking sector of the global economy in these processes, and the active work of a number of states to create and issue state cryptocurrencies, it is concluded that there are no adequate legal conditions for the development of the cryptocurrency market in the EAEU member states and the need to revise approaches to legalization of civil circulation of cryptocurrency, the need is substantiated for the legalization of civil circulation of cryptocurrency in the private sector of the national economy, the Central Bank is empowered to issue the state cryptocurrency and regulate the cryptocurrency market in the state, which, according to the author, will lead to the intensification of economic activity and the attraction of foreign into the private sector of the national economy investment. The study used general scientific and private scientific methods of cognition: dialectical, system analysis, legal hermeneutics, formal legal.
66-71 638
Abstract
At the present stage of development, European countries are faced with the need to harmonize their legal systems by implementing European Union regulations in all spheres of society, including in the field of legal regulation of trademarks. This article will cover aspects of legal regulation of trademarks based on the example of France. It will analyze the types of trademarks, conditions for registering trademarks, requirements for trademarks, as well as contradictions that arise when registering trademarks. In addition, the impact of EU directives and regulations in the field of trademark regulation on the French legal system will be considered. Taking into account the cross-sectoral nature of the legal Institute of intellectual property, the advantages of the French experience, which combines various forms and methods of legal regulation and protection of intellectual property, are justified. The principles of legal protection for the results of any creative and intellectual work in France comply with international standards. In addition to participating in all international acts and agreements, France has its own national legislation in the field of copyright and patent rights. This allows authors and inventors to ensure full protection of their rights from violations.
INTERNATIONAL RELATIONS AND LAW
72-78 479
Abstract
The article discusses some theoretical aspects of the international legal protection of foreign investment in the era of the digital economy. The author highlights some problematic issues of the settlement of investment disputes between the investor and the state, as well as the judicial practice of the arbitration tribunals of the International Center for the Settlement of Investment Disputes. The important role of judicial precedent, the Washington Convention of the ICSID, the Vienna Convention on the Interpretation of Treaties (hereinafter referred to as the Vienna Convention) and scientific developments in identifying foreign investment at the present stage of social development are emphasized. Based on their analysis, a contribution to the development of the category of foreign investments is made and the need for further full application of the Salini test in the practice of ICSID arbitration in order to qualify the project as foreign contributions to the economy is substantiated. It is emphasized that the Convention contains quite comprehensive conceptual legal and economic characteristics of investments with a foreign element, suitable for assessment in arbitration practice of the settlement of disputes between investor and state in a digital economy. Which should be projected into national legislation and interstate investment agreements to create a favorable investment regime and implement guarantees for the protection of foreign investors on the basis of an established arsenal of economic and legal research.
HISTORY OF STATE AND LAW OF FOREIGN COUNTRIES
79-84 3270
Abstract
The article deals with the development of emancipation procedures, i.e., emancipation upon reaching the age of 16 from the custody of parents or a guardian with their consent, in Ancient Rome. Its evolution is tracked depending on the modification of the social structure of society: from a strictly hierarchical Patriarchal family to its disintegration due to the expansion of economic independence of members of society. The reception of Roman law formed the basis for the legislation of many European States, including the legal system of Russia as part of the Romano-Germanic legal family. The division of the right into private and public, the institution of emancipation, and the institution of guardianship and guardianship were almost entirely borrowed. The article traces the influence of Roman law in the regulation of civil legal capacity, namely, the division of minors by the degree of restriction of legal capacity into age categories. In modern domestic doctrine, the institute of emancipation does not have an unambiguous assessment. Some lawyers believe that thanks to it, minor citizens will be able to gain economic independence, while others believe that it is necessary to resort to emancipation in exceptional cases, more precisely with the material disadvantage of the minor and his family.
COMBATING CORRUPTION
85-94 836
Abstract
The article is devoted to the problems of corruption in modern Russia as one of the threats to its state and public security. The goal is to show the state and extent of this phenomenon and assess the degree of danger to the Russian state in modern conditions. The article touches on the historical aspect of this problem. The level of corruption is shown on the basis of sociological research of various state and public institutions, data from law enforcement agencies of the Russian Federation and officials. The most high-profile examples of corruption activities from print and electronic media were used. Anti-corruption measures applied by the country's leadership are highlighted. The relevance of the topic allows you to focus on a problem that has important theoretical and practical significance. The author used both traditional and modern research methods used in the analysis of socio-political life. Important aspects of the state of corruption in the country are analyzed, its causes are shown, and some recommendations for strengthening the effectiveness of combating it, including those taken from the experience of other countries, are considered.
PLEKHANOV SCHOOL OF YOUNG SCIENTISTS
95-100 555
Abstract
Importance The article is devoted to the problems of creating and further functioning of various types of special economic zones on the territory of the Russian Federation. This article examines the practice of functioning and dynamics of development of special economic zones in the Russian Federation, as well as regularities in the territorial location of these zones. The article presents the advantages of special economic zones, customs and other preferences. The opinions of various independent experts and different points of view are presented. The article presents an analysis of the shortcomings and problems of creating and functioning special economic zones on the territory of the Russian Federation and considers methods for improving the efficiency of special economic zones. The relevance of the chosen topic lies in the fact that various forms of territories with a special business regime are a powerful catalyst for accelerating the development of the Russian economy and entrepreneurship, and the growth of the country's scientific and economic potential. Also relevant is the fact that the creation of such territories outlines a completely new mechanism of public-private partnership (PPP), which causes a strong resonance in society and focuses attention on itself, as it is one of the innovative methods used by the state. The relevance of the topic is also due to the fact that the development of business activity is an effective step towards expanding international economic cooperation of the Russian Federation. The subject of the study The legal mechanism for regulating business activities in territories with special treatment. Methods The research involves methods of logic and statistical analysis. Consider the concept, essence, and variety of designs of territories with special treatment; reveal the variety and characteristics of territories with a special regime; disclose the content of legal regulation of territories with special treatment; study the problems of socioeconomic development of territories with special treatment; to study the problems of creation and development of territories with a special regime of business activity. Conclusions and results It is concluded that when developing a qualitatively new strategy for socio-economic development, the main directions and mechanisms for overcoming poverty in Russia should be: legalization of shadow markets; the need for change income structures of the population; the need to form a middle class by property; development of individual entrepreneurship; formation of a strong civil society in the regions.
101-106 414
Abstract
The subject of this study is the institution of contractual work in a corporation. Using the methods of complex and system analysis in conjunction with various civil law institutions, the author analyzes the concepts of «contract», «contract work». Distinguishes between the contract and the deal. The conditions specific to civil contracts are classified by the author into material, ordinary, random. Also the concept of «implied conditions» is disclosed. Based on a study of the legislation governing contractual work, the author identifies its main goals and objectives. The subject composition of contractual work is studied, the place and role of the head of the corporation, management and employees of legal departments (services) is revealed. Contractual work as an activity is divided by the author into several stages, after which a general description of each stage is given. Distinguished differences in the methodology of contractual work in various corporations and the most common errors associated with this activity. The importance of reference documents being developed at the international and state levels, used in domestic corporate contract practice, is noted. According to the results of the study, in order to increase the efficiency of managing contractual relations in a corporation, the author identifies the most relevant areas for improving contractual work.
107-111 249
Abstract
The purpose of this work is to identify the specific features of the regulation of the institution in Mexico. In order to achieve this goal, the following objectives should be pursued: to identify treaties and laws that regulate recognition and enforcement of foreign arbitral awards in Mexico; to investigate directly the procedure for recognition and enforcement of foreign arbitral awards in Mexico; to analyze how laws work in practice; to find out the problems that arise due to imperfect legislation in this area. The subject of the research is international and national legislation that ensures the functioning of the institution in Mexico. When writing the work, both general methods were used, including analysis, synthesis, generalization of theoretical and scientific knowledge, and a private method of comparative law. The current trend towards strengthening international relations between Mexico and Russia, as well as a small number of researches and articles in Russian on the legal system of the United States of Mexico, indicate how relevant the topic is at present.
111-118 450
Abstract
This article is devoted to such a legal phenomenon as a group of commercial organizations. This institution is not new, but it characterizes a certain stage in the development of commercial relations and legal entities involved in trade. Despite the fact that a huge number of business entities already conducts their activities in the form of a group of companies, there is still no single definition of this term in law, judicial practice and doctrine; moreover, there are no uniform classifications of this form of doing business. In the process of writing this article, a collection and analysis of regulatory acts of the international, regional and national level, as well as doctrinal sources of both domestic and foreign origin, was made. The purpose of the analysis produced is the creation of a system document that would contain the basic definitions of such a legal institution as a group of commercial organizations, and which would make it possible to get acquainted with the classifications of groups and the regulation of their activities on the territory of various states and integration structures. Knowing what is meant by the term “group of companies” in a particular state and what forms are prescribed by law will help to avoid problems with government bodies and maximize the benefits of doing business, what is very important for any enterprise.
119-126 281
Abstract
The article is devoted to the study of topical issues of legal regulation of highly automated vehicles in the current legislation of the Russian Federation. The article analyzes the problems of regulatory regulation of highly automated vehicles (hereinafter – TS) in the Russian Federation, considers a number of collisions arising in the legal sphere in connection with the regulation of the process of interaction between humans and automated machines, and also examines the measures taken by the Government of the Russian Federation in order to further create favorable environment for the development of modern transport infrastructure. Examples of the regulation of relations in the field of creating highly automated vehicles, their testing on public roads in foreign countries are analyzed, in addition, issues of law enforcement in this area are discussed. The author of the article examines the regulatory framework for regulating relations in the field of contact between users and automated vehicles. Proposals have been formulated to establish in the law the rules for the implementation of activities related to the creation and use of highly automated vehicles. The article analyzes modern legal norms governing the relations under consideration, in addition, proposals are formulated to eliminate gaps in legal regulation in the field of application of automated vehicles. The article formulates conclusions concerning the regulatory regulation of the use of highly automated equipment in the transport sector.
127-134 346
Abstract
The article presents a comprehensive study of current problems of legal regulation of initial (maximum) contract price-determining. The author substantiates the idea that there is legal uncertainty regarding the need for mandatory application by state and municipal customers of the Order of the Ministry of economic development of Russia dated 02.10.2013 №. 567 «On approval of the Methodological recommendations on the application of methods for determining the initial (maximum) price of a contract, the price of a contract concluded with a single supplier (contractor, executor) ». Particular attention is paid to the analysis of judicial practice in cases related to the resolution of disputes on the application of article 22 of the Federal law of 05.04.2013 N 44-FZ «On the contract system in the field of procurement of goods, works, services for state and municipal needs». Based on the study of law enforcement practice, the author makes proposals for improving legislation in the field of regulating the procedure for purchasing goods, works, and services for state and municipal needs. In particular, it is proposed to create a new way for state and municipal customers to obtain price information necessary for applying the method of comparable market prices (market analysis) based on the catalog of goods, works, and services.
135-141 221
Abstract
The article discusses the possibilities of small and medium-sized businesses in obtaining support when initiating bankruptcy proceedings, the conditions for approving restructuring as a measure used in bankruptcy cases. The study analyzed the statistics of decisions of arbitration and appeal courts in order to identify trends in the number of bankruptcies, measures taken in bankruptcy cases of small and medium-sized businesses and problems arising during bankruptcy proceedings in relation to the economic entities in question. On the basis of other studies, comments on laws and scientific papers, the problems of legal coverage of the process of bankruptcy of enterprises are identified, recommendations and methods are proposed with the aim of improving legislation in the field of legal support for small and medium-sized enterprises in the restructuring of debts in bankruptcy conditions. The key factor influencing the adoption of decisions in cases of approval of measures applicable in bankruptcy cases is the result of an analysis of the debtor's financial condition. The main problems in debt restructuring in the context of bankruptcy of small and medium-sized businesses are supposed to be the problem of debtors' mistrust of banks and external managers, incompetence of debtors in assessing their financial condition, providing inaccurate information and making mistakes at the stage of preparing documentation.
141-148 1030
Abstract
The subject of this article is the legislative novelties introduced in the Civil Code of the Russian Federation in connection with the entry into force of the Federal Law of March 18, 2019 N 34-FZ. Using a very extensive methodological basis (the general scientific dialectic method of cognition; analysis; synthesis; comparative legal; formal logical), the author analyzes the legal nature, content and essence of digital rights, transactions made using electronic or other technical means, as well as working principles smart contracts. The prospects of the introduction of these institutions in civil law relations and entrepreneurial activities are noted. The scientific novelty of the study lies in the fact that it highlights the most problematic aspects arising from the relevant legislative structures, as well as those formulated in the doctrine of civil law. Analogies are drawn with the developing legislation of foreign countries in the field of the use of digital rights and smart contracts. As a result of the study, the author formulates the concept of “smart contract”; its importance for economic activity is noted, the advantages and disadvantages associated with its use are highlighted. The author notes the possibility of rational use of smart contracts as an integral element of the classic contract for simple transactions.
ISSN 2411-118X (Print)