Articles

This is a translation of an article by the German scholar Erich Berndt “Investigating Judge or Prosecutor?” published in 1931. The then version of the German Code of Criminal Procedure provided for two forms (or two stages) of pre-trial investigation: inquiry (“Ermittlung”) and preliminary investigation (“Untersuchung”). The prosecutor was in charge of the inquiry, while the preliminary investigation was in the hands of an investigating judge (a figure similar to the Russian judicial investigator). Such a pre-trial structure was characteristic of most continental legal systems at that time, but many jurists were critical of it. In Germany, the debate on this topic peaked in the 1920s. By the early 1930s, the opinion that the prosecutor’s inquiry should be the only form of investigation had become predominant. In light of this, E. Berndt’s article is interesting because it does not just express the author’s view of the problem, but summarizes the main arguments pro et contra. Today Germany is considered to be a textbook example of a country that refused a judicial preliminary investigation in favor of a prosecutor’s inquiry. At the same time, the experience of the German reform serves as an important reference point for many legal systems. Since the domestic legislator is also in search of an optimal model of pre-trial investigation, familiarity with the German discussion about this may be extremely useful for the Russian reader.

Historically, English criminal procedure is characterised by the role of private prosecution, which allowed each person to bring charges against any other person. A relic of the Middle Ages, it has nevertheless survived successfully to the present day, although it has undergone a number of significant transformations. Its remarkable resilience, despite its inability to serve as a full-fledged instrument of Crown criminal policy, is due to the fact that the ancient procedural form is constantly emerging with new uses. In the twentieth century there was a growing demand for it by commercial and non-commercial organizations who needed an instrument for the proactive prosecution (in public or private interests). Continental critics, who had earlier protested against the introduction of the English model of private prosecution into the criminal procedure of Germany or France, raised many objections against it, but the English history has shown that their fears were baseless. At the same time, the development of public prosecutions in England has greatly reduced the space for private initiative. Most of the procedural advances, among them the increased accessibility of criminal justice, were due to the expansion of the state.

Hybrid mismatch arrangements are means of structuring cross–border transactions which result into double taxation or double non-taxation due to differences in the legal qualification of the taxpayer’s status or the legal qualification of the type of income. Hybrid mismatches arise due to imperfection of legislative techniques and are often accidental, but in some cases hybrid mismatch arrangements act as a way of committing tax offenses, leading to base erosion and profit shifting. The key provisions against the intentional use of hybrid mechanisms aimed at tax avoidance are being specified at the level of national legislations. One of the problems arising out of such norms’ adoption is concluded in providing them with compliance to tax certainty principle, which acts as a guarantee of tax legislation application in accordance with the content of public interest laid down into them, and as the means of protecting the taxpayers’ reasonable expectations at the stage of law enforcement. This article analyzes the existing anti-hybrid mismatch provisions of the certain foreign tax legislations (on the examples of the United States of America, of the United Kingdom and of the members of the European Union) for their compliance with the tax certainty principle.

The article provides a comparative analysis of the key characteristics of preemptive terms in civil law, civil, arbitration proceedings, as well as in tax law. The definition of preventive terms, as well as their legal features, are not enshrined in legislation. However, acts of the Federal Tax Service, judicial practice, civil and financial and legal doctrines recognize them as a specific type of terms for exercising both civil rights and the rights of participants in tax legal relations. The admissibility of the reception of the civilistic approach to the substantiation of the essence of the pre-trial period in the tax process is substantiated. The author critically assesses the current judicial practice to justify the violation by the tax authorities of the deadlines for the exercise of power. It proves the presence of preventive deadlines in the tax process and the need for their strict observance by law enforcers. On the basis of doctrinal teachings and analysis of law enforcement acts, the main features of preclusive deadlines in the tax process and the goals of their legislative fixation have been developed. It has been revealed that it is advisable to establish the criteria for classifying a term as a preventive term from the analysis of the norms of the Tax Code of the Russian Federation, which imperatively regulate the consequences of violating the terms. Such consequences lead to the termination of the right of the tax authority to exercise its powers and to carry out the relevant legally enshrined procedural actions. The necessity of further study of the institute of terms in the tax process is substantiated. The task of the science of tax law, and subsequently the legislator, is argued, to develop and fix the legal regime of preventive deadlines in the tax process.

Due to current major changes of the geopolitical climate studying of international practices of providing financial environment, which differs from ordinary financial products of banks and non-banking financial organizations, is becoming increasingly important. There is a need to focus special attention to the financing based on etic standards of doing business, which are common for most countries of Middle East region. The exploration of one or another etic standards as well as its reflection in the domestic legal systems of such countries allows extending the legal boarders in order to create a strong fundamental basis for cooperation between the state and the society, as well as between the legal parties, keeping consistent the essential nature of the civil law. The analysis of the main characteristics of transactional models, which are consistent with the etic principles, is advisable to make on the basis of the transactions common for the countries of the Islamic region. This article shows the main distinctive feature of the legal and religious rules, as well as it shows the main idea of the Islamic law. This article also shows the legal environments for the implementation of the legal norms consistent with ethical standards into the legislation of the Russian Federation.

The article analyzes the role of legal science and education in the formation of the legal culture of the population, taking into account the tasks set by the Foundations of the state cultural policy. It is concluded that jurisprudence plays an important role in the formation of a high level of legal consciousness of the population and its national identity. Intensive legal education and the possibility of obtaining legal knowledge by a wide range of people will help to create a positive image of the state (including in works of art) and strengthen civil self-identity. The destructive activity of “unfriendly countries” can be overcome by strengthening traditional values, which form the basis of the constitutional system of Russia and are embodied in various legal institutions. The developed legal culture of the population will help to avoid socio-psychological dependence on external influence, will become the basis of unity and cohesion of Russian society, the unification of the multinational people of the Russian Federation. The authors of the article propose to popularize legal science and law enforcement practice, to promote youth movements in the field of patriotic education and legal education, to develop the system of legal education by organizing lectures, seminars, round tables, conferences in order to strengthen the spirit of unity, cohesion, friendship of peoples, as well as traditional values in society.

In this article, the author examines the historical heritage of the works of Sergei Mikhailovich Korneev, including the development of the topic of bankruptcy of citizens that he began in the cathedral textbook. The historical path of development of the legislation on bankruptcy of citizens in modern Russia is given: from the Federal Law of 08.01.1998 N 6-FZ “On Insolvency (Bankruptcy)” to the Federal Law of the same name of 10.26.2002 N 127-FZ and, finally, the Federal Law of 06.29.2015 N 154-FZ, which actually introduced the institution of bankruptcy of citizens and the Law on extrajudicial bankruptcy of citizens (Federal Law of July 31, 2020 No. 289-FZ). The difference between consumer and commercial bankruptcy is given; reveals the features of the implementation of constitutional principles in the process of insolvency (bankruptcy) of citizens. As part of the consideration of the principle of the social state, the problem of excluding the subsistence minimum for a dependent child from the bankruptcy estate and the problem of selling the only housing of the debtor are considered. A characteristic is given of the formed judicial practice of the Constitutional Court of the Russian Federation on the issue of limiting the executive immunity of the only housing, as well as the practice of the Supreme Court of the Russian Federation, which established the principles for the provision of replacement housing.

Economic categories in civil and business law are quite common. However, over the years, disputes have not subsided about whether these categories should be present in law, how these categories should be reflected in the rules of law, whether they should fully reflect the economic essence of these categories, and most importantly, whether economic categories serve as the basis for making legal decisions. The article brought to the attention of readers reflects the position of the largest scientists in the field of civil law and business law on the issues under consideration: Doctor of Law, Professor Korneev S. M., Doctor of Law, Professor Gribanov V. P., Doctor of Law, Professor Bykov A. G., Academician of the Russian Academy of Sciences Laptev V. V. and other famous lawyers. Such economic categories as fixed and circulating assets, fixed and circulating assets, depreciation deductions, cost accounting, state property as an economic and legal category, enterprise, economic mechanism and others are considered. Particular attention is paid to the relationship between economics and law, the impact of economics on law and law on the economy. Attention is drawn to the close relationship between economics and law with the social factors of modern society.

The scientific article provides a historical analysis of the doctrinal approach to the legal characterization of the right of operational management. Particular attention is paid to the scientific works of Professor S. M. Korneev and his position on the right of operational management as a subjective real right. The position of Professor S. M. Korneev is presented. on the distinction between the right of ownership and the right of operational management, which became the basis for the author’s conclusion that the subject of the right of operational management manages the property of the owner for the purposes that the owner sets for the first. The article touches upon the question of the possibility of transferring the powers of the owner to the subject of the right of operational management, the answer to which was given at one time by Professor Korneev S. M., who believed that the owner, transferring this or that power, does not transfer it completely. The author also examines the current problems of applying the norms of the civil legislation of the Russian Federation on the right of operational management, which in most cases take place in relation to private institutions. The question is raised about the subsidiary liability of the founder of the institution for the debts of the latter. It is concluded that it is necessary to revise the main features of the right of operational management in the new economic conditions, which are different from those that took place in the Soviet period of Russia’s development.

The article is dedicated to the memory of MSU Professor Sergei Mikhailovich Korneev in connection with the 100th anniversary of his birth. Grateful memory allows the author to turn over the pages of his life history, emphasizing the huge contribution to the training of students working at universities in various parts of our country today. With the versatility of scientific interests and the presence of numerous works, S. M. Korneev, according to the author, had a special attitude to the doctrine of state property law created by him. Having singled out the fundamental characteristics of state property law as an economic phenomenon from the works of Professor Korneev, the author made an attempt to search for their development in the works of modern foreign civilists. And this attempt was crowned with success, because on the pages of the publication it was possible to prove that the professor’s ideas, even if not in an absolute form, are making their way, demonstrating the development in the research of modern foreign authors.