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Russian Law Journal

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Vol 6, No 2 (2018)
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https://doi.org/10.17589/2309-8678-2018-6-2

Articles

4-38 960
Abstract

The 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.

39-72 803
Abstract

In 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).

73-92 406
Abstract

The 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.

93-117 409
Abstract

As of 2015 Armenia, Belarus, Kazakhstan, Russia and (since May 2015) Kyrgyzstan have entered  into the Eurasian Economic Union (EAEU) with the ambitious goal of ultimately transforming it into  a “Eurasian Union” with a deeper confederative structure in the future. Parallels between this  regional integration project and the European Union integration process are emerging. But there  are also marked differences between them. The article highlights those parallels and differences in  order to assess the general prospects for harmonizing labor law among the member states and to  clarify how much of the EU experience in the harmonization of labor law may be applicable to the  Eurasian integration project. The completely different roots and ways to harmonize the national  labor law systems within the EU and the EAEU are also discussed in the article. The authors claim  that the approaches to harmonizing labor law in the two regions are mirror images of each other.While the EU project attempts to provide at least a partial common legal framework for certain separate aspects of legal regulation of labor among the very diverse national labor  law  systems, the EAEU currently refuses even to address the harmonization of national labor laws.  However, the national labor law systems of EAEU member states are already much more  homogenous than in the EU. Therefore, labor law harmonization in the EAEU may develop as a  consequence of its economic integration and single market. 

118-133 455
Abstract

The subject of the research in this article is the influence of Roman law on Russian civil procedure.  Roman law has undoubtedly had a huge impact on the development of civil legislation in many  countries of the continental legal system, in particular on Russian law. But the importance of the  institutes developed by Roman lawyers of different eras, has not received a decent assessment of  experts. In this article, the authors propose to the reader the concept that Roman civil procedure,  finally formed during the reign of Emperor Justinian, is the foundation for the development of civil  proceedings in Russia at different during key stages of its development. It is also suggested that  Roman law was indirectly received with the help of nineteenth-century German scholars. Full use of the potential of Roman civil procedure in Russian civil procedure is difficult, because in the Russian  legal science researchers have paid little insufficient attention to the correlation of such an  important stage in the development of Roman, Russian and the continental law. And yet the  theoretical legal basis laid by Roman law, well-developed by Roman lawyers, with procedural  institutions that have had a significant impact on Russian law. The degree of such influence on  Russian law in different periods of history varied. The institutions of the claim, representation in  civil procedure, as well as evidence and proof, were most affected by Roman law, although the  importance of other institutions of Roman civil procedure should not be underestimated. This  article is intended to initiate more fundamental analysis of the impact of Roman law on Russian civil procedure.

Comments

134-146 301
Abstract

The 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.

147-163 331
Abstract

The introduction of compliance management systems is becoming more and more important in  Russian companies. Initially limited to anti-corruption compliance and driven by foreign  extraterritorial legislation, corporate leaders are now considering the benefits of enhanced risk  management systems. From a corporate law perspective, the driving force behind this is the  business judgement rule. Corporate leaders should be encouraged to take reasonable  entrepreneurial risks without fearing liability. Therefore, by adopting compliance and risk  management systems corporate leaders will be able to exculpate themselves when business  decisions go wrong and losses are suffered. But the question is who will be the driving force in the  Russian corporate context: the executive director or the board of directors? This paper examines  two strands of domestic compliance regulation: anti-corruption compliance and the 2014 Code of  Corporate Governance. It shows that while there are grounds for the possibility that in Russia the executive directors will be the drivers of compliance, the greater likelihood is that the board of  directors will be collectively responsible. Important incentives for the day-today management of  the companies will therefore most likely be missed. 



ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)