Vol 4, No 3 (2018)

Various bills, concepts and approaches to the improvement of civil and legal regulation of relations in the sphere of the so-called «digital economy» are analyzed in the article. Their correlation with the already established and well-grounded elements of the mechanism of civil law regulation is estimated. The author comes to the conclusion that, within the framework of the so-called «digital reality», there is an unjustified confusion of some new social relations with basic interactions. The hopelessness of the legislator’s aspiration to extend the civil-law regime of things to the so-called «digital financial assets» is proved to be futile, they are proposed to be understood as actions on which the obligations rights arise. It shows the doubtfulness of the concept of total refusal to monopoly on the results of their intellectual work, which is proposed to be replaced with the idea of confidential objectification of the result of intellectual activity. As part of strengthening of civil-law protection of personal data (the so-called «large data»), it is proposed to designate as an object of civil legal relations not information, but actions to collect impersonal information.

The article analyzes the problems that arise when a super-high interest is levied from the debtor under the loan agreement, approaches are proposed aimed at solving this problem in doctrine  and practice. Critical assessments of legislation's new laws aimed at restricting usury is carried out. Purpose: to formulate a concept for the further improvement of Russian legislation with a view to limiting super-high interest in a loan agreement involving a debtor-citizen. Based on the consideration of judicial practice, legislation and doctrine, author's ideas for resolving the  problem of usurious interest are proposed. The author proposes options for interpretation, introduced into the Civil Code of the Russian Federation in the category «normally charged interest», supports the position formulated by the Supreme Court of the Russian Federation regarding the limitation of the collection of super-high interest by the specified term. At the same time, it calls for a balance between the principle of freedom of contract and the restriction of the rights of dishonest lenders. The conclusions are illustrated by examples of solving problems of superhigh interest in foreign jurisprudence and doctrine.

The article on the system level analyzes the development of the approach of the domestic legislator to the standardization of the issue about the scope, conditions and procedure of providing information about the joint-stock company to shareholders. Stressing the non-property nature of the right to information and the importance of its proper implementation (including the standpoint of protecting the interests of participants and effectively exercising other corporate rights), the author identifies and reveals the key stages in the evolution of normative and judicial positions on this issue, revealing a clear tendency to narrow information opportunities of shareholders. In the current state of affairs, special attention is paid to differences in the regulation of the shareholder’s right to information depending on the type of society (public or non-public) and difficulties in interpreting the term «business purpose». The author considers in detail the topical issues about the correlation of confidential information and information constituting a commercial secret, the extent to which the right to information is exercised (presence of the shareholder status, specificity of the requirement to provide information, etc.).

In this article we give the specifics of enforcement of self-regulating organizations’ social functions in the construction sector. It is proved that not only public authorities can implement social public functions. At present, there is a tendency of social components’ development in business with the participation of business professional associations, including self-regulating organizations in the construction sector. This research includes characteristics of such social public functions as regulating, security and controlling. Special attention is given to the security function. It is proposed that National Association of Builders must be liable for excluded members’ obligations regardless of transfer of funds on their accounts. This provision is offered to be fixed in Town Planning Code of Russia.

At the heart of this paper lies collecting of debts as a new type of business activity including collecting of consumer penalties. In this article the possibility of assignment of some consumer’s rights to an entrepreneur under the contract of assignment of rights is discussed. Author’s research concerns the doctrinal facets of assignment of money debts. Particularly the analysis of contract and positive penalty as a marketable money debts is at the stake of this article. The controversial issues of transfer of right to demand payment of consumer penalty from consumer to an entrepreneur are considered here. The author proves the acceptability of transfer of any consumer right in money debt from consumer to an entrepreneur. Author’s conclusions are based on the law doctrine and judicial practice which recognise lawfulness of separate assignment of penalty debt independently from the main contract. The latest decisions of Russian Supreme Court are given in this article.

The article discusses the international legal and constitutional foundations of restricting business activities. It has been established that such restrictions apply not only to freedom of contract, but also to land rights. One of the types of such restrictions on the rights of business entities are the special conditions for the use of land plots and the mode of economic activity within the boundaries of zones with special conditions for the use of territories. The reasons for not allowing land users to be informed in advance about the restrictions in the use of land plots and their parts existing in such zones are analyzed. Judicial practice was studied in relation to the compensation of losses to landowners caused by the presence of zones with special conditions for the use of territories. The difficulties faced by entrepreneurs in the implementation of special types of economic activities requiring the establishment of protective and sanitary protection zones are considered. The author has made proposals for the improvement of legislation in this area.

As modern period is characterized by the increasing penetration of corporate norms into family relations, more and more issues arise in the resolution of corporate disputes to which the marriages are participants. At the same time, disputes may concern not only the division of the «common business», but also the implementation by the spouse-participant of the legal entity of its corporate rights. The article considers one of these rights – the right to withdraw from the OOO. The author of the article tries to determine the legal nature of the will of the participant to leave the OOO in order to answer the question of the necessity, validity, legality and expediency of applying the provisions of Article 35 of the Family Code of the Russian Federation. Agreeing with the business nature of the nature of the will of the participant of the OOO, the author justifies the need to distinguish between corporate transactions «complicated by marriage», depending on the legal purpose of their commission. The article concludes that the deal on leaving the company is not a transaction on the disposal of shares in the authorized capital of OOO, since the main legal goal of its commission is, first of all, the exercise of the personal non-property right of the spouse to withdraw from the company. Critical assessment of the existing notarial and judicial practice on demanding a notarized consent of the company partner’s spouse upon the certification of the spouse’s application for withdrawal from the OOO. Relevant proposals for changing legislation are proposed by the author in the work.

In this article author considers about the interrelation and mutual influence of the source and form of the offense, as well as the source of legal liability and the forms of its realization on the basis of willed concept of law-making`s methodology. The classifications of types of offense`s source and form, the source of origin and realization of legal liability, the form of realization of legal liability, as well as the subforms (organizational and normative) of the liability’s procedural form are created. An attempt of systematic and synthetic approach to studying the source and form of the offense and the source and form of realization of legal liability is made. The author proposes to introduce these categories into the scientific circulation and consider them in the doctrine of offense and legal liability.

The article considers the issues of using both civil law contracts and employment contracts for registration of relations related to employment. In the literature and in judicial practice, many attempts were made to develop universal criteria for the delimitation of labor and civil law relations. But today, these boundaries remain unclear. The author reveals the main distinctive features of civil law and employment contracts. However, it is noted that it is difficult to distinguish employment contracts from civil contracts in connection with the presence of similar characteristics on the subject, rights and obligations and other elements. The legal consequences of substitution of labor contracts with civil law contracts are analyzed. Particular attention is paid to the problems of outsourcing and outstaffing contracts in the conditions of prohibition in the labor legislation of the using of agency work. The issue of prohibiting agency work is investigated. The author comes to the conclusion that employers in many cases prefer to enter into civil contracts, which is not prohibited by law. But the conclusion of such contracts is accompanied by the risk of recognition of the actually existing labor relations.

The article deals with the problems of current situation of preliminary investigation. The redundancy of inquiry as an unnecessary link of domestic criminal process, copying the preliminary investigation, is substantiated. It is indicated that there is no advantage in the procedural form of inquiry justifying its continued existence. The attempt to introduce a simplified inquiry into the criminal process as a method of procedural economy was also not justified due to the problems of proof. The proposal to transfer the domestic model of preliminary investigation to the unspoken “police inquiry” with the full refusal of the preliminary investigation, as the defense and the injured were removed from the evidence in pre-trial proceedings was critisized. It was proposed to base a preliminary investigation on the combination of a non-procedural “police inquiry” with a preliminary investigation. At the same time, in cases of obvious crimes, with the consent of the participants in the case, it is possible to resolve the issue of transferring the case to court bypassing the investigation. In complex cases, upon the will of the victim or the defense, a preliminary investigation should be made based on the independence of an investigator.

The article deals with the cases of limitation of constitutional right to the secrecy of phone and other negotiations permissible in order to provide witnesses’ security during crime investigation. The particular case of such limitation is control and recording of witnesses’ negotiations based on the rules of Article 186 part 2 of the Russian Criminal Procedure Code (CPC). The author differentiates the control and recording of phone and other negotiations as an investigative action and as a security measure on criteria of purpose, factual and formal grounds. The author compares both control and recording of phone negotiations and
wiretapping as the ways to receive information about realisation of post-criminal impact on witnesses and makes a conclusion about the identity of these actions from the point of their legal nature. The article encircles the problems of control and recording of negotiations as a security measure, reveals the discrepancy between some rules of criminal procedure legislation. The article presents the vast analysis of practical usage of control and recording of negotiations including the data of questionnaire survey of specialistpractitioners, the examples of judicial practice, the review and comparison of leading researchers’ opinions as well as authorial positions and suggestions about rectifi cation of Criminal Procedure Сode in force. Such amendments are necessary for elimination of founded contradictions, achieving of consistency between rules and increasing of effi cacy of witnesses’ security within criminal procedure.

In the article the problem of civil responsibility of self-regulatory organizations in the construction sphere in the context of relevant improvement of standard and legal regulation and innovations of the Russian legislation is analyzed. With the use of descriptive, comparative and legal, technical legal methods of a research, content analysis of juridical documentation the author carries out the analysis of existing norms concerning joint and subsidiary liability of self-regulatory construction organizations according to obligations of its members. The most problematic issues of legal regulation of activity of self-regulatory organizations in the fi eld of construction on ensuring responsibility of the members to the third parties are revealed. The analysis of legal practice in the fi eld of formation of indemnifi cation funds and ensuring civil (property) responsibility of self-regulatory organizations in the sphere of construction according to obligations of its members is also carried out. On the basis of systematization and the final analysis of a problem of the research the author makes a conclusion about need of further continuous monitoring and the detailed analysis of realization of standards of civil responsibility of self-regulatory organizations in the sphere of construction in practice as basis for assessment of effi ciency of the carried-out legislative innovations and improvement of the process of standard and legal regulation in the explored sphere.

The article is devoted to the characteristic of managing organization’s legal status as a multi-apartment housing managing subject. The author notes, that managing organization’s legal status has some features, which has a character of increased requirements. The purpose of increased requirements – is in ensuring effective work in very important and responsible sphere of multy-apartment housing management. The article touches upon the issue of licensing of managing organizations, examines the positions of researchers and practitioners on this issue and the correlation between licensing mechanisms and self-regulation. Also, the author offers classification of legal status features on internal (connected with organizational structure of subject) and external (connected with interaction’s features of subject with other parties) and in detail considers all the features. In conclusion, the author states that the introduction of certain mandatory requirements for managing organizations is necessary, but it is unlikely to solve all the problems in this sphere.

In the article the problems of realization of the right to remuneration for work for hire, the type and subjective composition of relationship, where the right is realizing are analyzed, different points of view on the issue of the amount, conditions and ways of paying the remuneration are described. The article deals with the issue of the allowability to include the author’s remuneration to his wage or the neсessity to pay in excess of the wage with extra payment. The proposals of establishing a fixed remuneration are established. The study of the matter of minimal remuneration for the employment work in comparison with the remuneration for the employment inventions is carried out. The author pays attention to the issue of establishing of the right to remuneration, to the compliance of the author’s right for remuneration when this relationship is established, and also to the allowability to realize this right by the heirs of the author of the work for hire.