Contents of issue # 3/2015

Local Self-Government: History and the Modern Practice  Pdf 16

V. I. Vasil’ev

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: const@izak.ru

The article is devoted to the twenty-fifth anniversary of the USSR Law “On general principles of local self-government and local economy in the USSR”. Adopted on April 9, 1990, the Law represents the first legal document that legally sets forth democratic decentralization of the Soviet state by creating a new political institute of grass-roots democracy which is closely linked to territorial communities. The Law was created in the period of radical changes in the social life, “at the crisis point of eras” and reflected the features of the Soviet system that was receding into the past. But in the focus of the Law there were the new rules, which clearly demonstrated visible signs of the newly emerging social relations, the parameters of the mechanism of the new government. The article focuses on the history of developing the fundamental ideas of local self-government. Although some legal definitions contained in the Law, have lost its relevance, its core ideas could not become outdated and serve as guidelines for present-day establishment of local authorities in the Russian Federation. For example, determinative participation of the population in the solution of issues of local significance, territorial determinancy of local self-government, economic independence of local authorities, municipal property, the balance between powers and their financial support, organizational independence of the local government. The article analyzes how these principles are currently being implemented.

Keywords: local self-government, reform, grass-roots democracy, decentralization, organizational autonomy, principles of organization.

DOI: 10.12737/7784

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Development of the Legal Status of the Armed Forces of the People's Republic of China  Pdf 16

N. M. Bevelikova, P. V. Troshchinskiy

N. M. Bevelikova, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: foreign5@izak.ru

 

P. V. Troshchinskiy, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: troshc@mail.ru

The article is devoted to the characteristics of the main legislative acts that regulate the activities of the PRC armed forces, and of a number of political guideposts that determine the lines of the Chinese army development for the future. The authors touch upon the modern character of the Chinese defense sector, as well as legal issues of forming a new structure of the China’s industrial complex, which made the transition from the sectoral system of industry to the enterprise system of industry. The article identifies the dominant trends of governing the services of the armed forces, regions, main directorates and military research and educational institutions in China. Within the framework of this article, the authors emphasize the focus areas of the Chinese People's Liberation Army modernization, the analysis of which permitted the authors to highlight the future vectors of the PRC military policy and its legal coverage.

Keywords: China, China’s armed forces, national defense.

DOI: 10.12737/7795

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On the Model of the Global Justice Radical Autonomation in the Russian Federation  Pdf 16

M. I. Kleandrov

corresponding member of the Russian Academy of Sciences, doctor of jurisprudence, professor

1, Senate square, Saint Petersburg, 190000, Russia

E-mail: mklean@ksrf.ru

The author justifies the advisability of radical reformation of the global justice system by granting higher autonomy to it and transforming it into a set of specialized judicial bodies. The autonomy is supposed to manifest itself in all three elements of the justice mechanism — judicial, arbitral (of the first, appeals and cassation instances) and judges’ status, while specialized jurisdiction would primarily affect about 30 million of Russians (country and small town inhabitants), essentially involved in commercial activities as unregistered entrepreneurs.

Keywords: global justice, granting higher autonomy, specialized jurisdiction, unregistered commercial activities, judicial remedy.

DOI: 10.12737/6583

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On the Proposal for Reforming of the Global Justice in the Russian Federation through “Radical Autonomation”  Pdf 16

V. M. Zhuykov

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: theory@izak.ru

The author proves the inadmissibility of the transformation of the global justice through its “autonomation” (separation from federal justice and locking-in at the level of constituent entities of the Russian Federation) suggested in the article of M. I. Kleandrov “On the Model of the Global Justice Radical Autonomation in the Russian Federation” (Journal of Russian Law. 2015. No. 3. P. 31—42), as well as groundlessness of the statement on deprivation of the right to judicial protection for more than 30 million Russia’s citizens, who carry out entrepreneurial activities as unregistered entrepreneurs. The author defends the suggestion on the transfer of civil cases involving individual entrepreneurs from arbitration courts to general jurisdiction courts with the purpose of providing individual entrepreneurs with the access to justice. The author justifies the necessity to preserve currently existing procedural and organizational contacts between justices of the peace who are judges of the constituent entities of the Russian Federation and federal courts (district, regional, the Supreme Court of the Russian Federation).

Keywords: global justice (justices of the peace), autonomation, judicial remedy of rights and freedoms, judicial reform.

DOI: 10.12737/7796

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Jurisdiction over Corporate Disputes of Arbitration Tribunals (to the Discussion on Draft Laws, Intended for Reforming Legislation on Arbitration Tribunals)  Pdf 16

A. V. Gabov

doctor of jurisprudence

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: gabov@izak.ru

Article is devoted to a discussion issue arbitrability corporate conflicts. The emphasis in the study made on the analysis of draft laws developed by the Ministry of Justice to reform the law on commercial arbitration. Article underlines that the establishment of the possibility of considering commercial arbitration corporate conflicts is possible only if certain conditions are met. In particular: a clear and unambiguous guidance on the law on which disputes are disputes corporate; strict compliance with the legal position of the Constitutional Court that the appeal to the Commercial Arbitration — a way of resolving civil disputes arising out of contractual freedom; the establishment of a special procedure in the law dealing with such disputes commercial arbitration, which takes into account the fact that the decision on a particular dispute may relate to an unlimited number of third parties, the participants of corporate relations. Indicates that the prepared draft laws can not be supported and requires full processing.

Keywords: commercial arbitration, arbitrability, jurisdiction, corporate conflict.

DOI: 10.12737/7854

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On Certain Issues of Limitation Period  Pdf 16

A. M. Erdelevskiy

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: amarer@yandex.ru

The article brought to readers’ notice considers certain issues, related to the legal institute of a limitation period. The purpose of the research was the analysis of the norms of the Civil Code of the Russian Federation, which were considerably altered in the process of the current reform of the Russian civil legislation. The research was conducted on the basis of comparison between the norms, referring to the limitation period in their actual and previous editions, taking into account the relevant court’s practice. In particular, a detailed consideration was given to Article 199 of the Civil Code in its new edition, a number of problems were disclosed, which may arise in the court’s practice in connection with the application of this norm. Also an evaluation is given to Article 200 of the Civil Code. Special attention is devoted to the application of the limitation norms to the requirements, related to the invalidity of legal transactions. Materials of the Russian court’s practice, referring to the limitation norms are critically evaluated. As a result of the conducted research the conclusion was drawn on certain deficiencies of the norms in the research area and on the necessity of the legislation and court’s practice improvement.

Keywords: limitation period, civil legislation.

DOI: 10.12737/7878

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Legal Regulation of Relations of Exploitation of Choreographic Compositions  Pdf 16

V. M. Smirnova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: civil@izak.ru

The article describes the most common means of using the choreographic works-reproduction, distribution, public performance of the work. Although each of these means has a certain specificity, their legal regulation has the general rule that requires the permission of the owner to use the work. Almost all new means of using originally exist under the right of reproduction, and then becomes the independent right. The right of reproduction is not directly related the choreographic work to be available to the public; it is always involves the continuation of actions falling within the other copyrights, creates possibilities. The right of distribution is the right to be available to the public by providing the copies. Owner’s permission must be obtained, whether distribution is compensated or free of charge. Thus, the choreographer may refer the exclusive right of distribution on fixations, designs, sketches, drawings, have not received on the stage, to another person. Using the choreographic work connected with the mean of public performance, because the owner intention is to present the creative result to other persons by effort and forms of expression. According the legislation, public performance is not imply the immediate contact of the public with the work. Public performance also reproduce with the technical means while the audience is expanding.

Keywords: copyright, choreographic work, means of using the work, author, reproduction of work, distribution of work, public performance.

DOI: 10.12737/7877

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Prospects and Directions of Development of the Forest Legislation of the Russian Federation  Pdf 16

Yu. I. Shupletsova

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: murrmel@mail.ru

The article deals with the legal protection of forests and improving the legal regulation of forest management in Russia. It is focused on the Forest Code of the Russian Federation including amendments and supplements. Forests belong to one of the main natural resources of the Russia and of the world. The state regulation of forest relations acquires the great importance in terms of the forestry reforming. Special attention to the improvement of the legal regulation of forest management is associated with the most urgent problems of the application of the Forest Code of the Russian Federation. First and foremost problems in forest legislation are the lack of forests protection against the fires, numerous ambiguities in the questions concerning disposition of the linear forests objects, improvement of forest protection, forest supervision and control, lack of clear delimitation of between the Russian Federation and its subjects in the field of forest management, the imperfection of the procedure of forest auctions, the need to strengthen the legal barriers to illegal chopping and export of timber. The main recent changes in forest legislation of Russia are analyzed and the proposals about the directions of its further improvement are drawn.

Keywords: forest, forest law, forest legislation, forest using, forest property, forest lease, wood.

DOI: 10.12737/7882

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Public Law Restrictions for the Use of Common Use Lands  Pdf 16

A. P. Ushakova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: apushakova@mail.ru

The legal regime for common use lands (the lands that can be used by any party for the purpose of lodgment and movement) implies the establishment of considerable restrictions for the use of such lands: their utilization strictly for the intended purpose and prohibition on privatization of the land plots that form part of such lands. Non-imageness of the legal regulation of jural relations related to the abovementioned restrictions is in many cases the cause of infringement of citizens’ rights and failure to observe the public regime for the lands. This article aims to offer interpretation of the law norms that permits to better reveal the essence of the law, including that in regard to certain most problematic cases. On the basis of the suggested interpretation and the analysis of the law enforcement problems, the focus areas of legislation improvement were suggested.

Keywords: common use lands, common use territories, red lines, ban on privatization of land plots, purposes of the use of the lands, public property.

DOI: 10.12737/7881

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Criminal Responsibility of Legal Entities for Corruption-Related Crimes  Pdf 16

V. P. KASHEPOV

doctor of jurisprudence, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: crim@izak.ru

The article examines certain peculiarities of economic crime as a specific manifestation of organized crime, the contents and manifestations of corporate crimes, and determines the grounds for and means of criminal prosecution of legal entities. The article analyses characteristic features of the objective and subjective aspects of the elements of crimes of corporate subjects, sources of the international legislation on legal combating the crimes by legal entities. The article looks into the problems of the doctrine on criminal responsibility of legal entities and conditions for formation of the mechanism of criminal and legal combating such area of crime in the sphere of economic activity, as corruption acts by legal entities, and justifies the need for the division of responsibilities between functionaries - natural persons and legal entities. The article investigates peculiarities of legal proceedings for legal entities’ prosecution, provision of procedural guarantees for the rights and legitimate interests of legal entities when applying measures of procedural compulsion, reasonability of the determined criminal-legal enforcement actions.

Keywords: economic crime, corporate offense, legal entities, responsibility of legal entities.

DOI: 10.12737/7880

 

The increased dynamism of the formation and sophistication of new public relations and scientific-technical relations gives rise to socially dangerous phenomena, constituting threat to modern public and political system of the Russian Federation. Among those there is corruption as a type of lucrative crime that adversely affects the economy, political stability, undermines the authority of the state power, democratic institutes, and ethical values, and inflicts damage to sustainable social development and legal order.

At the same time, the issue on the nature and level of social danger of individual manifestations of economic crime and efficiency of methods for coping with it has become one of the discussion issues of the topic on the fight against economic crime. In this context, interest has quickened in the problem of validation in the criminal and criminal procedural law of the institute of criminal responsibility of legal entities, measure and level of social danger of corporate crime, the necessity to improve legal mechanisms in combating crime manifestations. In particular, in literature, understanding of the essence of the institute of a legal entity, interrelation between administrative and criminal responsibility of corporate subjects of economic crime stirs up disputes.

Taking the above said into the account, the discussion in press and in the Internet of the draft Federal Law ‘On amendments of certain legislative acts of the Russian Federation due to introduction of the institute of criminal responsibility for legal entities’ (hereinafter – ‘the draft law), submitted to the State Duma attracts attention.

The scientific literature understands corruption crime as a category of law violations, embracing a series of criminal offence related to providing by natural persons and legal entities, criminal groups and communities of additional remuneration, various services, securities to public officers, officials, representatives of legislative and judicial authorities, involved in the use of the above mentioned possibilities, and also their criminal retaliatory measures to accommodate customers – natural persons and legal entities, criminal groups and communities. The dynamics of the crime, its status, and structure are to the full extent predetermined by qualitative and quantitative measures of lucrative crime, which is more and more characterized by sophisticated methods and forms of criminal activity. Criminal orientation of commercial activity continues to amplify. Consequently, this type of crime acquires a nature that is more and more dangerous, sophisticated by the way of its commission and good organization. Corporate crime, as a type of organized crime, with participation of economic entities is gaining ground. According to some reports, among the most wide-spread types of corporate crime in Russia there remain illegal asset allocation, bribery and corruption, cyber terrorism and tampering with accounting records. The group on financial investigations established the below results following a survey among small and medium business enterprises in Russia: 37% of the polled companies suffered from economic crimes, and moreover, at least 10 times each[1].

The crimes in questions belong to the category of acts committed in the sphere of entrepreneurship. The incidence of these offences, their criminal formalization allows mentioning some of their characteristic features:

  • they are committed directly in the process of entrepreneurial activity (what is more, their organizational forms are realized by legal entities established and functioning legally and by proper means, i.e. criminal activity is effectuated under the cover of legal entrepreneurship);
  • the majority of crimes are committed by corporate subjects of entrepreneurial activity (legal entities), which should be brought to criminal responsibility alongside with natural persons;
  • in the process of entrepreneurial activity criminal methods are used for appropriation and distribution of economic benefits, which are constantly changing and improving;
  • motivation of these crimes is of a lucrative nature;
  • these crimes are not violent and in the majority of cases the number of victims is not determined;
  • during the commission of such crimes they identify specific and multiple objects of the offense;
  • natural persons, other legal entities and the state can be victims of such crimes;
  • crimes in this sphere are mainly latent, it is very difficult to exposure them, their uncovering requires the use of special investigative techniques potential.

Criminologists note the process of relative substitution in the sphere of lucrative crime of a primitive criminal by an intelligent, artful criminal who uses viable, sophisticated methods and forms of criminal activity[2].

In this context, the proposal to qualify among the subjects of corruption crimes, alongside with natural persons also legal entities, who unlawfully provide material and other values to persons empowered to fulfill state functions or to other persons similar to the above mentioned seems justified.

Let us note that after joining the global legal community, Russia must take into account international standards and recommendations related to criminal law methods of fighting against corruption crimes, including those committed by legal entities. A number of international legal documents, ratified by the Russian Federation, specially stipulate such legislative measures which can be required to ensure bringing legal entities to criminal responsibility for commission of criminal offences, involving active bribery, using the official position for lucrative purposes and money laundering, classified as such and committed in the interests of any natural person, acting in his private capacity or as part of a legal entity’s body with the leading position in this legal entity. Such criminal acts are committed through the execution of representative capacity on behalf of a legal entity or in realization of the right to take decisions on behalf of the legal entity or exercise of supervisory powers, and also through participation of such natural person in the above mentioned crimes as an accomplice or instigator. 

The responsibility of a legal entity does not exclude the possibility of criminal prosecution of natural persons who committed, incited to or participated in criminal corruption offences. Introduction of criminal responsibility of legal entities is considered to be an important form of combating the above mentioned types of crime[3].

In 2006 Russia ratified the Convention of the Council of Europe ‘About Criminal Liability for Corruption’. This document envisages criminal responsibility of legal entities, i.e. any entities with this status by virtue of the current national law, with the exception of the state or other state agencies acting in the exercise of public powers, and also international organizations[4].

At the same time international legal documents repeatedly indicate the necessity of observing national legal traditions in application of own criminal legislation, so that a legal entity which was found guilty in lucrative corruption crimes, was subject to efficient, coherent sanctions with deterrent effect, which includes criminal or administrative fines, and, probably, other sanctions, in particular: measures involving forfeiture to use privileges or assistance from public power; measures, imposing a temporary or permanent ban on carrying our commercial activity, placement under judicial supervision or dissolution by the court.

Some international documents specify corruption acts, which can be imputed to legal entities. For example, Art. 26 of the UN Convention Against Corruption of 2003 establishes that each State Party shall adopt such measures as may be necessary, to establish the liability of legal persons for participation in such corruption offences as bribery of national public officials, bribery of foreign public officials, bribery of public international organizations, embezzlement, misappropriation or other diversion of property by a public official; abuse of functions, illicit enrichment; bribery in the private sector; laundering of proceeds of crime; obstruction of justice.

Responsibility of legal entities can be criminal, civil or administrative. Assignment of such responsibility should not cause damage to criminal responsibility of natural persons, who committed the corruption crime.  The Convention recognizes knowledge, intent and purpose as mandatory elements of an offence. At the same time the guilt may be inferred from objective factual circumstances.

Federal Law of December 25, 2008 No 273-FZ ‘On Combating Corruption’ has become one of the core statutory documents, directly related to the improvement of anti-crime measures concerning legal entities in the Russian Federation. In accordance with this law, corruption shall be understood to mean abuse of functions, giving bribe, acceptance of a bribe, abuse of power, corrupt business practices or other illegal use by a natural person of his position contrary to the legally protected interests of the community and state for the purpose of receiving benefits in the form of money, values, other property or property-related services for himself or third parties or illegal allocation of such benefits to the indicated person or other natural persons, and also commission of the abovementioned acts on behalf or in the interests of a legal entity. 

In accordance with the Law in question, if preparation and commission of a corruption offence is carried out on behalf or in the interests of a legal entity, it is possible to apply sanctions to this legal entity in accordance with the Russian legislation.

Application of penalties to a legal entity for corruption offenses does not discharge a guilty natural person from liability for this offense, just like criminal or other prosecution of a natural person for a corruption crime does not discharge a legal entity from liability for this offense.

The stated statutory enactments only generally characterize legal regulation of legal entities’ liability for commission of corruption crimes.

Administrative legislation envisages the possibility of imposition of administrative sanctions (in case of establishing specific conditions) for entrepreneurs and their organizations for commission of economic offences. The use of administrative and legal instruments in this sphere expands and increases. But the realia of the crime situation in the sphere of economic activity require enhancement of efficiency in legal combating offense in economic sphere, application of criminal legal remedies to influence economic crime.

For a variety of reasons administrative influence only is not enough to compensate for the lack of criminal responsibility.

Taking into account the increased social danger of this type of organized crime in such corruption manifestations as corporate crime, it seems justified to put forwards the concept of formation of a special criminal law countering actions against the analyzed criminal acts.

Experience of global development of criminal law regulation indicates topicality of improving criminal legislation towards acquisition by national legislation of the theory on criminal responsibility of legal entities and establishment of a special criminal procedural and criminal-penal mechanism of its implementation. 

The necessity of a more profound regulation of legal entities’ responsibility presupposes setting up of the system of rules that form a complex of legal provisions establishing grounds for criminal responsibility of legal entities, determining attributes of organizations involved, types and forms of criminal law pressure for the purposes of crime prevention and suppression. 

The creation of such system will allow elimination of certain shortcomings of the current legislation on responsibility for legal entities’ crimes, committed in the interests of natural persons or other legal entities. At the same time one should not exclude the use of other legal instruments (civil-law, administrative-law) or possibilities of various organizations. Currently, criminal law pressure for such types of criminal acts is aimed only at individual natural persons, which evidently does not comply with the principle of fair criminal sanction. At the same time an organization can reimburse only tangible damage without establishing unfavorable consequences for the organization itself.

The danger of applying criminal responsibility for corruption crimes will motivate organizations to adopt more efficient control means over the activities of the organization’s managerial bodies, ensuring security of its activity, i.e. it should increase the preventive role of the criminal statute in the sphere of crime prevention.

Establishment of criminal responsibility of legal entities will allow bringing the Russian criminal law more in line with international standards. Creation in the national legislation of a legal mechanism for bringing legal entities to criminal responsibility will allow formation of legal conditions for exterritorial criminal prosecution of international organizations and foreign legal entities located outside Russia for the crimes, trenching upon the interests protected by the criminal legislation of the Russian Federation.

The absence of such legal instruments makes it impossible to repatriate illicit capital made on the territory of Russia and exported abroad, since in the context of the principle of separate criminal legal personality of legal entities, in order to reclaim this property and transfer it back to the complainant or confiscate it, it is necessary to obtain the court decision establishing the guilt of this organization (and not a natural person) in the transnational crime. It is necessary to note that legislations of the majority of countries with developed legal framework envisage the procedure of exterritorial criminal prosecution.

As previously noted, currently the Russian legislation envisages administrative responsibility of legal entities for specific acts (omission of acts), the commission of which is criminally liable for natural persons. This type of responsibility was expected to replace criminal responsibility. But the situation has come about when for the same act, committed by a natural person on behalf or in the interests of a legal entity, the cases are initiated and investigated in accordance with two types of judicial procedure: criminal and administrative.  Such procedure results in inefficient use of state funds. Different types of judicial procedure do not contribute to proper ensuring of observance of the rights of the trial participants. It seems that such legal status is inacceptable, when the statute determines one and the same act both as a crime and an administrative offense depending on the subject who committed it. The very possibility of such choice creates conditions for corrupt solution of the problem of responsibility.

It is necessary to take into account that as a rule social danger of an act is differentiated by the object’s features (social relations, infringed by the crime) and the objective aspect (acts) of the person(s) committing the offense. Participation in the crime event of a legal entity, whose will is aimed at the achieving of a criminal result, considerably increases social danger of the act since a collective subject has much larger financial, organizational and other capacity for planning, committing and suppression of a crime than an individual natural person or even a group of natural persons.

It is also necessary to take into account that compared to criminal proceedings, the possibilities of proving the guilt using administrative procedure tools are rather limited in cases on corruption offenses, as under administrative proceedings no operational investigations can be used.

The RF Constitutional Court, determining constitutional legal significance of operational investigations, indicated that this type of law enforcement activity, as related to restriction of the most fundamental rights and freedoms, can be applied only in detection and uncovering of crime. In the Court’s opinion, the use of operational investigations under administrative proceedings is inacceptable, since proof in cases on administrative offenses is about much less dangerous forms of unlawful conduct and the use of these tools will contradict Part 3 of Art. 55 of the RF Constitution, establishing the extent of limitation of constitutional civil rights and freedoms by the state[5].

It is also known, that administrative procedure compared to the criminal one, is carried out in accordance with a simplified procedure, due to the reduction of the guarantees of the right to defense. But as for the criterion of severity of sanctions applied to legal entities, they correspond to criminal penalties (in particular, the amounts of fines).

Thus, the solution of the problem of bringing to criminal responsibility of legal entities through the improvement of the legislation on administrative responsibility is not possible due to its specific nature (in particular, characteristic features of judicial procedure).

That is why, in our opinion, it is necessary to agree with the authors of the above mentioned draft law, that the solution of the problem of legal entities’ responsibility for implication in crimes of a corrupt nature, is possible through the transfer of socially dangerous acts committed by legal entities which are currently envisaged in the RF Administrative Offences Code, to the category of economic crimes. Establishment of the above mentioned institute will permit to efficiently counteract the use in criminal activity of fake organizations, other corporate entities without legitimate status. Implementation of economic activities through the use of such types of organizations contributes to economy criminalization, considerably increases entrepreneurial risks and decreases investment potential of the country’s economy.

Despite the fact, that these legal entities are used from the very beginning of their functioning for the purposes of crime committing or suppressing, they enjoy equal legal protection alongside with organizations with the proper legal status.   

Currently the Russian criminal legislation does not envisage the possibility of applying to such legal entities of any criminal law pressure measures for their implication in economic crimes.

Creation of a legal mechanism aimed at combating the above mentioned phenomena is the goal of legal developments in criminal and criminal procedural legislation, which deserves support. At the same time, the establishment of the institute of criminal responsibility and its comprehensive regulation with the subsequent inclusion as a separate section into the RF Criminal Code require a large-scale and diversified analysis, which is impossible in a magazine article. That is why we suggest dwelling only on some controversial problems and ideas of perception of the institute of legal entities’ responsibility and its implementation in the criminal legislation, which provoke opponents’ objections.     

For example, for the purposes of unification of principles of criminal responsibility for natural persons and legal entities, the draft law envisages that the provisions of the RF CC General Part, determining criminal law consequences of crime commission for natural persons, should be applied to legal entities, with the exception of cases when a special legal regulation of a legal entity’s responsibility does not envisage otherwise or when due to the subject matter of legal relations with participation of a legal person, general legal regulation is not applicable. 

Peculiarities of criminal responsibility and punishment of legal entities, accessory to corruption crimes, the order of their bringing to criminal responsibility should be reflected in the below stipulations in the RF CC General Part.

The provisions of the RF CC General Part, determining criminal law consequences of crime commission for natural persons, should be applied to legal entities, if the RF CC does not envisage otherwise. At the same time constituent elements for a criminally liable legal entity are identified for crimes committed within the territory of the Russian Federation. A legal entity established on the territory of the Russian Federation can be brought to criminal responsibility in accordance with the RF legislation. Punishable acts for a legal entity are indicated in the RF CC Special Part. But in our opinion, this list, proposed in the draft law, is unreasonably extended.

Foreign legal entities, international organizations or separate subdivisions are criminally liable for crimes committed outside the Russian Federation in accordance with the RF CC, if the crime is aimed against the interests of Russia, a Russia citizen, a legal entity established on the Russian territory.

Determination of a legal entity’s guilt differs from the principle of a natural person’s guilt, as established in Art. 5 of the RF CC. In accordance with the draft law, a legal persons is found guilty and is criminally liable in cases of culpable commission of acts (willfully or negligently), punishable for a legal entity in accordance with the Special Part of the RF CC; acts, performed on behalf of a legal entity by a person, empowered to perform such acts under the law or other legal enactment; commission of an act, punishable for a legal entity, definitely in the interests of the legal entity by a person holding a position in its governing or control bodies. At the same time the crime is considered to be committed in the interests of a legal entity, if one of the motives was acquisition as a result of this crime by a legal entity of benefits of a material or a non-monetary nature, including receiving of profit (increase in profits) or avoidance (reduction) of the amount of costs, losses.

The criteria of categorization of crimes punishable for legal entities establish the amount of fins.

Participation of a legal entity together with another legal entity in commission of a crime as an actual perpetrator, head for or accessory to a crime is considered to be a criminal complicity of a legal entity. Also, a legal entity is considered to be an actual perpetrator, if it commits a crime by using another legal entity which is not criminally liable due to its fabulousness or other circumstances, eliminating criminal liability in respect to natural persons. 

A legal entity, if it gives instruction to another legal entity to commit actions (inactions), punishable for a legal entity in accordance with the Special Part of the RF CC, is considered to be a head for a crime as well as a legal entity exercising legal or actual leadership over the actions (inactions) of the legal entity that committed a crime as an actual perpetrator.

The draft law proposes a rather large range of types of punishments, which courts can impose on legal entities, found guilty in commission of economic crimes, taking into account the nature and social danger of their acts, the gravity of the occurred socially dangerous consequences, on the basis of the assessment of sufficiency of measures, undertaken by the organization to prevent the crime, minimization of its negative consequences, and also information characterizing this organization (previous criminal record, socially beneficial activities, etc.)  

The following types of punishment can be imposed on legal entities found guilty in the crime: warning, fine, revocation of license, quota, preferences and privileges, revocation of the right to engage in certain types of activities, ban on activities on the territory of the Russian Federation, forced liquidation.

Warning, fine, ban on activities on the territory of the Russian Federation and forced liquidation should be imposed as main types of punishment, while revocation of license, privilege and also the right to engage in certain types of activities – as additional types of punishment.

Warning as a sanction for commission of an economic crime can be imposed on a legal entity that committed misdemeanor for the first time, and which did not entail damage to property. It should officially represent a public reprimand to the legal entity and its warning on inadmissibility of committing such criminal offences in future.

Revocation of license, quota, preferences and privileges should include extinguishment of the license, quota, and preferences, assigned previously to this legal entity, and can be imposed in relation to those licenses and quotas, which were used in commission of the crime.

Forced liquidation is an exceptional measure of punishment, which can be imposed on a legal entity, established on the RF territory, and also a foreign legal entity, an international organization who committed a grave or especially grave crime outside the Russian Federation against the interests of Russia.

The draft law envisages criminal law measures in relation to a dummy legal entity, indicating its attributes. A legal entity is dummy, if it is used by another legal entity or a natural person for the purposes of crime commission or suppression and does not possess organizational independence, as well as other mandatory attributes of a legal entity, envisaged by the RF civil legislation.

For the purposes of securing the principle of justice in apportionment of the burdens of criminal law pressure in relation to persons and organization, the draft law envisages the possibility of liberation from criminal responsibility of a natural person, who committed a minor or medium gravity offense for the first time solely in the interests of the organization and who either did not receive or was not receiving property benefits directly or indirectly. In this case only a legal entity should be brought to criminal responsibility. At the same time, the conviction of the organization in commission of a crime on the basis of the court verdict will imply a record of conviction for it for a certain period of time. The organization’s criminal record will be of importance for central and local public authorities in conducting privatization or placement of orders for the delivery of goods, performance of work, service rendering for the state or municipal needs.

In our opinion, the presented summary of the main characteristic features of the draft law on establishing the institute of criminal responsibility for legal entities and the order or bringing them to criminal responsibility allows judging on the amplitude of the law making and law enforcement tasks arising in case of the possible adoption of this draft law.

For example, the most serious obstacle for the adoption by the legislator of the concept of criminal responsibility for a legal entity is the solution of the problem of the subjective aspect of this collegial composition. The draft law forms the definition of the concept of a legal entity’s guilt on the basis of core provisions of the concepts of guilt adopted in foreign legislations of countries, which accept the possibility and admissibility of criminal responsibility for corporate subjects.

This is the perception of an anthropomorphic approach, when the guilt of a legal entity is determined by the guilt of a natural person, acting on its behalf. Such model of a legal entity’s guilt is currently realized in the Russian legislation on taxies and levies. In accordance with cl. 4 of Art. 110 of the RF TC, an organization’s guilt in commission of a tax crime is determined depending on the guilt of its functionaries or its representatives, whose actions (inactions) conditioned the commission of this tax offence. The draft law recognizes also elements of objectivistic trend in assessing a legal entity’s guilt, in particular, the theory of guilt of preceding behavior, which presupposes the admission of the organization’s guilt that it failed to ensure the proper level of corporate control over the activity of its management bodies and failed to do its best in undertaking the measures on observance of bans, the violation of which entails criminal responsibility.

In particular, as was already mentioned, the draft law proposes to find a legal entity guilty in a crime and criminally liable in cases of culpable commission of acts (willfully or negligently), punishable for a legal entity in accordance with the Special Part of the RF CC; acts, performed on behalf of the legal entity by a person, empowered to perform such actions (inactions) under the law, other legal enactment, agreement or power of attorney. At the same time the following fact is taken into account: the fact of commission of an act, punishable for a legal entity, definitely in the interests of the legal entity by a person holding a position in its governing or control bodies, and also intentional commission of an act, punishable for a legal entity, by other persons on the instruction, with the knowledge or approval of persons acted definitely in the interests of the legal entity.

The draft law also envisages certain specific features of the criminal procedural form of bringing a legal entity to criminal responsibility, which guarantee to the suspected or accused legal entity a certain volume of criminal procedural rights and guarantees, de facto corresponding to the rights and guarantees of a suspected or accused person or an affected person.

For example, a representative who can be selected by the legal entity itself or appointed by an investigator should exercise rights and obligations on behalf of the legal entity in the criminal proceedings. The representative’s participation in the criminal proceedings is mandatory. This stipulation is intended to avoid abusive practice on the part of law enforcement authorities and ensure steadfast observance of rights and legitimate interests of the legal entity.

The draft law refers proceedings on the cases on legal entities’ crimes to the competence of investigators from the RF Investigation Committee; they should be carried out in the form of a preliminary investigation.

Taking into account the difference between a legal entity and a natural person (name of the subject, ascertainment of a legal entity’s guilt in the crime) the draft law envisages certain particularities in preparation of the decision on the legal entity’s indictment as a defendant, a letter of accusation and a verdict. It is expected to introduce a new source of evidence: the legal entity’s plea against suspicion, accusation or a civil suit.

By analogy with the rights of natural persons, the draft law acknowledges the right of an unreasonably prosecuted legal entity to rehabilitation, including the possibility of compensation of property damage, business reputation damage, and also restoration of other rights, violated as a result of groundless prosecution.

In order to conduct criminal prosecution of the accused organizations, the possibility is envisaged for extraterritorial criminal prosecution of foreign legal entities and separate subdivisions of Russian organizations, registered under foreign jurisdiction. These provisions allow confiscation of criminally-obtained property on the balance sheet of the legal entity registered in a foreign state.

The draft law also envisages the possibility to single out a criminal case in a separate proceeding in relation to a legal entity when the natural person liable as a defendant who directly committed the crime of behalf of the legal entity or in the interests of this legal entity, is not identified, absconded during the investigation or trial. Sever of the criminal case in relation to a legal entity is only allowed under the condition that it will not affect the comprehensiveness and neutrality of the preliminary investigation and settlement of the criminal case. This mechanism will allow levying execution upon the criminally-obtained property.

It is also planned to introduce the mechanism for counteracting delayed deadlines of criminal proceedings through failure of the legal entity’s representative to appear before the investigator without valid excuse.

The draft law takes into account peculiarities of proving the circumstances related to a legal entity’s characteristics and those mentioned in Art. 73 of the RF CPC. Proving of these circumstances should be carried out with the below exceptions:

  • the following is established instead of the form of guilt and motives for committing criminal acts: a) circumstances  confirming that the crime was committed by a legal entity or in the interests of the legal entity; b) nature and amount of benefits envisaged by the RF CC, received by the legal entity as a result of the commission of the crime; c) measures undertaken by the legal entity to observe the bans, the violation of which entails criminal responsibility for the legal entity; d) measures undertaken by the legal entity to suppress the crime and neutralize its socially dangerous consequences;
  • instead of circumstances characterizing the personality of the accused, they establish information, characterizing the accused legal entity (previous criminal record, significance of the legal entity’s activity for the region, carrying out socially beneficial activities, etc.)

Thus, a brief overview of some opinions on the essence of the institute of criminal responsibility for legal entities and proposals on its legislative consolidation in the criminal and criminal procedural legislation allows hoping for the legislator’s favorable opinion towards the presented concept. Here it is instructive to recall the opinion of famous lawyer B.V. Volzhenkin, published back at the end of the last century: ‘There are grounds for believing that in the near future the issue on establishing criminal responsibility for legal entities will be once again put point-blank. It is unlikely that the Russian legislator will stay on the sidelines and fail to react to the noticeable trend on extension of corporations’ responsibility in foreign legislation’[6].

Modern authors have continually supported this position, and the examined draft federal law proves it[7].

 

[1] See ref.: Sukharenko A. Corporate Crime in Russia. Ezh-Yurist = Economics and Life - Lawyer, 2012, no. 27.

[2] See ref.: Luneyev V.V. Crime in XX century. Global, Regional and Russian Trends. Moscow, 2005, pp. 464, 470.

[3] See: Volzhenkin B.V. Criminal Responsibility of Legal Entities. St. Petersburg, 1998; Yegorova N. On Criminal Responsibility of Legal Entities for Corruption crimes. Human Resources Management. 2003; Nikiforov A.S. Legal Entity as a Subject of Crime and Criminal Responsibility. Moscow, 2003, pp. 86-90; Dodonov V. Responsibility of Legal Entities in Modern Criminal Law. Legal Order, 2006, no. 4; Biryukov P.N. On Criminal Responsibility of Legal Entities in International Law and RF Legislation. Topical Issues of the Russian Law, 2014, no. 5.

[4] See: Federal Law dated July 25, 2006. No. 125-FZ.

[5] See definitions of the RF  CC dated April 22, 2005, No. 198-O and dated July 14, 1998, No. 86-O.

[6] Volzhenkin B.V. Op. сit. P. 23.

[7] See ref.: Antonova Ye.Yu. Criminal Responsibility of Legal Entities for Corporate Crimes. Business Security, 2009, no. 2; Fedorov A.V. Introduction of Criminal Responsibility of Legal Entities as Anticipated Trend in the Development of the Russian Criminal Policy in the Era of Financial Economic Changes. Criminal Law in the Era of  Financial Economic Changes: Proceedings of IX Russian Criminal Law Congress  (May 29-30, 2014). Moscow, 2014, pp. 97-103.

 

References

Antonova Ye.Yu. Criminal Responsibility of Legal Entities for Corporate Crimes. Business Security, 2009, no. 2.

Biryukov P.N. On Criminal Responsibility of Legal Entities in International Law and RF Legislation. Topical Issues of the Russian Law, 2014, no. 5.

Volzhenkin B.V. Criminal Responsibility of Legal Entities. St. Petersburg, 1998.

Dodonov V. Responsibility of Legal Entities in Modern Criminal Law. Legal Order, 2006, no. 4.

Yegorova N. On Criminal Responsibility of Legal Entities for Corruption crimes. Human Resources Management. 2003.

Luneyev V.V. Crime in XX century. Global, Regional and Russian Trends. Moscow, 2005, pp. 464, 470.

Nikiforov A.S. Legal Entity as a Subject of Crime and Criminal Responsibility. Moscow, 2003, pp. 86-90.

Sukharenko A. Corporate Crime in Russia. Ezh-Yurist = Economics and Life - Lawyer, 2012, no. 27.

Fedorov A.V. Introduction of Criminal Responsibility of Legal Entities as Anticipated Trend in the Development of the Russian Criminal Policy in the Era of Financial Economic Changes. Criminal Law in the Era of  Financial Economic Changes: Proceedings of IX Russian Criminal Law Congress  (May 29-30, 2014). Moscow, 2014, pp. 97-103.

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On the Decriminalization of Manufacturing and Sales of Edged Weapons  Pdf 16

V. A. Zvyagin

PhD in law

Vladivostok Branch of the Far Eastern Law Institute of the Ministry of Internal Affairs of the Russian Federation

21, Kotelnikov st., Vladivostok, 690087, Russia

E-mail: mao79us@mail.ru

The article focuses on the issue of decriminalization of manufacturing and sales of edged weapons in the Russian criminal law. The social danger of such acts was analyzed. Law enforcement practice shows that in the process of crime execution edged weapons are rarely used. More frequently people use various items which objectively possess sufficient destructive ability but which are not edged weapons. The absence of statistics on the use of edged weapons as a crime instrument, as well as the lack of differences between edged weapons and items used as weapons in the classification of crimes is identified. The conclusion was drawn that the application or use of objects that are recognized as edged weapons, and items that are not recognized as such is of no legal significance for the qualification of the criminal action. The author justifies the need for exclusion of articles related to manufacturing and sales of the edged weapons from the criminal code. Conclusions are made on the basis of studying the materials of the Russian judicial practice and the results of surveys of investigators from internal affairs agencies and investigative committee in the Primorye Territory.

Keywords: edged weapons, manufacture, sale, decriminalization.

DOI: 10.12737/7879

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Legislative Support of Transparency of Public Authorities’ Activity  Pdf 16

O. A. Dement’eva

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: deola@mail.ru

The article analyzes problems of legislative enforcement of transparency of the public authorities’ activities. It also addresses such spheres of public activity that are important for the state and society, as budget and town planning. The article analyzes the dynamics of the provisions of the following legislations: budgetary legislation (procedures for the creation of the budgets’ operational and capital expenses, allocation of the special-purpose financial aid for capital expenses), and town-planning legislation (the order of drafting, discussion and adoption of documents for territorial planning and their amendments). The conclusion is drawn that in the past decade legal conditions for lesser transparency in preparation and decision-making by the public authorities were created at the federal level in the budgetary and town-planning sphere. To overcome these negative tendencies in the legislation it is necessary to establish not only clear transparent provisions regulating the order of decision-making, but also scientifically grounded substantive rules (such as, for example, minimum fiscal capacity standards, state minimum social standards in the public sector, state town-planning standards in the town-planning sphere). The presence in the legislation of the body of these rules will create legislative conditions for the public authority’s activities in the interests of the state and society, for the adoption of clear-cut and transparent decisions.

Keywords: public authority’s transparency, budgetary activity, town-planning activity, body of scientifically grounded substantive rules and rules of proceedings.

DOI: 10.12737/7856

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On Correlation between Public Services, Functions and Powers of the Executive Power Bodies  Pdf 16

A. A. Smirnova

PhD in law

Saint Petersburg Campus of the National Research University “Higher School of Economics”

17A, Promyshlennaya st., Saint Petersburg, 198099, Russia

E-mail: smirnowann@yandex.ru

The article analyzes the legislation in force as well as opinions existing in the legal science with respect to the interpretation of public services, functions and powers of the executive power bodies. The author notes the ambiguous and contradictory nature of legal regulation in the sphere of public services as well as the absence of a uniform approach to their definition in the Russian legal theory. The author also points out the drawbacks of the administrative reform measures related to the ambiguity in interpretation of the abovementioned terminology.

Keywords: functions, powers, public services, executive power bodies.

DOI: 10.12737/7853

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Directive on Self-Employed Commercial Agents in the Practice of the Court of Justice of the European Union  Pdf 16

N. V. Vlasova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: natasha.vlasova@rambler.ru

The article considers the main provisions of Directive 86/653/EEC on self-employed commercial agents in the light of their interpretation by the Court of Justice of the EU: the scope of the Directive, characteristics of commercial agency services, commercial agent’s remuneration, commercial agent’s right for indemnity or compensation in case of the agency contract termination. The author notes that preliminary rulings of the Court of Justice of the EU can be regarded as guiding lines for national courts of the EU member states in dispute resolution arising from agency contracts. The author draws the conclusions that the aim of EU agency services regulation is to protect commercial agents’ interests; that the Court of Justice of the EU interprets provisions of Directive 86/653/EEC as overriding mandatory rules; and that Directive 86/653/EEC is of great importance for further development of the contract law unification in the EU in “soft law” documents.

Keywords: harmonization, Directive, the European Union, the Court of Justice of the European Union, interpretation, agency contract, principal, commercial agent, remuneration, overriding mandatory rule.

DOI: 10.12737/7852

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