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Russian Law Journal

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Vol 3, No 3 (2015)
https://doi.org/10.17589/2309-8678-2015-3-3

Chief Editor’s Note

Articles

8-45 2240
Abstract

This paper focuses on the last indirect coercive measure introduced by the Italian and Russian legislation. After a general overview of the coercive measures already known to Italian law, also from an historical perspective, this paper identifies – through a parallelism commonly followed between the astreinte under Art. 114(4)(e) of the Italian Administrative Procedure Code and those under Art. 614-bis of the Italian Civil Procedure Code – the main traits of the new rule as to conditions, calculation of the amount due and beneficiary of the payment.

The author’s intention is to investigate the rationale of Art. 114, dealing with the issue of its applicability to obligations having a monetary content, so as to assess the actual possibility to make a complete parallelism between the two types of astreinte at issue: those for administrative proceedings and those for civil proceedings.

In contrast to the Italian experience, astreinte in Russian civil and administrative judicial proceedings is not directly regulated by procedural legislation. Astreinte unexpectedly appeared in the case law of commercial courts in 2013 and was / became widely discussed by scholars. From June 1, 2015, the institute quite similar to the astreinte was introduced by the Civil Code of the Russian Federation.

The authors mean to reveal the nature of the astreinte and scope of its application both in civil and administrative judicial proceedings.

46-82 7345
Abstract
Economic and political instability has become a characteristic of many societies around the globe. Recent examples revealing the volatility of the current state of affairs include the trade restrictions imposed by the Russian Federation in August 2014, and currency fluctuations experienced by many countries, including Russia and potentially Greece. In this situation, one may wonder whether contract law has a solution to offer to the parties affected. Traditionally dominated by the pacta sunt servanda principle, jurisdictions made their own choices. This paper analyses approaches adopted by Russian, German and French law in response to situations of force majeure (trade embargoes)and unforeseen change of circumstances (currency fluctuations). In search for an explanation of each given approach, we reviewed historical arguments, as history played a crucial role in the formation of German and French responses, though in a completely different way. Whereas Germany, heavily affected by the cataclysms of the World Wars, was eager to adopt a lenient view on the possibility of the judicial revision of contracts, France never gave up its suspicion of court interventions. As legal preferences are often connected with cultural factors, we looked at distinct cultural traits of the societies at issue, by using the Hofstede index. We realized that there could be compelling cultural reasons why France and Germany are situated at opposite poles, while Russia is somewhere in the middle. Lastly, we took into account considerations derived from law and economics, arguing that narrowly construed court intervention might be economically justified in cases of impossibility and impracticability, as ultimately decreasing transaction and risk-appraisal costs.
83-109 1030
Abstract
Recently, Russia has been struggling to reverse plunging birthrates by adopting anumber of radical policies designed to encourage women to have more babies. The breakup of the Soviet Union and the ensuing economic and political instability prompted a decadelong decline in fertility rates, which dropped from 1.72 children per woman in 1991 to 1.2 children per woman in 2000. As a result, Russia lost nearly 6 million inhabitants. Relative stability and high oil prices in the decade that followed saw fertility rates settle at around 1.6 children per woman in 2012 and 1.71 children per woman in 2013, which is still below the needed replacement rate of 2.1 children per woman. This article focuses on the maternal capital subsidy for the birth of two or more children that took effect in 2007 and will run until 2016. It deals with two questions. The first question is, why has maternal capital fraud been so prevalent? The second question is, does maternal capital make a difference when it comes to increasing Russia’s birthrate? In exploring these questions, the article considers the future of maternal capital subsidy, specifically focusing on the social, economic, and political outcomes of the current Ukraine crisis and Russia’s annexation of the Crimean peninsula. The article concludes that the overly restrictive design of the maternal capital program provides afertile ground for fraud and that this subsidy fails to address the many complex causes underlying Russia’s declining fertility rates, thus limiting its effectiveness. Mothers and their families want the maternal capital money here and now because they do not believe that the money will be available in the future (in part, such belief is justified by the turbulent history of the 1990s and several bank collapses). The other side of the coin is that the state does not trust its citizens to use maternal capital money in a responsible fashion and has thus prescribed very limited usages for these funds. This lack of trust on both sides creates fertile ground in which fraud and corruption flourish.
110-125 1466
Abstract
The subject-matter of this article is the ‘systemacity of law’ concept and its methodological feedback. Continuing a series of articles on this subject, the author focuses on the internal rationality of claims about the systemic character of law. This rationality is embedded in the legal thinking of Modernity and reveals itself in the belief in the rational nature of law. According to this style of legal thinking, such internal rationality impedes law from being chaotically or randomly organized and structured. Therefore, law shall have a reasonably organized structure, even if in reality it does not have such a structure. In this way, the belief in an internal rationality of law transforms itself into the requirement for the rational organization of law. These two elements – belief in an internal rationality and the requirement of the rational organization of law – are the pillars of the dogmatic conception of law which was established in Begriffsjurisprudenz of the 19th century and which still holds sway over contemporary continental legal thinking.

Comments

126-141 2215
Abstract
In response to the Russian Federation’s purported ‘annexation’ of Crimea and the conflict between separatists in the Donbass region and the central government of Ukraine, the United States, the European Union, Japan, and Australia, the principal countries, have imposed economic sanctions upon Russian officials, firms, and private individuals. The economic sanctions imposed upon the Russian Federation violate public international law on three grounds: 1) lack of authorisation under the United Nations Charter; 2) inapplicability of Art. XXI GATT (‘Security Exceptions’); and 3) lack of legal authority based on the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. Fidelity to the ‘rule of law’ requires an immediate withdrawal of all economic sanctions. By contrast, the international community ‘ought to’ condemn Ukraine’s indiscriminate killing of innocent citizens living in the Donbass region and support the efforts of the Russian Federation to provide humanitarian aid to the region.
142-151 1463
Abstract

The article deals with the conflict between the provisions of the Criminal Code of the Russian Federation, where the minimum amount of the bribe is not defined, and the provision of the Federal Law ‘On State Civil Service of the Russian Federation,’ which, on the one hand, contains an absolute ban on civil servants receiving gifts and other types of remuneration, while, on the other hand, Art. 575 of the Civil Code of the Russian Federation admits a possibility for civil servants to receive gifts of an amount not exceeding 3,000 rubles in the performance of their official duties. This legal conflict necessitates conceptual clarification of such notions as ‘gift’ and ‘bribe.’

The authors underline that a determining factor for establishing the legitimacy of the customary gifts given to government officials is whether the gifts were accepted by the officials, while executing their duties, without a prior agreement for an action or inaction. It is noted that the limitation of a gift’s maximum value to 3,000 rubles, as stated in the Civil Code of the Russian Federation, creates an opportunity to abuse or evade the law.

The article presents a comparative study of European laws, more specifically dealing with the institute of donation, and Russian legislation regarding the possibility of civil servants receiving gifts. German law does not single out ‘customary gifts;’ it simply does not admit the possibility of giving gifts or the right to receive gifts by German civil servants.

The authors have developed proposals to improve the legal regulation concerning the giving of gifts to government officials in Russia.

Book Review Notes

152-157 748
Abstract
Reviewed book: William R. Spiegelberger, Enforcement of Foreign Arbitral Awards in Russia (Juris Pub. 2014).

Conferences Review Notes

158-167 1971
Abstract

In March 2015, the Polish Academy of Science, the Institute of Law Studies, and the Centre for Polish-Russian Dialogue held a conference entitled The Case of Crimea in the Light of International Law: Its Nature and Implications. The conference took place against the backdrop of the first anniversary of Crimea’s ‘annexation’ / ‘reunification’2 by Russia, providing an opportunity for international legal scholars to discuss the legality of these events.

Over two days, the conference saw around 35 presented papers on issues following five general themes: self-determination and secession; use of force, aggression and armed attack; the international community’s response to the situation in Crimea; non-recognition of unlawful situations; and international state and individual responsibility in the case of Crimea.

The invited academics and practitioners who spoke at the conference came from Austria, Belarus, Bulgaria, France, Germany, Italy, Japan, Poland, Russia, Switzerland, The Netherlands, Ukraine, UK and USA.

This review will explore selected presentations on the key issues of selfdetermination, secession, use of force and State responsibility.



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