KAZAN UNIVERSITY LAW REVIEW Volume 2, Winter 2017, Number 4
Journal President: Ildar Tarkhanov (Kazan Federal University, Russia)
Journal Editor-in-Chief: Damir Valeev (Kazan Federal University, Russia)
International Editorial Council: Russian Editorial Board: Sima Avramović Aslan Abashidze (University of Belgrade, Serbia) (Peoples’ Friendship University of Russia, Susan W. Brenner Russia) (University of Dayton School of Law, USA) Adel Abdullin William E. Butler (Kazan Federal University, Russia) (Pennsylvania State University, USA) Lilia Bakulina Michele Caianiello (Kazan Federal University, Russia) (University of Bologna, Italy) Igor Bartsits Peter C.H. Chan (The Russian Presidental Academy (City University of Hong Kong, China) of National Economy and Public Hisashi Harata Administration, Russia) (University of Tokyo, Japan) Ruslan Garipov Tomasz Giaro (Kazan Federal University, Russia) (University of Warsaw, Poland) Vladimir Gureev Haluk Kabaalioğlu (Russian State University of Justice (Yeditepe University, Turkey) (RLA Russian Justice Ministry), Russia) Gong Pixiang Pavel Krasheninnikov (Nanjing Normal University, China) (State Duma of the Russian Federation, William E. Pomeranz Russia) (Kennan Institute, USA) Valery Lazarev Ezra Rosser (The Institute of Legislation (American University Washington College of Law, USA) and Comparative Law under the Government George Rutherglen of the Russian Federation, Russia) (University of Virginia, USA) Ilsur Metshin Franz Jürgen Säcker (Kazan Federal University, Russia) (Free University of Berlin, Germany) Anatoly Naumov Paul Schoukens (Academy of the Prosecutor's Office (KU Leuven, Belgium) of the Russian Federation, Russia) Carlos Henrique Soares Zavdat Safin (Pontifical Catholic University of Minas Gerais, Brazil) (Kazan Federal University, Russia) Jean-Marc Thouvenin Evgeniy Vavilin (Paris Ouest Nanterre La Défense University, France) (Saratov State Academy of Law, Russia) KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 KAZAN UNIVERSITY LAW REVIEW Volume 2, Winter 2017, Number 4
Journal executive secretaries: Marat Zagidullin (Kazan Federal University, Russia) Jarosław Turłukowski (University of Warsaw, Poland)
Editor of English texts: Natalia Samoilova (the University of St. Andrews, Scotland)
Assistant to the Editor-in-Chief: Elena Bazilevskikh (Kazan Federal University, Russia)
Journal team: Rustem Davletgildeev, Ruslan Sitdikov, Ivan Korolev, Maxim Voronin, Marat Shamsutdinov, Ramil Gayfutdinov, Ivan Novikov, Iskander Asatullin, Durmishkhan Afkhazava, Nikita Makolkin, Murat Kamarov, Kamilla Khabipova, Alina Astafyeva, Anastasiia Bychkova, Olga Anisova, Tatiana Shishkina, Suyumbika Nigmatullina, Iuliia Ustkachkintseva.
«KAZAN UNIVERSITY LAW REVIEW» ISSN 2541-8823 (registered by The Federal Service The reprint of materials of the journal for Supervision of Communications, “Kazan University Law Review” is allowed Information Technology only with the consent of the Publisher. and Mass Communications in Russia Link to the source publication is obligatory. on 17 November 2016 The Publisher or the Editor’s office does not render (certificate number PI № FS 77-67763 information and consultations and does not enter (ПИ № ФС 77-67763)) into correspondence. Manuscripts can not be returned. The Founder and the Publisher Publication: are not responsible for the content of four issues per year (one issue per quarter) advertisements and announcements. Opinions expressed in the contributions are those Editorial office: of the authors and do not necessarily reflect the room 326, 18 Kremlyovskaya St., official view of the organizations they are affiliated KAZAN, 420008 Russia with or this publication. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
Dear Readers,
I would like to present for your attention the fourth regular issue of the Kazan University Law Review, final in 2017. This issue of the journal, which is now lying in front of you, presents articles on topical problems of theory and practice of Russian and foreign law. The opening article is written by our great teacher, Professor Boris Zheleznov, one of the authors of the Constitution of the Republic of Tatarstan, an outstanding scholar and lecturer of the University of Kazan (Russia). In his article, Professor Zheleznov elaborates on the history of formation of the modern status of republics in the 1990s in Russia. It is very valuable that this material is presented in the first person, from the point of view of the direct participant in the modern constitutional process taking into account the author’s own memories as well as the archival documents. The next article written by our colleague, a remarkable graduate of the University of Kazan and now the pro-rector and professor of Saratov State Law Academy, Evgeny Vavilin (Russia) is devoted to the fundamental question of the principles of civil law. It is very important that the article analyzes the content and functional purpose, the role of the main principles of civil legislation, identifies the problems associated with their non-compliance in the process of legalization and enforcement. Comparing the system of civil law principles of Russia and China, the author reveals the uniqueness of the two legal orders and the general developmental tendencies, analyzes the most urgent problems related to both the imperfection of the system of principles and the lack of a mechanism for their implementation in civil law relations. Of international nature are the science of notarial law and contiguous with it the civil procedural doctrine, which are very extensively presented in the article of the assistant professor of the University of Kazan Marat Zagidullin (Russia). In the Russian legal reality, the system of control over the activities of notaries and the institution of their responsibility has undergone significant changes in recent years. These changes are generally of positive nature and among others include the following: the Code of Professional Ethics for Notaries in the Russian Federation was approved, a multi-level system for reimbursing property damages and liability insurance, increased insurance amounts, increased criminal liability, etc. At the same time, there is a presumably large number of latent offenses by notaries performing inexpensive or insignificant notarial acts that is a consequence of the ineffectiveness of traditional means of control and KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 measures of liability of notaries provided by law. To solve the above problems, the author of the article suggests rather interesting solutions including the introduction at the legislative level of other, non-traditional means of control and responsibility of notaries, such as a unified rating system and detailed statistics of each notary’s activity and based on it a strict system of fines and other measures of responsibility, as well as a system of instant response to complaints from citizens and organizations. In the “Commentaries” section we present an interesting comparative legal study of our colleague from the Research Center of East European and Central Asian Law, the Faculty of Law and Administration of the University of Warsaw, Patrick Kalinowski (Poland), examining legal issues related to the real estate trade in Poland. As for the content of the article, it should be noted that in the introduction the author presents the concept of real estate trade within the framework of the doctrine of agricultural law and the definition of agricultural real estate. Then he shows the main institutions of real estate law comparing them to the institutions of civil law and others. Special attention is paid to specific norms of agricultural law related to the sale of agricultural real estate, which are perceived as controversial. The author refers to these provisions as more advanced provisions of the Constitution of Poland and the European Union. To complete the practical section of the current issue, we present “Conference Reviews” that contain materials of our colleagues from Kazan on the events held at the University of Kazan and University of Nanjing (China) in the autumn and winter of 2017: Review of the 13th International Scientific Conference “Derzhavin Readings” (Kazan Federal University , September 21-23, 2017, Kazan, Russia) and Review of the annual international symposium: “The development of the Rule-of-Law in the Processing of Modernization” (Nanjing Normal University, October 20-21, 2017, Nanjing, China ). Dear readers, the final issue of 2017 falls on New Year’s and Christmas holidays. Let me express my sincere gratitude for our joint work. We are glad to have all of you as our authors and readers and we hope to serve you in the new year as well. Have an amazing 2018!
With best regards, Editor-in-Chief Damir Valeev KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
TABLE OF CONTENTS
Damir Valeev (Kazan, Russia) Welcoming remark of the Editor-in-Chief ...... 3
ARTICLES:
Boris Zheleznov (Kazan, Russia) The historical formation of the present status of the republics in the 1990s in Russia...... 6 Evgeny Vavilin (Saratov, Russia) Principles of Civil Law of Russia and China...... 26 Marat Zagidullin (Kazan, Russia) Types of legal liability of the notary: actual problems ...... 42
COMMENTARIES:
Patryk Kalinowski (Warsaw, Poland) The outline of principles of agricultural properties trade in Poland...... 56
CONFERENCE REVIEWS:
Nikita Makolkin (Kazan, Russia) Nigina Nafikova (Kazan, Russia) Review on the XIII international scientifically-practical conference “Derzhavin Readings”...... 66 Aydar Gubaidullin (Kazan, Russia) Maxim Voronin (Kazan, Russia) Elena Bazilevskikh (Kazan, Russia) Legal science of Russia and China compare development vectors. Review of the international symposium on China and Russia: “The development of rule-of-law in the process of modernization”...... 71 KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
ARTICLES
Boris Zheleznov Doctor of Legal Sciences, Professor Professor of the Department of Constitutional and Administrative Law, the Law Faculty of Kazan (Volga region) Federal University
THE HISTORICAL FORMATION OF THE PRESENT STATUS OF THE REPUBLICS IN THE 1990S IN RUSSIA
DOI: 10.24031/2541-8823-2017-2-4-6-25
Abstract: The article is reviewing the historical formation of republics’ sovereignty status in the beginning of the XX century in Russia. The Declaration of the Russian republics on state sovereignty followed the Declaration on State Sovereignty of the RSFSR on June 12, 1990. The texts of republics’ declarations varied a bit, however, it is interesting to note that the Declaration of the Republic of Tatarstan, unlike of the other republics declarations, did not mention that Tatarstan is a subject of the RSFSR and had some other special traits. The adoption of declarations on state sovereignty in some republics took place in a complex struggle against national separatists. After getting the status of sovereignty, republics started procedures of adopting Constitutions and establishing Constitutional Courts. The author shows problems of new subjects of the Russian Federation in the beginning of their formation and consequences of some decrees of leading political leaders and contractual relationships of the republics within the Federation. Keywords: state sovereignty, status, republics, XX century, declaration, history, Russia
I. Declaration of the Russian republics on state sovereignty The Declaration of the Russian republics on state sovereignty followed the Declaration on State Sovereignty of the RSFSR adopted by the First Congress of People’s Deputies of the RSFSR on June 12, 1990, which, in particular, proclaimed the right of every nation Boris Zheleznov 7 to self-determination in the national and cultural forms which it selected. In fact, all of them were based on the ideas of the Russian Declaration1. The North Ossetia ASSR was the first of the ASSR of Russia – July 20, 1990 – who adopted the Declaration. Then, from August 1990 to January 1991, the Karelian, Komi, Tatar, Udmurt, Yakut, Buryat, Bashkir, Kalmyk, Mari, Chuvash, Chechen-Ingush, Tuva, and Kabardino-Balkarian ASSRs also did the same. In December 1990, Mordovia adopted the Declaration not on state sovereignty, but simply on the state and legal status of the Mordovian SSR, which contained a refusal of the autonomous status of the republic, and a similar act was adopted in May 1991 by Dagestan. In 1992, four autonomous regions: Adygea, Gorno-Altai, Karachaevo-Cherkessia, Khakassia, and Ingushetia, separated from the Chechen-Ingush republic, declared themselves to be the autonomous republics of the RSFSR. The texts of the declarations varied significantly, but they all were united by an unilateral refusal of the autonomous status and proclamation of the state sovereignty of the republics, unconditional recognition of land, natural resources and other resources on the territory of the republic as the exclusive property of its people, announcing the declaration as a legal basis for developing new constitutional and current legislation, conclusion of an agreements with the federation, the restriction of the operation of normative acts that do not correspond to its sovereign status on the territory of the republic, etc. However, there were also significant differences: for example, the Declaration of the Republic of Tatarstan, unlike declarations of the other republics, did not mention that Tatarstan is a subject of the RSFSR; the Republics of Tuva and Komi SSR declarations provided for the possibility of secession from the USSR and the RSFSR by way of a referendum. As for the form of the declarations, some were divided into sections (Buryatia), others – into articles (Yakutia-Sakha, Gorny Altai), yet others – into points (Bashkortostan, North Ossetia, Tatarstan, Komi, Chuvashia). Perhaps the briefest of all was the Declaration of the Republic of Tatarstan. On the question of whether the republic will be a part of the RSFSR, Tatarstan’s position seems to be the most consistent. It was determined by the fact that, in accordance with the USSR Law of April 26, 1990, which provided for a new order of delineation of powers between the USSR and the subjects of the federation, the autonomous republics were declared as subjects of the USSR, but, as it were, “second class”, i.e. they were not sovereign, without the right to withdraw from the federation and only with an advisory vote in the Supreme Soviet of the USSR. In addition, it turned out that the autonomous republic of Russia should be considered simultaneously as a subject of both federations – the USSR and the RSFSR, and this, of course, was a legal nonsense, not to mention that it was contrary to the constitutional legislation. The Republics of Russia, except the Tatarstan, in the declarations, as noted above, confirmed their Russian legal existence and practically did not react to the Law of April 26, 1990, while Tatarstan in this situation
1 See: Legal status of the Republic of Tatarstan. Kazan, Tatarstan Publishing House, 1996. – p. 7 KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 8 did not consider the possibility of mentioning its legal personality as part of the RSFSR in the Declaration; its Supreme Council raised a question of directly entering into the USSR as a sovereign union republic. Later, on July 5, 1991, the Supreme Council of Tatarstan also decided that the TSR as a sovereign republic, which had decided to sign the Union Treaty directly and independently, declared its right to full quota of seats in the Republic’s Council of the Supreme Soviet of the USSR. Thus, Tatarstan was the only republic that consistently and logically pursued a line to its full legal existence only in the USSR1. Adhering to the same logic and after the collapse of the Soviet Union, the Supreme Council of the Tajikistan Republic on December 26, 1991 adopted a Declaration on joining as a founder the Commonwealth of Independent States. This declaration was left without consequences2. As a result, after the collapse of the Soviet Union, Tatarstan was a republic whose legal existence in the Russian Federation was “in limbo”, which meant a particular urgency in concluding a bilateral treaty between the Russian Federation and the Republic of Tatarstan. The adoption of declarations on state sovereignty in some republics took place in a complex struggle against national separatists who advocated a complete secession from Russia. A serious situation then arose, for example, in Tatarstan, where nationalist associations manifested a great political activity, in particular, Ittifak and Azatlyk, created in the spring of 1990. Together with the most radical representatives of the Tatar Social Center (TSC), they called Russia”another state”, advocated for the withdrawal of all power-wielding agencies of the republic from the authorities of the federation, etc. A number of deputies represented these views in the Supreme Council of the Republic of Tatarstan. Numerous nationalist demonstrations were organized near the parliament building, in the cities of the republic. By the decision of the Presidium of the Supreme Council of the TASSR, a working group consisting of 17 people (politicians and scientists), was formed to prepare a draft Declaration; On August 13, 1990, the Presidium of the Supreme Council approved the draft and published it in the local press. This project was tolerant in relation to Russia in some positions, for example, it contained compromise provisions: Tatarstan is a subject of the renewed federations – the RSFSR and the USSR, and that “the republic promotes the implementation of union programs on its territory”3. However, during its consideration at the session of the Republic Supreme Council on August 30, 1990, the project was sharply criticized by radical deputies, that resulted in the formation of an editorial commission which changed its text. Ultimately the Supreme Council adopted a document which significantly differed in its content from the originally proposed text.
1 See: The Republic of Tatarstan: modern history, 2000, V. I – p. 265. 2 See: The Republic of Tatarstan: modern history, 2000, V. I – p. 267, 278. 3 Soviet Tatariya, 1990, August 14. Boris Zheleznov 9
The question of the nature of the declarations adopted at the turn of the 1980s and 1990s years by the allied and autonomous republics is of serious interest. According to the constitutional legislation of the USSR and the Union republics, the latter were considered to be sovereign states and had the right to freely withdraw from the USSR. But this right was purely formal, politicized, one could even say it had a propagandistic nature, and in fact until the late 80s, no one could think about its implementation. Therefore, after the Baltic republics had left the USSR, the remaining union republics, using the fruits of democracy provided by the restructuring that started, also began to adopt declarations on their state sovereignty. But at first they meant not so much the withdrawal from the union federation as the transformation of the legal fiction, which was their sovereignty under conditions of Soviet authoritarianism, into legal reality. In other words, the declarations on state sovereignty of the twelve union republics did not change anything in the constitutional field of the federation, they only confirmed the relevant provisions of the constitutions. As for the declarations on state sovereignty of the autonomous republics, their essence was different. Generated in many respects by socio-economic, political and cultural reasons, similar reasons for appearing of the declarations of the union republics, they, unlike the latter, contradicted all the constitutions in the country and marked a revolutionary break of the constitutional field. The republics, which were considered autonomous and did not have the right to withdraw from the federations, unilaterally established their new state status, declared their sovereignty and the need to change all constitutional legislation. What was the nature of the declarations of autonomous republics on state sovereignty? The question is arguable. In any case, even those republics (for example, Bashkiria), which in the text of declarations on sovereignty directly indicated that they consider these acts to be laws, nevertheless viewed them as program documents combining political, legal and ideological principles. Subsequent events showed that the points of these declarations (after a certain correction) still needed legislative consolidation, namely, in the constitutions and current laws of the republics. A number of points was not taken into account in the Constitution of the Russian Federation of 1993 and the current federal legislation. And the main provision that formed the essence of the declarations – about the state sovereignty of the republics – was rejected by the Constitutional Court of the Russian Federation1. Moreover, after dramatic decisions of the Constitutional Court of the Russian Federation, many republics began to accept acts that specified the nature of their earlier declarations, since they decided to remove from their constitutions a reference about the state sovereignty, or to “soften the conditions” for its implementation. Thus, Art. 2 of the Chuvash Republic Law on July 23, 2001, established: “... In connection with the adoption of the Constitution of the Chuvash Republic on November 30, 2000,
1 See: the acts of Russian Constitutional Court: Resolution on March 12, 1992 N3-P; Definition on June 27, 2000 N92-0; Definition on December 6, 2001 N 249-0; Definition on December 6, 2001 N250-0. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 10 and also considering that the Declaration on State Sovereignty of the Chuvash Soviet Socialist Republic, adopted by the Supreme Council of the Chuvash SSR on October 24, 1990, has the character of a solemn program statement defining the tasks and main directions for the development of the new Constitution of the Chuvash Republic, and at the moment does not have any legal consequences, the adoption of this act in the form of a law should be recognized as invalid and considered as a Declaration “1. The State Assembly (Kurultai) of the Republic of Bashkortostan solved the problem in a peculiar way. On January 27, 2005 it approved the modified text of the Declaration on State Sovereignty of the Bashkir SSR, which was originally adopted (October 11, 1990) by its resolution, excluding from it the mention that the Declaration has a force of law. Truly, not all the republics subsequently made adjustments to the understanding of the nature of their declarations on sovereignty by legislative means. For example, the issue of the legal nature of the Declaration on State Sovereignty of Tatarstan was resolved by the definition of the Supreme Court of this republic of June 17, 2004: having examined the statement of the Republic of Tatarstan Prosecutor on non-compliance with the provisions of the Constitution of the Russian Federation and the decisions of the Constitutional Court of the Russian Federation, p. p.1 and 2 of this Declaration, the Court found that the Declaration itself does not legally regulate anything without legislative implementation. Proceeding from this definition, the State Council of Tatarstan did not consider the necessity to establish new acts on the question of the legal nature of the Declaration of August 30, 1990. Therefore, it can be argued that the declarations of republics on state sovereignty, even if initially they were equated in the republics with laws, and somewhere were placed above laws, they were not legal acts by their legal nature, but they were the policy documents of a political and ideological nature, which had a significant impact on the subsequent formation of the constitutional and legal field in the country.
II. The post-Soviet constitutions of the republics of Russia
In the declarations on the state sovereignty the republics envisaged the renewal of their constitutional legislation. In place of the “stamped” Soviet constitutions of 1978, they drafted fundamental laws that establish the republics’ status, which has been updated unilaterally, taking into account their specific characteristics. The process of updating the constitutional legislation in the early 90s in each republic was unique. An example in this point is the Republic of Tatarstan, which was one of the first to start drafting its new Constitution, proceeding from paragraph 5 of the Declaration on State Sovereignty of the Republic of Tatarstan on August 30, 1990, which read: “This Declaration is the basis for the development of the Constitution of the Tatar SSR ...”2.
1 Republic, 2001, June 28. 2 The Declaration on the State sovereignty of the Republic of Tatarstan. – Soviet Tatariya, 1990, August 31. Boris Zheleznov 11
On August 31, 1990, the day after the adoption of the Declaration on State Sovereignty, the Supreme Soviet of the TSSR formed a Constitutional Commission consisting of 39 prominent politicians and scientists of the republic, chaired by M.S. Shaimiev, the chairman of the parliament and the first secretary of the Tatar regional committee of the CPSU. During the preparation of the project, the Presidium of the Supreme Council repeatedly held scientific conferences, on which the most important provisions of the future fundamental law were discussed, and the sharpest discussions were held on the issue of the state sovereignty of the republic and its place in the system of the Union and Russian Federations. At the end of 1991, the draft Constitution was published, but before the promulgation of it – on December 8, 1991 – the Presidium of the Supreme Council of the Republic of Tatarstan adopted a resolution on organizing its public discussion. However, on the imperative referendum, by the decision of the Supreme Council of the Republic of Tatarstan on February 21, 1992, instead of the whole project only one question was put forward: “Do you agree that the Republic of Tatarstan is a sovereign state, a subject of international law, building its relations with the Russian Federation and other republics, states on the basis of treaties?”1. The organization of a referendum on this issue immediately aroused serious concern in political circles and government agencies of the federal center. On March 5, 1992 the Supreme Council appealed to the people, the Supreme Council and the President of Tatarstan, expressing hope that the people and higher institutions of the republic will take a “wise decision”, which will not undermine the integrity of the federation, to which the Presidium of the Supreme Council of RT on March 7 reacted by turning to the people of the republic with the words: “it is unclear why these explicit and clear goals of the referendum ... cause rejection by the Supreme Council of the Russian Federation”2. On March 12-13, 1992 the issue was considered by the Constitutional Court of the Russian Federation, which resolved: “To recognize the resolution of the Supreme Council of the Republic of Tatarstan on February 21, 1992 on holding a referendum inconsistent with the Constitution of the RSFSR in the formulation of the issue that the Republic of Tatarstan is a subject of international law and builds its relations with the Russian Federation and other republics on the basis of equal treaties, since this is due to a unilateral change in the national-state system of the RSFSR and means that the Republic of Tatarstan does not belong to the RSFSR” 3. Following the decision of the Constitutional Court, the Supreme Council of the Russian Federation once again expressed its attitude to the future referendum: on March 19, 1992 it invited the President of the RSFSR to take measures to enforce the court decision, and announced that the results of the referendum would not have a legal force. The Supreme Council of
1 Republic of Tatarstan: modern history, v.1. – p. 306. 2 Republic of Tatarstan: modern history, v.1. – p. 312. 3 Decision of the Constitutional Court of the Russian Federation on March 12, 1992. № 3 – P. As noted above, this resolution concerned the Declaration on State Sovereignty of Tatarstan. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 12
Tatarstan was offered to bring the legislation of the republic into line with the decision of the Constitutional Court. In response, the Supreme Council of Tatarstan, by its decision on March 16, explained that the issues of state separation of the republic from the Federation, changes in its territorial integrity and borders are not the subject of the proposed referendum. On March 18, 1992 President B. N. Yeltsin addressed the Supreme Council of Tatarstan, stating that holding a referendum on the wording adopted means that the leadership of Tatarstan seeks to get support of the population of the republic for its course, which assumes that Tatarstan is outside of Russia. It can cause great harm to the friendship of the largest nationalities of Russia – Russian and Tatar. The main burden of responsibility for this, – warned the President, – will lie on the Supreme Council of the RT and its deputies1. On the same day, under the headline “The Threat of Security and Human Rights”, the press reported about the press conference that the Chairman of the Constitutional Court Valery Zorkin had the day before. He noted on the unconstitutionality of holding a referendum in Tatarstan and pointed out that the Supreme Council of the RT essentially ignored the decision of the Constitutional Court. At the same time, commenting on the appeals of some political figures for prosecuting the leaders of Tatarstan, V. Zorkin said that “it is necessary to try all the possibilities of the legal solution ... Only support for the law gives chances to solve the problem at any stage”2. Nevertheless, on March 21, 1992 the referendum was held. 82% of voters of the republic took part in the voting, 61.4% of them answered the referendum question positively3. Later, the results of the referendum were laid in the basis of the Constitution of Tatarstan4. Together with the draft by the Constitutional Commission, two alternative projects were submitted by two deputies of the republican parliament where the results of the referendum were practically not taken into account. They were submitted to the Supreme Council of the Republic of Tatarstan for consideration. On October 28-29 and November 4-6, the Supreme Council of the RT discussed the submitted projects and in fact adopted the draft of the Constitutional Commission as a basis. At the same time, it did not agree with the Appeal of the Council of the Republics of the Supreme Council of the Russian Federation on November 4, 1992 with to postpone the adoption of a new Constitution before signing the treaty between Russia and Tatarstan, and to include in the draft the provision that Tatarstan is part of the Russian Federation.
1 Rossiyskaya Gazeta, March 20, 1992. 2 Rossiyskaya Gazeta, March 20, 1992. 3 Republic of Tatarstan: modern history, vol. 1 – p. 318-319. 4 Along with the holding of this imperative referendum, for almost 5 months, the republic held a popular discussion of the draft Constitution as a whole, essentially a consultative referendum. – See ibid., p. 366-367. Boris Zheleznov 13
Consideration of the draft Constitution was accompanied by loud rallies of national separatists, where the leaders of the republic were declared almost traitors of the Tatar people, even for the very fact of entering into negotiations with Moscow. The incitement of nationalistic passions in the streets and the influence of a number of nationalist- minded deputies of the Supreme Council of the Republic of Tatarstan, apparently, led to some negative changes that were made to the draft during its discussion. For example, the provision that the legal acts of the Russian Federation operate on the territory of Tatarstan was discarded from the project, although it was admitted (with a certain reservation though) even in the Declaration on State Sovereignty of the Republic. On November 6, 1992 the Constitution of the Republic of Tatarstan was adopted, while on November 30 of the same year a Law on the procedure of its entry into force was passed. These are some of the most distinctive features of this Constitution: 1. It contained the idea of Republic of Tatarstan as a state of the entire multi-ethnic nation, and at the same time as a state which incarnates the national sovereignty of the Tatar nation. The universally recognized principles and norms of international law, international treaties, the party of which Tatarstan could become, gained the direct authority and priority over the state laws. 2. It retained the concept of social foundations of the state as an equal cooperation of all segments of the population, people of all nationalities. It formulated the principle of social partnership that, in the opinion of the legislator, was to resist the development of relations of exploitation. 3. Tatar and Russian were proclaimed the state languages in the republic. 4. It fixed the “social market economy”, the equality of all forms of ownership: private (including land ownership), state, municipal, property of public associations. 5. It established that citizens of the Republic of Tatarstan possess the citizenship of the Russian Federation. 6. The Republic of Tatarstan was characterized as a sovereign state, a subject of international law associated with the Russian Federation based on the Constitution of the Russian Federation, the Constitution of the Republic of Tatarstan and the treaty on mutual delegation of powers and subjects of reference. It could independently determine its legal status. Such a formula presupposed an attempt to consolidate the fundamentally new, special relations with the Russian Federation that go beyond the framework of the Federal Treaty, contain features of both federative and confederal ties, allegedly do not destroy the integrity of the Russian Federation and, at the same time, do not violate the real state sovereignty of the Republic Tatarstan. The independence of the Republic was reflected in the norms of the Constitution, declaring the territory of the RT free of weapons of mass destruction, which provided a special procedure for its citizens to serve in the Russian army, etc. A direct reference to the fact that Tatarstan is a constituent entity of the Russian Federation and that lawfully issued acts of the Russian Federation operate on its territory have not been included in the Constitution of the Republic of Tatarstan. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 14
Therefore among the most important provisions contained in the initial version of the Constitution of Tatarstan, there were those that, from today’s point of view, contradicted the Fundamental Law, but it should be borne in mind that the Constitution of the Russian Federation was adopted more than a year after the Constitution of the Republic of Tatarstan was enacted. Other republics also did not wait for the federal Constitution; the Constitution of Russia adopted later contradicted many norms of their fundamental laws in a number of positions. For example, although the Constitution of the Republic of Bashkortostan, unlike the Constitution of Tatarstan, recognized that the Republic is a subject of the Russian Federation, however, in the same place in Art. 70 contained a very categorical reservation: the relations of the Republic of Bashkortostan with the Russian Federation are negotiable. The Art. 1 of the Constitution of the Republic of Tuva proclaimed the right of the republic to self-determination, essentially allowing the republic to leave the Russian Federation by decision of a nationwide referendum of the republic. In constitutions of some republics, the national aspect was unnecessarily focused on in determining the general questions of the status of these subjects. For example, the Constitution of the Republic of Buryatia provided that the change in the state and legal status of the republic, as well as its territory, shall be carried out through a referendum. In this case, the decision is considered to be made if more than a half of the citizens voted for it, including more than a half of Buryat nationals who took part in the voting (part 4, article 60). The list of similar provisions, which were in contradiction with the norms of the later adopted federal Constitution and the principles of the existence of the federation, could be continued, but this is not necessary. Obviously, no federation would tolerate such contradictions in the system of constitutional legislation. Therefore, with the strengthening of the federal center, at the turn of 2000, real steps were taken to bring the constitutional and, with it, the current legislation of the republics and other subjects of the Federation into compliance with the federal legislation. This process was largely facilitated by the decisions and determinations of the Constitutional Court of the Russian Federation, as well as by the activities of plenipotentiary representatives of the President of the Russian Federation and the judicial and prosecutorial authorities in the federal districts. In particular, as already mentioned, the Constitutional Court of the Russian Federation, in a number of its acts, recognized as ineffective a number of provisions in the constitutions of the republics of Adygea, North Ossetia-Alania, Altai, Buryatia, Dagestan, Kabardino-Balkaria, Komi, Mariy-El, Sakha (Yakutia) and Tatarstan. These were mainly provisions on sovereignty of the republics, on the supremacy and supreme legal force of the republic’s constitution and its laws, on the right of the republic to suspend the operation of legal acts of the Russian Federation on the territory of the republic, on the exclusively contractual nature of entry, stay and the republic’s presence in the Russian Federation. The legal positions expressed in the acts of the Constitutional Court certainly concerned other republics as well. Boris Zheleznov 15
The positions of the Constitutional Court of the Russian Federation were supported by the supreme courts of some republics in connection with the protests of prosecution authorities. Based on the aforementioned decisions of the Constitutional Court of the Russian Federation, in 2000-2002 the republics made a number of important changes in their Constitutions. As for Tatarstan, in 2002-2005 its State Council also changed the previous version of the Constitution of the republic, but, nevertheless, it retained (in somewhat smoothened formulations) the provisions on state sovereignty, on the citizenship of the republic and some others. It resulted in an extensive protest by the Deputy Prosecutor General of the Russian Federation, partially satisfied by the Supreme Court of the Republic of Tatarstan on March 31, 2004, but the decision of the Supreme Court practically did not cause any changes in the fundamental law of the republic1. The Constitutional Court reviewed the issue, in particular, about the sovereignty of the republic, and having considered the request of the People’s Deputies of the RT, on February 7, 2003, established that the provisions of Art. 1 of the Constitution of the Republic of Tatarstan in its new edition of April 19, 2002 on the state sovereignty of the republic are legitimate. The Constitution of the Republic of Sakha (Yakutia) also retained a reference to its sovereignty as a measure of its independence in ensuring its economic, social and cultural development and the complete possession by the republic of the state power beyond the jurisdiction of the Russian Federation and the powers of the Russian Federation in matters of joint jurisdiction. With some textual changes the fundamental laws of several republics have preserved also the norms on the citizenship of the republics recognized as illegitimate by the Constitutional Court of the RF as well as the provisions proclaiming the peoples of the republics as bearers of sovereignty and the only sources of power in the republics. As we see, even after the decisions of the Constitutional Court had been taken, between the constitutions of some republics – on the one hand, and the Constitution of the Russian Federation – on the other, certain conflicts remained. But the legislation on the Constitutional Court of the Russian Federation (FKZ of July 21, 1994, FZ of December 15, 2001) does not allow refusals in the implementation of its decisions, hence the retention in the constitutions of the republics of norms that contradict the acts of the Constitutional Court of the Russian Federation indicated above, at least did not mean recognition of these norms by the bodies of the Federation. Nevertheless, only after almost 10 years, in June 2009, the Constitutional Court of the Russian Federation again actively returned to the issue of execution of the above decisions and demanded that the norms recognized by it in the late 90s – early 2000s as
1 According to the Decision of the Constitutional Court of the Russian Federation of July 18, 2003, courts of general jurisdiction should not consider appeals from the prosecutor’s office about the unlawful provisions of the Constitution and charters of the subjects of the Federation. This is the competence of the Constitutional Court of the Russian Federation. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 16 being not in accordance with the Fundamental Law of the Russian Federation would be promptly withdrawn from the constitutions of Tatarstan, Bashkortostan, Karachaevo- Cherkessia, Chechnya, Buryatia, Yakutia , as well as from the charters of the Krasnodar Territory and the Yamalo-Nenets Autonomous District. This time “the process has started”. Therefore, already in June 2009, the parliament of Sakha-Yakutia immediately in three readings excluded from the Constitution of Yakutia the concept of sovereignty, republican citizenship and the provision that the source of power in the republic is its people. The legislators of Tuva and a number of other regions – “violators” – agreed to introduce the corresponding changes in the Constitution of the Republic. At the same time, in some places to completely fulfill the requirements of the Constitutional Court of the Russian Federation (for example, in the Republic of Tatarstan) was not easy. Art. 1 of the Fundamental Law of RT states that sovereignty is “... an inalienable qualitative state of the Republic of Tatarstan”, and Art. 123 establishes that “the provisions of Article 1 of the Constitution of the Republic of Tatarstan and this article can be changed only by the results of a referendum of the Republic of Tatarstan.” Meanwhile, the current Federal Law on the referendum does not allow holding a referendum on the status of the regions of Russia. Thus, by the beginning of the second half of 2009, the issue of individual constitutional and legal conflicts between the Federation and the republics has not yet been completely removed; it seems that the way out of this situation can be found, among other things, in concluding bilateral treaties between the Federation’s bodies and subjects, which is convincingly confirmed by a new bilateral Treaty concluded between the state authorities of the Russian Federation and the authorities of the Republic of Tatarstan in 2007. Currently, the Russian constitutional system, along with the Constitution of the Federation of 1993, consists of the constitutions of the following republics: Adygea from March 10, 1995 as worked on 11 December 2006; Altai from June 7, 1997 as worked on January 12, 2006; Bashkortostan of December 24, 1993 as worked on June 15, 2006; Buryatia on February 22, 1994 as worked on May 8, 2007; Dagestan on July 10, 2003 as worked on December 8, 2006; Ingushetia of 27 February 1994 as worked on June 14, 2005; Kabardino-Balkaria from September 1, 1997 as worked on 13 July 2006; Kalmykia of April 5, 1994 as worked on April 23, 2007; Karachay-Cherkessia of March 5, 1996; Kalmykia of April 5, 1994 as worked on April 23, 2007; Karelia from February 12, 2001 as worked on 5 June 2006; Komi of February 17, 1994 as worked on June 15, 2007; Mari El from June 24, 1995 as worked on 4 October 2006; Mordovia of September 21, 1995, as worked on 3 May 2007; Sakha (Yakutia) of April 4, 1992, as worked on On February 14, 2007; North Ossetia – Alania on November 12, 1994 as worked on December 22, 2006; Tatarstan of November 6, 1992 as worked on March 14, 2005; Tyva from May 6, 2001 as worked on December 9, 2006; Udmurtia of December 7, 1994 as worked on December 29, 2005; Khakassia of May 25, 1995 as worked on June 26 -2006; The Chechen Republic from 2002 as worked on December 2, 2007; Chuvashia from November 30, 2000 as worked on 5 October 2006. Boris Zheleznov 17
III. Republic of Russia in a contractual relationship
March 13, 1992 was initialed, and on March 31, 1992, within the framework of the Federal Treaty, “An agreement on the delimitation of powers and powers between the federal bodies of state power of the Russian Federation and the authorities of sovereign republics within the Russian Federation” was concluded. The treaty was signed by all the republics of Russia, with the exception of Checheno-Ingushetia and the Republic of Tatarstan. The well-known events that took place then in the Chechen-Ingush region made it impossible for it to participate in the treaty. As for Tatarstan, on February 8, 1991 the Supreme Council of the Republic of Tatarstan adopted a resolution: “Considering that the draft of the Federal Treaty proposed by Russia contradicts the Declaration on State Sovereignty of the Republic of Tatarstan, instruct the Presidium of the Supreme Council of the Republic of Tatarstan and the authorized delegation of the Republic of Tatarstan to draft a bilateral treaty of the Russian Federation and the Republic of Tatarstan. Conclusion of the contract to implement after the signing of the union contract “. The Federal Treaty recognized the sovereign status of the republics within the Russian Federation. Moreover, paragraph 1 of Art. III of the treaty established that the status of the republic could not be changed without its consent. A protocol to the Federal Treaty, signed by the Russian Federation and the republics, provided for the need to ensure: at least 50% of seats in one of the chambers of the highest legislative body of the Russian Federation should be given to representatives of the republics and autonomies. What were the contradictions between the Federal Treaty and the Declaration on State Sovereignty of Tatarstan? The main contradiction lies in the fact that the Declaration basically provides for the full legal personality of the Republic of Tatarstan within the USSR and the establishment of interstate contractual relations with the Russian Federation on an equal footing. Declaring its sovereignty, the republic counted on the same relations with the Russian Federation after the collapse of the Soviet Union. Meanwhile, the Federal Treaty did not say anything about the interstate association of the Russian Federation and the Republic of Tatarstan and downplayed the powers of the authorities of all the signatory republics. In addition, it does not reflect such provisions of the Declaration on State Sovereignty of the Republic of Tatarstan as the supremecy of the republic’s laws throughout its territory and the operation of only those acts of the USSR and the RSFSR that did not contradict the Declaration. Far from all the subjects of the Russian Federation, including the republics that signed it, were satisfied with the content of the Federal Treaty. A strong desire was expressed to supplement this act with bilateral treaties that take into account the geopolitical, economic, cultural and other specific features of particular entities, since the Art. 11 of the soon adopted Constitution of the Russian Federation provided for the possibility of differentiating the powers and authorities between the bodies of the Russian Federation and its individual entities also on a contractual basis. In the 1990s, KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 18 the relevant bilateral agreements were concluded between the Russian Federation and its 46 federal subjects. In this regard, it should be said that treaties are an absolutely legal and exclusive legal instrument for taking into account the specific features of the subjects of the Russian Federation in such a huge and extremely diverse country like ours. In addition, these treaties are an effective means of federal transformation, any of which should be assessed as a universal comprehensive document that is prepared not on a unilateral basis, but on a bilateral basis, on an equal footing, by representatives of both the federal government and a specific constituent entity of the Russian Federation. In this sense, the contract is not only an opportunity, but also an art of achieving what is possible to achieve by a specific subject of the Russian Federation. The Republic of Tatarstan initiated the conclusion of the bilateral interstate agreement, the necessity of which ensued from the Declaration on State Sovereignty, after the adoption of the said Declaration. On July 30, 1991 the President of the Republic of Tatarstan M.Sh. Shaimiev sent the President of the Russian Federation B.N. Yeltsin a letter on the composition of the delegation approved by him at the talks on relations between Russia and Tatarstan. On August 9, 1991, B.N. Yeltsin signed a decree on the composition of the delegation of the RSFSR. The delegation of Russia was formed “for consultations and coordination of positions on economic and legal issues of the Tatar SSR”. Consultations were held in Moscow on August 12-15, 1991 and the following protocol was signed following their results.1
PROTOCOL ON THE CONSULTATIONS OF DELEGATIONS OF THE RUSSIAN SOVIET FEDERAL SOCIALIST REPUBLIC AND THE REPUBLIC OF TATARSTAN, HELD ON 12–15 AUGUST 1991 IN THE CITY OF MOSCOW
During the consultations, an exchange of views took place on a wide range of issues of political, legal and economic relations between the Russian Soviet Federative Socialist Republic and the Republic of Tatarstan. Taking into account the principles of the Declarations on State Sovereignty of the Russian Soviet Federative Socialist Republic and the Republic of Tatarstan, considering the historical, economic, cultural and other ties of their peoples, proceeding from understanding of the need to build their relations on new foundations and striving for their further development, the delegations agreed on the following: 1. Understanding and respecting the desire of the Russian Soviet Federative Socialist Republic and the Republic of Tatarstan, as participants in the Treaty on the Union of Sovereign States, to renew and enhance their status, to focus on the use of contractual
1 Republic of Tatarstan: modern history, – P. 207. vol. 1. Boris Zheleznov 19 forms of regulating relations between the Russian Soviet Federative Socialist Republic and the Republic of Tatarstan, taking into account their priority interests without infringing the interests of others republics and the Union as a whole. 2. To deepen and improve economic ties and mutually beneficial cooperation on the basis of a single economic space, the development of market relations, the stimulation of entrepreneurship and social protection of the population. 3. To ensure the observance and protection of the rights and legitimate interests of citizens regardless of national, confessional and other differences. 4. To promote the development of national cultures and languages. 5. It is advisable to continue consultations in the cities of Moscow and Kazan.
The consultations were attended by: On behalf of the Russian Federation: O. Lobov S. Stankevich N. Fedorov S. Shahrai F. Shelov-Kovedyaev Head of the delegation of the Russian Federation: G. Burbulis On the part of the Republic of Tatarstan: F. Gazizullin B. Zheleznov F. Safiullin I. Tagirov R. Khakimov R. Khafizov Head of the delegation of the Republic of Tatarstan V. Likhachev
This protocol was not published at first, but following on from the results a few more rounds of negotiations were held in Moscow and Kazan, and as a result of on February 15, 1994 the Russian Federation and the Republic of Tatarstan finalized the Treaty “On the delimitation of the subjects of jurisdiction and mutual delegation of powers between the government bodies of the Russian Federation and bodies of state power of the Republic of Tatarstan”. The main features of this treaty, which distinguished it from the Federal Treaty and bilateral treaties of the Russian Federation with other subjects of the federation, were the followings: 1. The treaty did not contain an indication to join the Federation for the Republic of Tatarstan. It had an interstate nature and made provisions that the Republic of Tatarstan as a state is united with the Russian Federation. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 20
2. The treaty did not contain the statement (which was prescribed by the Federal Treaty) about the conformity of the constitutions and laws of the republics with the norms of the Constitution and the laws of the Russian Federation. 3. It was underlined that the Republic of Tatarstan has the exclusive right to dispose of the property of the republic mineral resources, while in the Federal Treaty the issues of possession, use, disposal of land, mineral resources, water, forest and other natural resources are referred to as being under the joint jurisdiction of the Russian Federation and the republics. In contrast to the Federal Treaty the issue of taxes was also excluded from the list of issues of joint competence. 4. It was recognized that the authorities of the Republic of Tatarstan had the right to pardon individuals convicted by the courts of this republic. 5. The federal treaty did not say anything about the citizenship of the republics, while the treaty between the Russian Federation and the Republic of Tatarstan not only recognized the citizenship of Tatarstan, but also the powers of its bodies in this sphere, and it placed the matters of citizenship under the joint jurisdiction of the Russian Federation and the Republic of Tatarstan.1 6. The treaty defined the legal regulation of administrative, family and housing relations, the protection of human and civil rights as the exclusive jurisdiction of the Republic of Tatarstan, but according to the Constitution of the Russian Federation these are the issues of joint competence of the Russian Federation and the Republic of Tatarstan. 7. Some statements of the treaty went beyond the Constitution of the Russian Federation and also the Constitution of the Republic of Tatarstan. 8. Certain issues were caused by the fact that the treaty was signed only by the presidents and heads of government of the Russian Federation and the Republic of Tatarstan, it was not considered or ratified by the highest representative bodies of Russia and Tatarstan, in spite of the fact that some of its provisions concerned the activities of these bodies (at least the competence of certain legislative branches of the parties). It can be safely assumed that the discussion of the draft Treaty by deputies of representative bodies would make it legally more balanced and consistent in relation to the constitutional legislation. However, despite such peculiarity, the Constitutional Court of the Republic of Tatarstan in its decision of 7 February 2003 recognized that the treaty of 15 April 1994 “...was a legal act that directly institutionalized the entry of the Republic into the updated constitutional and legal space of the Russian Federation”.2 As noted during the academic discussion of this document, «it would be the greatest absurdity to evaluate the Treaty as a victory of Tatarstan or Russia. The Treaty is the victory of a sensible civilized
1 Ka r i m o v A. The Treaty of Sovereign States // Republic of Tatarstan, 1994, March 1 2 This provision is debatable. In particular, M.H. Farukshin does not agree with it, he believes that even without the treaty Tatarstan would remain in the constitutional and legal space of Russia. See Fa r u k s h i n M.Kh. – Constitutional Law of Republics of the Russian Federation. – Kazan. 2007, from p. 61. Boris Zheleznov 21 approach to solving complex problems, and therefore, strengthening both the Russian Federation and Tatarstan.»1 The Treaty between the Russian Federation and the Republic of Tatarstan of 15 February 1994 largely stabilized the situation in Tatarstan: it showed that the republic recognizes itself as a part of the Russian Federation (albeit with a special legal status) and that the lawful acts of the Federation operate in Tatarstan. This was particularly important also because the Constitution of the Republic of Tatarstan (considering its wording at the time of the conclusion of the Treaty) did not contain any provision directly indicating the federal legal personality of the Republic and the operation of federal acts on its territory. In other words, after the conclusion of this Treaty, the Republic of Tatarstan emerged from that uncertain state in which it found itself after the collapse of the USSR. The Treaty was indefinite, neither the Treaty nor its certain provisions could be canceled, changed or supplemented unilaterally. The Republic also concluded intergovernmental agreements with Russia. Thus, the first agreement that was concluded between the governments of the Republic of Tatarstan and the Russian Federation was on economic cooperation (January 22, 1992). The Treaty between the Russian Federation and the Republic of Tatarstan gave impetus to the conclusion of other agreements as well. In 1993-1994, the following intergovernmental agreements were signed: on higher education, on supporting the enterprises of the defense industry in Tatarstan, on budgetary relationships, on competence of the Russian Federation and the Republic of Tatarstan in the field of banking, on monetary policy, in the military sphere, on the sale and transportation of oil and oil refining products, on property issues, coordination of the fight against crime and other offenses, on mutual delegation of authority and responsibilities in the defense industry, on cooperation in the field of environmental protection, on the settlement of relations in customs matters, the division of powers in the field of foreign economic relations. The agreements were concluded mainly for a five-year term, after which they could be renewed by mutual consent of the parties. According to section 2, paragraph 1 of the Constitution of the Russian Federation (1993), in case of non-compliance of the provisions of the Federal Treaty with the provisions of the Constitution, the provisions of the Constitution apply. Thus, the Federative Treaty was formally retained, but its provisions that are not in harmony with the provisions of the Constitution, lost their force. In particular, paragraph 2 of Art. 5 of the Constitution of the Russian Federation now defines a republic within the Russian Federation simply as a state, but no longer characterizes this state as sovereign. Deletion of the notion of “sovereign” as applied to the republics can not be regarded as a coincidence, and this fact played its role later when the Constitutional Court of the Russian Federation adopted its well-known decision which said that the republics within the Russian Federation do not have sovereignty.
1 Tu z m u k h a m e t o v R., Pu s t o g a r o v V. Equal international act // Republic of Tatarstan, 1994, March 17. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 22
However, there were some attempts to substantiate this «gap» in the Constitution of the Russian Federation by the fact that the republic is still recognized as a state, hence, the sovereign character of the republic is implied. But the logic of legal thinking convinces us of the opposite: the silence on the issue of the sovereignty of the republics after this sovereignty was mentioned in the Federal Treaty shows that the legislator took the opposite position. The subsequent fate of bilateral treaties, including the «special» treaty between the Russian Federation and the Republic of Tatarstan, is curious. The Parliament of the Russian Federation by its Law of 4 July 2003 (Article 267) established a new procedure for concluding agreements on the division of powers between the authorities of the Russian Federation and its subjects, according to which these acts require consideration in the chambers of the Federal Assembly. The duration of the contracts already concluded was limited to another two years, after which they ceased to exist. Consequently, the term of the Treaty between the Russian Federation and the Republic of Tatarstan also ended on July 7, 2005, that is 2 years after the publication and entry into force of the law of 4 July 2003. In these conditions, the overwhelming majority of the republics themselves offered to cease the effect of the treaties concluded by them (supposedly having already fulfilled their tasks). But Tatarstan for a number of reasons (see below) did not want to “file in.» It wanted to preserve the Treaty, and under the terms of Art. IX of this Treaty, the latter could not be terminated by Russia unilaterally. Nevertheless, the Federation terminated the Treaty using the above-mentioned law, and in the current political situation the Republic had to obey even without using its appeal to the Constitutional Court of the Russian Federation. Nevertheless, Tatarstan immediately emphasized the issue of concluding a new treaty, relying on paragraph 3 of Article 11 of the Constitution of the Russian Federation, which establishes that the delimitation of powers between the authorities of the Russian Federation and its subjects can be implemented not only by the Constitution and the Federal Treaty, but also by other treaties. That is, the Law of 4 July 2003 changing the procedure of concluding the contracts, could not, basically, prohibit their conclusion. Now – about the reasons, laid in the basis of the principled position of the Republic of Tatarstan in the contractual process. 1. The Tatar people, unlike a number of other nations, also possessing their forms of national statehood in Russia, never entered the Russian state voluntarily and the dates of its “voluntary entry” were not celebrated even under the “Leninist national policy”. Therefore, Tatarstan, a state that has become a form of realization of the national sovereignty of the Tatars, needs a bilateral treaty legitimizing its federal personality. 2. During the referendum held in the Republic on March 21, 1992 the people of Tatarstan spoke for the conclusion of a bilateral treaty with the Russian Federation. 3. The Federal Treaty of 31 March 1992 was not signed by the Republic of Tatarstan, meanwhile the Republic has important geopolitical, economic, and socio-cultural features that could be fully taken into account only if a bilateral treaty was concluded. Boris Zheleznov 23
4. The need to conclude a bilateral treaty with the Russian Federation is established by the Constitution of the Republic of Tatarstan and the Declaration on State Sovereignty of Tatarstan. 5. In the protocol mentioned above, following the consultations between the delegations of Russia and Tatarstan dated August 15, 1991, signed by the official Russian delegation, both sides agreed to “use the contractual forms of regulation of the relations” between Russia and the Republic of Tatarstan, “taking into account their priority interests.” By insisting on concluding a new treaty the Republic did not mean to improve its legal status in comparison with other republics. It should also be noted that the Republic already had a serious experience of contractual activity: by 2007, it had established contractual relations with 67 regions of Russia. There were already 20 representative offices of the republic and 42 trading houses in remote foreign states, CIS countries and regions of the Russian Federation.1 After the termination of the Treaty between the Russian Federation and the Republic of Tatarstan on February 15, 1994, the State Council of the Republic of Tatarstan, following its taken position, in autumn 2004, succeeded in establishing a bilateral working group that drafted the text of the new treaty by considering more than ten options. On October 28, 2005, the new version of the Treaty was approved by the Parliament of the Republic of Tatarstan by a majority vote and in March 2006 the draft was sent to the President of the Russian Federation. The document received positive feedback from the administration of the President of the Russian Federation, the Government and the General Prosecutor’s Office of Russia. After that on November 4, 2006 the draft Law was introduced by the President of the Russian Federation in the State Duma, reported by the President’s Plenipotentiary Representative A.S. Kosopkin, and on February 9, 2007 adopted by absolute majority of the deputies. However, on February 22, 2007, the Federation Council of the Federal Assembly of the Russian Federation rejected the Law with 93 votes to 13, believing that, firstly, the Treaty violates the principle of equality of regions in relations with the Federation and, secondly, it can initiate a new process of “sovereignization” and may lead to the collapse of Russia. After the dramatic decision of the Federation Council some changes were made to the original text of the Treaty, in particular, it was underlined that while concluding the Treaty the constitutions of the Russian Federation and the Republic of Tatarstan, federal laws and laws of the Republic of Tatarstan are to be taken into account. The Treaty, newly signed in Moscow on June 26, 2007, as opposed to the federal laws provides for differentiation of powers and competence between the bodies of state power of the Russian Federation and the bodies of state power of the Republic of Tatarstan
1 Republic of Tatarstan, 2006, December 12. In the Address to the State Council of the Republic of Tatarstan on January 31, 2008 the President of the Republic M.Sh.Shaimiev noted the intensive work of the RT bodies on concluding agreements with foreign partners. – See: Republic of Tatarstan, 2008, February 1. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 24 in certain spheres. In particular, it is determined that the Government of the Russian Federation and the Cabinet of Ministers of the Republic of Tatarstan conclude agreements providing for the joint resolution of issues related to the economic, environmental, cultural and other peculiarities of the Republic of Tatarstan and bring relevant bills to the State Duma on the issues mentioned (Art. 2). It was determined that the bodies of state power of the Republic of Tatarstan have the right to provide, with consent of the Government of the Russian Federation, state support and assistance to compatriots (Art. 2) and to issue to citizens of the Russian Federation residing in the territory of the Republic of Tatarstan a passport of a citizen of the Russian Federation with an insert in the state language of the Republic of Tatarstan (Tatar) and with the image of the state emblem of the Republic of Tatarstan (Art. 3). In addition, the Treaty stipulates that the candidates nominated for the office of the highest officials of the Republic of Tatarstan in accordance with the procedure established by the Federal Law “On General Principles of the Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation”, get an additional requirement of proficiency in both state languages of the Republic of Tatarstan (Art. 2). Since the Treaty is approved by the federal law, not only the bodies of the Republic of Tatarstan , but all the bodies of the Russian Federation must respect it. The duration of the Treaty is 10 years. In July 2007, the Treaty passed through both chambers of the Federal Assembly of Russia, Federal Law No. 199-FZ on its approval was signed by the President of the Russian Federation on July 24, 2007 and then published (although without annexing the text of the Treaty itself).1 Assessing the significance of this Treaty, the President of the Republic of Tatarstan M.Sh.Shaimiev noted that it “...marked a new stage in the political life of Tatarstan”.2 The new Treaty opens up opportunities for the progressive, dynamic development of Tatarstan. And now the main thing is its implementation. On August 6, 2007, the President of the Republic of Tatarstan issued an order called “On Measures to Implement the Treaty on the Delimitation of the Jurisdiction and Powers between the State Authorities of the Russian Federation and the State Authorities of the Republic of Tatarstan”, which gave the appropriate instructions to the Tatarstan government authorities, and the Decree No. 351 of the President of Republic of Tatarstan dated December 29, 2007 approved the Plan of the main measures for the implementation of the Treaty. Provisions on the contractual delimitation of the jurisdiction and powers between the bodies of state power of the Russian Federation and the republics in Russia are also established in the constitutions of the Republic of Ingushetia, Karachaevo-Cherkessia and other republics. In this regard, like other regions of the Russian Federation, they
1 The text of the Treaty is posted on the website of the State Duma of the Federal Assembly of the Russian Federation (http://www.duma.gov.ru). 2 Republic of Tatarstan, 2008, 1 February. Boris Zheleznov 25 have the opportunity to exclusively, in a contractual manner formalize their specifics and features. This will mean Russian federalism in action. The Republic of Tatarstan also has branched horizontal contractual relations with other republics and other regions of the Russian Federation for the purposes of cooperation in the spheres of state building, economic and socio-cultural development: interstate, inter-parliamentary and intergovernmental. Currently the State Council of the Republic of Tatarstan concluded 27 interparlia- mentary agreements with the parliaments of Altai, Bashkortostan, Ingushetia, Kabardino- Balkaria, Komi, Mordovia, Tuva, Udmurtia and other constituent entities of the Russian Federation. In addition, the State Council of the Republic of Tatarstan signed protocols on cooperation, intentions and negotiations respectively with the Grand National Assembly of Turkey, the Parliamentary Center representing the Parliament of Canada, and the Chairman of the Quebec National Assembly. The Cabinet of Ministers of the Republic of Tatarstan concluded and implemented the following intergovernmental agreements (by January 1, 2009): with the regions of the Russian Federation – 48; with federal executive bodies – 44; international agreements – 20; with other organizations – 33 (for example, on cooperation with OJSC “Severstal- auto”, with Sberbank of Russia for the implementation of the national project called “Affordable Housing for Russian Citizens”, etc.). The Republic has more than 25 international agreements, as a rule, with those states which have the representations of the Republic of Tatarstan.
References
Farukshin M.Kh. Konstitucionnoe parvo respublik Rossijskoj Federacii [Constitutional Law of Republics of the Russian Federation]. – Kazan. 2007, from p. 61. Karimov A. Dogovor suverennykh gosudarstv [The Treaty of Sovereign States] // Republic of Tatarstan, 1994, March 1. Tuzmukhametov R., Pustogarov V. Ravnopravnyj mezhdunarodnyj akt [Equal international act] // Republic of Tatarstan, 1994, March 17.
Information about the author
Boris Zheleznov (Kazan, Russia) – Doctor of Legal Sciences, Professor of the Department of Constitutional and Administrative Law, the Law Faculty of Kazan (Volga region) Federal University (420008 Kazan, Kremlyovskaya St., 18, room 145; e-mail: [email protected]). KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
Evgeny Vavilin Doctor of Legal Science, Professor, Head of the Department of Civil Law, Vice-rector on research work of Saratov State Law Academy
PRINCIPLES OF CIVIL LAW OF RUSSIA AND CHINA
DOI: 10.24031/2541-8823-2017-2-4-26-41
Abstract: The article analyzes the content and functionality, the role of the basic principles of civil legislation and the problems associated with their failure in the process of enforcement and administration of law. Principles have a number of features, among which one can note imperativeness, universality and general significance. The essential features also provide the faculty to define the limits of the law. Comparing systems of civil law principles of Russia and China, the author reveals the uniqueness of the two legal systems and general development trends, analyzes the most topical problems, connected with imperfection of the system of principles and lack of mechanism for their implementation in civil legal relations. The difficulty lies in the development of appropriate legal and technical methods and means of establishing them in legal systems with distinctive origins and structure in a situation of constantly changing social and economic environment. The article presents specific proposals to improve Russian legislation. Keywords: the principles of civil law, civil law of China, the principle of equality, abuse of right, the principle of good faith, the exercise of the rights, the duties.
The role of principles in the formation of the domestic legal system is difficult to overestimate: private law establishes the necessary restrictions on the autonomy of will for subjects in accordance with the principles of fairness, conscientiousness and reasonableness in order to prevent abuse and build a real balance of independence and fair order. The civil law principles incorporate conceptual normative and ideological attitudes, that provide specific methods, modes and means of legal regulation. This property is linked to their special status and significance in each legal system. Evgeny Vavilin 27
These provisions are characterized by a number of relevant attributes, among which we can mention the highest imperativeness, universality and general validity. The highest imperativeness is manifested in the requirement to exercise subjective rights and perform duties in a manner determined by principles. From the point of view of law enforcement, codified principles stand above the prescriptions of a private character, since they are the supreme imperatives and must predetermine a judicial decision, while the norms are dispositive in nature. The universality of principles presupposes their regulative role at all stages of legal relations and is also manifested in the fact that the change of individual norms does not necessarily entail a change in the principle, but the transformation of principles inevitably leads to a radical restructuring of the entire legal system. The general validity of these principles is predetermined by their significant law-enforcement influence on all participants in the relations. Among the essential features of these foundations is also an ability to determine the limits of exercising law. At the same time, these are far from declarative elements, and their regulatory potential depends on how adequately the legislator has used the juridical methods. It is necessary to analyze the ability of these institutions to form certain instruments of private law and determine which factors increase their effectiveness in regulating economic relations and what circumstances prevent it. In Russian civil legislation, the following principles are distinguished: equality of participants in civil legal relations, inviolability of property, freedom of contract, inadmissibility of arbitrary interference of anyone in private affairs, inacceptability of abuse of right, the need for unimpeded exercise of civil rights, ensuring the restoration and judicial protection of violated rights, acquisition and exercise of civil rights by citizens and legal entities with their will and in their interest (discretion). The legislator has fixed all the listed principles in Ch. 1 and 2 of the Civil Code of the Russian Federation. Let us dwell on some of the problems that are connected with the implementation of civil law principles and measures for overcoming them. The principle of equality of participants in civil legal relations implies, above all, their legal equality. This provision in its most general form is manifested in the recognition of equal ability to have rights and obligations for all persons (Article 17 of the Civ il Code of the Russian Federation). Article 155 of the Civil Code of the Russian Federation excludes the possibility of one person obliging another person to do anything with their unilateral will, unless otherwise established by law or by agreement with these persons. It should be noted, however, that in many cases the law allows a unilateral refusal of the contract if the counterparty violates its contractual obligations (Article 464, item 2 of Article 467, item 2 of Article 475, item 2 of Article 480, item 3 of Article 484, item 4 of Article 486, item 2 of Article 489, item 3 of Article 503, item 2 of Article 515, item 523, item 2 of Article 719 GK the Russian Federation), or in communication with the essence of contractual relations. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 28
In other cases, a unilateral refusal to perform the contract for one of the parties is possible in order to restore equality of parties in the agreement (articles 495, 496, 500, 627, 717 of the Civil Code of the Russian Federation). But these exceptions are possible only in order to establish a balance of interests of the parties, according to the Constitutional Court of the Russian Federation1. The second meaning of this term is specified as the position of subjects operating under conditions of freedom of contract, that is, the situation in which the relations of subjects are built not on the basis of subordination2. This value is immanent to Art. 1 of the Civil Code of the Russian Federation: it is inadmissible to grant to one of the participants power over the other in civil legal relations. The Russian Federation, its subjects and municipalities are on an equal footing with all the participants in relations (clause 1, Article 124 of the Civil Code of the Russian Federation). It should be noted that if this principle is observed, differences in the scope and content of the rights of subjects of legal relations are allowed. In addition, equality can be understood as an equilibrium of the possibilities of the subjects of relations, laid down in the norms. The essence of this principle is in the equality before the law of the subjects of relations. This idea is most accurately formulated by V.F. Yakovlev: “In fact, this is the equality of the original legal status of civil law subjects. And this equality is expressed in the fact that all participants of civil legal relations are endowed with civil legal capacity as a certain measure of social opportunities in the sphere of application of civil law”.3 In other words, it is necessary to ensure an equal opportunity to acquire civil rights and obligations for all participants of civil circulation. It is at this stage, as practice shows, that equality is often violated. Sometimes the inequality of the subjects of civil circulation is laid down in the normative acts themselves. It is unacceptable to create legal acts unjustifiably limiting the possibilities of one of the parties in civil law relations. Thus, the Law of the Vladimir region of December 27, 2005 No. 1-O “On zones of regulated development”, which determined the creation, functioning and liquidation of zones of regulated development on the territory of the Vladimir region was justly declared to be invalid. This normative legal act actually established special rules for the conduct of business entities in the field of entrepreneurial activity. The law of the
1 Decision of the Constitutional Court of the Russian Federation of June 6, 2000 No. 9-P “On the case on the verification of the constitutionality of the provision of the third paragraph of paragraph 2 of Article 77 of the Federal Law” On Insolvency (Bankruptcy)” // The Civil Code of the Russian Federation. With article-by-article appendix of materials of practice of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation] / Compiled by D.V. Mu r z i n . 2nd edition, revised and enlarged. M., 2003. P. 552. 2 Commentary on the Civil Code of the Russian Federation, Part One (itemized) / Revised and edited under Sa d i k o v O.N. М., 1997. P. 3; Civil Law: Student book / Ex.ed. E.A. Su k h a n o v . М., 1998. Volume 1. P. 51.
3 Ja k o v l e v , V.F. Russia: Economics, Civil Law (theory and practice). Academy of Social Sciences. Foundation for assistance to social development and political sciences. M., 2000. P. 42. Evgeny Vavilin 29
Vladimir region regulated the procedure and conditions for the creation of a preferential treatment of investment economic and entrepreneurial activity, the conditions for encouraging organizations operating in zones of regulated development through the provision of tax benefits. The court stated correctly that, in violation of the principles of the unity of the economic space of Russia and the equality of the conditions of economic activity of all entities, the Law of the Vladimir region dated December 27, 2005 No. 1-O “On zones of regulated development” established a special economic practive, in which tax benefits are granted to legal entities, that manage the zone of regulated development and have concluded a contract aimed at implementing plans for the development of the zone, in contrast to economic entities that have not concluded such contracts and therefore do not have any tax benefits1. The problem of equality before the court and law is manifested particularly acutely in the domestic law enforcement while defending honor, dignity, business reputation and inviolability of private life. Thus, the Supreme Court of the Russian Federation has revealed cases of unreasonable underestimation by courts of the amount of compensation for moral damage, non-compliance with the requirements of reasonableness and fairness in cases of protection of honor and dignity, business reputation, as well as inviolability of private life of public persons considered by the courts of Russia in the period from 2004 to 20062. Also, an extensive problematic field in connection with the establishment of equality of economic entities is opened in the field of entrepreneurial activity. Thus, the legal equality of participants in civil legal relations is a condition for the legality and guarantee of the exercise of rights and the performance of duties. Deviation from the principle of legal equality of the subjects of civil circulation is provided by the legislator in those cases where one of the parties in the legal relations is knowingly weak in material, organizational or other respects and needs special (additional) civil law protection. The principle of equality of parties is one of the constructive foundations of the mechanism for exercising subjective civil rights and the performance of subjective civic obligations. According to this decree the powers of the participants in civil relations should be equal. One of the other significant problems of domestic civil law is the realization of the principle of combining private (personal) and public interests. It has become topical in connection with the legislative reorientation from the priority of state, public interest in the Soviet period of the development of the state to the priority of a harmonious combination of public, private (personal) and state interests in the current legislation. The named principle operates both in the Constitution of the Russian Federation, and in the
1 See: The definition of the Supreme Court of the Russian Federation of July 18, 2007 No. 86-GO7-15 // The ATP “KonsultantPlus”. 2 Review of practice of consideration by courts of the RF of cases on protection of honor, dignity and business reputation, and also inviolability of private life of public persons in the field of politics, art, sports // Bulletin of the Supreme Court of the Russian Federation. 2007. № 12. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 30
Civil Code of the Russian Federation, the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Criminal Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and in other standard legal acts. It is also laid down in international legal acts: the universal declaration of human rights restricts the exercise of the rights of a subject to ensure the proper recognition and respect for the rights and freedoms of others and meet the requirements of public order and general welfare (Article 29 of the Civil Code of the Russian Federation). Thus, the principle of proportionality, a combination of private and public interests, contains a universal target for various legal institutions. The foundation stated above ensures the effective development of trade turnover, strengthens the cultural, social and economic foundations of society. It manifests itself in such spheres as legal awareness, lawmaking at the junction of civil and public law, law enforcement. This principle presupposes the creation of such a configuration of rights and duties of subjects of legal relations, in which the integrity and safety of individual rights that do not infringe upon the interests of society are maximized. In the mechanism of exercising civil rights and fulfilling duties, it acts as a constructive, formative factor, acting at the stage of doctrinal awareness and the formation of objective norms. One way to harmonize private and public interests is to comprehend and consolidate the hierarchy of interests. Domestic doctrine has already attempted to comprehend the proportionality of private and public interests in certain spheres. Thus, the legislator has established special legal regulations for individual objects. This is carried out, first of all, by either full or partial withdrawal from circulation of some natural objects and natural resources (clauses 2 and 3 of section 129 of the Civil Code of the Russian Federation). However we can state that so far the problem of clarifying and justifying the list of interests in civil law is far from being resolved. In our opinion, at the doctrinal level, it is necessary to proceed from four priority groups that are hierarchically arranged in relation to each other. First, the interests connected with the full range of human activities of the majority of members of society should be considered as the first priority. At the same time, it means the provision of the opportunity to exercise their natural rights by the majority. Secondly, private interests should be protected. The subject’s interests associated with the implementation of “natural” rights are to be prioritized. Thirdly, there are state interests, dictated by the need to preserve and strengthen the statehood, territorial and cultural integrity of the country. Fourthly, there are public and private interests related to the implementation of entrepreneurial rights (all others, with the exception of natural human rights). The development of this position was facilitated by the experience of foreign legislation, in which, in the event of a clash of private and public interests, there is also a tendency to favor the interests of the majority. Evgeny Vavilin 31
Paragraph 2 of Sec. 1 of the Civil Code of the Russian Federation with the restriction of rights also prescribes a certain hierarchy of interests: civil rights may be restricted on the basis of the federal law to the extent necessary for the protection of the foundations of the constitutional order, morality, health, rights and legal interests of others, and state security. Another way to eliminate the conflict of legitimate interests is to enshrine the limits of the realization of interests in legislation. From this point of view, the principle associated exclusively with the processes of law enforcement – the principle of the inadmissibility of the abuse of law – is of particular importance. This is its specificity: “Abuse is not associated with the content of law, but with its implementation, because when the right is abused, a person acts within the rights granted to them, but in an impermissible manner.”1 This beginning is a requirement for the subjects not to go beyond the law in the process of fulfilling the obligations and realizing the rights, to exercise their rights and duties in an appropriate manner. According to the provision of Part 3 of Art. 17 of the Constitution of the Russian Federation, the exercise of human rights and freedoms should not violate the rights and freedoms of others. The key point, as we see, is not allowing to use the law with “evil” intensions. To create an effective mechanism to prevent the abuse of law, it is necessary to understand at the doctrinal level the essence of the concept of “abuse of the law”. This problem goes far beyond the limits of Russian law, being universal for all legal systems. It is not accidental that the definition of “abuse of law” includes dozens of points of view, while remaining controversial at the moment. Already Roman lawyers assessed the “bad” exercise of rights negatively and sought to limit the use of law for “evil” purposes. This was reflected in the Code of Justinian, the praetor edicts. In the European doctrine of civil law, since the XVI century, the prohibition on abuse of law existed as a general legal principle. The development of the domestic legal thought shows that the understanding of this term came from an immense and for the most part political and economic interpretation as the exercise of rights in contradiction with their social and economic purpose2 until its complete denial.3 Some jurists believe that the abuse of law lies outside the law. In contrast to this point of view, V.P. Gribanov put forward the argument that this concept loses its meaning when it is excluded from the law. The scientist separates the content of subjective law from its implementation.
1 Commentary on the Civil Code of the Russian Federation, Part One (itemized). 3rd ed., Rev., add. and pererab. Under. Ed. H.E. Sa d i k o v a . M., 2005. P. 35.
2 Ta r k h o v V.A. Soviet civil law. Saratov, 1978. Part 1. P. 106.
3 See: M. Ag a r k o v . The problem of abuse of law in Soviet civil law // Izvestiya Akademii Nauk SSSR. Otd. economy and law. 1946. № 6. P. 426; KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 32
Particular attention should be paid to situations in which the empowered person deliberately or unconsciously harms the counterparty, using the opportunities and means permitted by law. Thus, many know of the situation when a creditor who did not file a timely claim to the court to recover the forfeit deliberately increases the delay of execution in order to increase the size of this penalty. The analysis of such cases once again convinces us of the need to improve the legislation. It should be in specific legal relations to determine the boundaries of the implementation of rights as detailed as possible, regulating these boundaries by norms. Traditionally, the time limits, ways and means of exercising rights are the limits of the exercising rights. Some researchers also include in this list the appointment of the right, which, with certain reservations, is not devoid of rational kernel. However, the practice shows that the implementation of law should be limited to other “intangible” limits. These include reasonable, conscientious implementation, as well as the inadmissibility of causing harm to other participants in civil circulation. The absence of such restrictions, as a rule, generates a conflict of lawful interests of economic entities. The imbalance of rights and obligations between counteragents leads to the possibility of abuse of law. The situation in which the duty is executed for evil purposes, arises in cases of coincidence of rights and obligations. Thus, a guardian, improperly performing his duties, inevitably harms the ward. In other words, when the duty is executed as a mere formality, that is, improperly, it is fair to speak of abuse of duty. An extensive field for abuse of both the creditor and the debtor opens up in a binding relationship, in the performance of alternative, optional obligations. For example, when an obligated person chooses such a way of realizing their duties, which is obviously not beneficial to the counterparty, or the creditor does not accept the performance of the optional obligation, insisting on the option that is unprofitable for the debtor. This situation, first of all, is caused by the lack of the existing norms of the Civil Code of the Russian Federation. Therefore, it is fair to include in the content of any obligation the obligation of the parties to comply with the requirements of reasonableness and justice in their relations.1 In our opinion, it is advisable to reformulate the principle of the inadmissibility of abuse of law as the principle of the inadmissibility of abuse of rights and obligations. In this case, a special emphasis is rightly placed on the performance of the duty. The problem of abuse of law is universal, interdisciplinary. One of the most complex areas in this respect is abuse of power by officials. Experts define power as “a set of rights granted to a subject along with the provision of certain duties in accordance with the position held”. 2 Thus, if the participants or third parties of legal relations are harmed, the abuse of authority can be assessed as abuse of subjective rights and obligations.
1 Paragraph 2.2. Section 1 of the Concept of improving the general provisions of the Russian law of obligations: The draft is recommended by the Presidium of the Council under the President of the Russian Federation for the codification and improvement of civil legislation to be published for discussion. Protocol No. 66 of January 12, 2009 // http://www.privlaw.ru.
2 Abridget legal dictionary / Otv. Ed. A.V. Ma l k o . M., 2007. P. 91. Evgeny Vavilin 33
In the recent decades years the abuse of power has taken ominous forms and proportions and led to the issue of Presidential Decree ¹ 797 of May, 15th, 2008 “On urgent measures for liquidation of administrative barriers in business”. This normative legal act was a timely and effective response to the problems in this sphere. The possibility of abuse of power by state supervision bodies is reduced substantially by subpar. “a” par. 1 of this decree which requires a reduction of scheduled supervision activities for one entity or sole proprietor by each state supervision body (except for tax supervision) to no more than one activity in three years. The decree also states that executing unscheduled supervision activities for the subjects of small and medium business is allowed only for detection of violations that pose an immediate threat to lives and health of people and only in agreement with RF procurator. A direct measure against the impermissibility of abuse of power is the removal of non-procedural rights from internal affairs agencies of RF (that means elimination of any actions which are not directly provided by the procedural legislation), in supervision of small and medium business, as well as the ability of drawing up reports on administrative offence in business sphere (subsec. “a” sec. 1) by officials of these agencies. This norm means that all actions of state supervision agencies should strictly follow the instructions of procedural legislation which consists of systematized normative legal acts concerning jurisdictional proceedings and laws that contain special procedural norms. All the named measures in the Decree are aimed at limiting intervention and overwhelming supervision of state agencies over the activity of small and medium business. To sum it up by the principle of inadmissibility of abuse of law we should understand the following imperatives: obligation of subjects to build their relations according to the universal requirements of moral and law, to take care of fair interests of other participants of civil law relations, to use constructive approach toward dispute settlement, keeping the equilibrium between public and individual interests. In a broad sense by abuse of power we should understand an action of a subject øèò in legal relationship that contradicts the principles of law realization. The principle of inadmissibility of misuse of law is most tightly connected to the problem of reasonable and conscientious realization of rights and performance of duties. Many scholars of civil law tend to view the presumption of conscientiousness and reasonableness as a main, fundamental basis of civil law1. It was proposed to set a principle of conscientiousness as one of the main principles of civil law (sec. 1 of Civil Code of RF)2. Although the meaning of reasonableness and conscientiousness is different, their status is equal from the procedural point of view – both unconscientious and unreasonable actions lead to refusal to protect rights. Thus, the category of conscientiousness (honest
1 See: Ye m V.S. Principles of civil rights realization and duties performance // Civil law: Student book: nd in 2 vol. / Ex.ed. E.A. Su k h a n o v . 2 edition; A.A. Ch u k r e y e v . Subjective conditions of civil law sanctions usage in business: Thesis abstract. Tumen’, 2003. p. 28
2 Sa r b a s h S.V. Performance of duties // Property and law. 2009. №3. P.28 KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 34 performance of their duties and obligations1) is an important characteristic of legal fact, although it is in the sphere of morals and ethics. Of course, we should regard reasonableness and conscientiousness not as purely legal, but as legally important imperatives, that let us classify the abuse of law in a number of cases. The principle of conscientiousness is a means that implements the moral norms into the process of legal regulation, therefore it should be described in the law down to the last detail, its meaning should be explained in the text. In the last decade a positive tendency developed in the doctrine is growing vividly: specialists pay special attention to specific legal-technical tools in implementing a principle of conscientiousness in legislation and to its regulative potential. Particularly the need to change the sec.10 of CC RF is highlighted in order to set a general principle of conscientiousness in civil relations and to include this principle into different sections of the certain part of CC RF (e.g. into law of obligations). Taking into account a particular significance of the concept of conscientiousness, we suppose that the very category of meaning of rights and obligations should rethought, since according to the general legal requirement of conscientiousness and reasonableness it is expediently to include these norms into the content of any right and obligation. The concept of conscientiousness should not only be set in law, but its operation should be provided in the process of law implementation. In this respect the recommendations of the Presidium of the Supreme State Arbitration Court are of essential importance for an executor of law: i.e. sec.10 CC RF on law implementation. Thus, it was noted that the imperative rule of the law about the inadmissibility of abuse of law entitles the court to qualify the actions of a person as abuse irrespective of the fact whether the other party had complained about that misuse or not. In this case the court has a right to refuse the right of protection for the misusing party on its own initiative. In European law the problem of misuse is also being addressed on moral-legal grounds of righteousness, conscientiousness, reasonableness. Thus, the German Civil Code (GCC) sets the following legal means to limit the right holder’s will: 1. prohibition of chicanery, i.e. the use of the subjective right only to harm another (sec. 226 GCC); implementing law is inadmissible if its only goal is to inflict harm on another; b) prohibition of law implementation against “bona fide” or the requirement to fulfil obligateons on the basis of reliability and trust, using “bona fide”: “The debtor has to fulfil their obligateons as reliability and trust and business customs require” (sec. 242 GCC); c) terms of law implementation the expiry of which may lead to denying the right to execute the law and the limitation period expiry2. At the same time, in the German civil law literature the content and mechanism of implementation of these provisions remain debatable. Paragraph 242 GCC (execution of
1 Oz h e g o v S.I. Russian language dictionary. M., 1987. P. 145.
2 Zhalinskiy A. Ry o r i k h t A. Introduction to German law. M., 2001. P. 309. Evgeny Vavilin 35 obligations with trust and due diligence, considering «good customs of circulation») is one of the key norms of civil law and is a serious restriction of freedom of contract in a socially oriented Basic Law. As jurists note, this norm is very popular, and the legal awareness renders it as an idiom: “a decent man does not refer to expiration of limitation period”1. In the Muslim law this problem is being solved originally. Their judicial practice is based on the Islamic principle of the inadmissibility of causing harm to another while meeting the individual needs. The main criterion of abuse is infliction of harm with proper use of subjective rights. It is this fact of inflicting harm during the implementation of law or such intention that is contrary to the Sharia, and are considered to be guilty acts, according to Islamic jurists’ opinion. In our view, the determining criterion of harm infliction, partly, solves the problem of improving the process of proving guilt in a number of cases. For example, such as cases related to cartel collusion or artificial increase in energy resources’ prices or on other essential goods, since it allows them to be qualified as abuse of law. Therefore, it is necessary to legislate the prohibition of harm by the right holder and all other participants of civil circulation. Thus, the category of conscientiousness can turn into a legal matter. The foreign legal systems are familiar with some other ways of implementing this category. For example, in Greece, the protection of rights and freedoms are directly linked to the fact to what extent these rights and freedoms do not violate the Constitution and “good morals” (article 5 of the Greek Constitution), while the exercise of any right is prohibited if it goes beyond the limits, outlined by the notions of “good conscience”, “good morals” or socio-economic goal of law (Article 281 of the Civil Code of Greece). The requirements of conscientious execution of the obligations are contained in article 762 of the Civil Code of Portugal, and in article 1134 of the French Civil code. According to the Brazilian Constitution the President is responsible for “unfair” government2. It is advisable to develop criteria for determining dishonest actions that are still not fully understood in the domestic legislation in the majority of cases. Thus, dishonesty is very common in the domestic banking practice. When a consumer does not have a sufficient level of education or specialised degree in order to understand the meaning of numerous terms, he is unable to adequately assess all the terms of the contract and is forced to rely entirely on the conscientiousness of the bank that issues the loan. Another common example of bad faith – it is when the essential terms of the banking contract are printed in small print (for example, a service charge can exceed the commission percentage on the loan amount, etc. by 50% or more). This greatly complicates things, and in some cases makes it impossible (for example, for elderly people suffering from pathologies of the organs of vision) to read and understand these conditions in time.
1 See: Pa l a n dt . Bürgerlishes Gesetzbuch. Kommentar. 57. Aufl. München, 1998. S. 215. 2 Constitutions of States of American continent. Moscow. 1957. P. 127 KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 36
Great opportunities for unscrupulous manufacturer and seller arise with a great probability of mixing trademarks. Thus, sometimes manufacturers consciously create a trademark that contains such a number of elements similar to another trademark with good record that inevitably a confusion is very likely to arise. In this case, not only the degree of similarity between the trademarks but also the degree of similarity of the goods themselves is important. It means that with close proximity of “Nivea” and “Livia” beauty products and the resemblance of the products the likelihood of confusion is very high. On the other hand, when products of similar trademarks are used for different purposes, this probability is almost non-existent. To prevent such unfair actions it seems necessary to amend the Law of the Russian Federation of February 7th, 1992 ¹ 2300-1 “About protection of the rights of consumers” with provision, enforcing the implementers (vendors) to exercise good faith and to prevent unfair conditions in drawing up all civil law contracts. In our opinion, unfair contract terms are the terms that in some way infringe on the rights of the consumer, who is a weak party to the contract and who is to a certain extent forced to enter into contracts under proposed (imposed) conditions. This norm should be reflected in § 2 of Chapter 30, § 2 in chapter 34, § 2, Chapter 37 and Chapter 44 of Civil Code of the Russian Federation. Currently the Chinese civil society is confronted with such problems. The modern era of reforms and openness means for the Republic a serious break-up of old economic and ideological foundations, a reorientation from a centralized economy to private law relationships. The principles of civil law in this situation become the basic ideological postulates based on which it is necessary to form an effective law and order. Chinese jurists speak about the need for well functioning and ethically verified normative- legal base, about the internal reasonable legal constraints in the establishment of the institution of private property and at the same time about the impossibility to express in the law all the values of civil society1. However, attempts by Chinese colleagues to achieve this are distinctive and deserve the most assiduous attention. The specificity of the legal system of the PRC is determined by several circumstances. First of all, the legal culture of China goes back to the postulates of Confucian teachings, that had been influencing the state ideology of the Chinese Empire up until the revolution of 1911 – it is characterized by the dominance of morality norms over the law. Secondly, the legal order of China is a union of ancient legal traditions with modern legislation, which is based on the ideas of “socialism with Chinese characteristics” and some principles of Roman-Germanic law. This means that moral and ethical norms existed outside the law, as a positive option for the development of relationships, while the legislation has evolved as a means of conflict resolution. Therefore, the first Chinese codes contained only administrative regulations or norms that relate to criminal law. Civil law rules were formed only to establish criminal sanctions as a result of violation of norms of custom.
1 Ma Ch a n s h a n ’ Creation of civil society and civil law system in China // Civil law and its role in formation of civil society: col. of articles of International conference, Moscow, October, 21st, 2011, ex. ed. A.E.Sh e r s t o b i t o v . Statut, 2013 // SPS “KonsultantPlus”. Evgeny Vavilin 37
Today the General Provisions of the Civil law of the PRC focus on private relations between individual entities, between legal entities and between individual and legal entities that have equal status. The civil law is based on principles of the General Provisions of the Civil law of the PRC1 adopted at the 4th Session of the 6th National People’s Congress of the People’s Republic of China on April 12, 1986. Since the beginning of reform, the socio-economic situation in the state has changed significantly. For this reason the General Provisions of the Civil law of the PRC were amended at the closing session of the annual session of the National People’s Congress on March 15, 2017. The amendments were intended to enter into force on October 1, 2017. Legislators revised most of the General Provisions of 1986 and introduced a number of provisions that protect the rights of individuals and organizations more effectively. As before, principles of the civil law are: 1. principle of equality of parties in civil activity; 2. principle of voluntariness; 3. principle of justice; 4. principle of equivalent compensation; 5. principle of sincere trust; 6. principle of protection of legitimate interests of individuals and legal entities; 7. principle of legality of civil activity; 8. principle of prohibition of abuse of civil rights. The legal instruments and tools that provide implementation of the stated principles are of particular interest. The Chinese civil law principles are specified in normative legal acts in different spheres of law such as contracts, property rights, inheritance, patents, trademarks, copyright, etc. Thus, the principle of equality of parties in civil activity is established in Article 3 of the General Provisions of the Civil law. Equality of parties is most topical position of law as it serves to reduce the administrative element that has survived since the socialist management. Legal content of the principle of equal opportunities prescribes to protect one’s rights for all citizens regardless of nationality, race, sex, occupation, social origin, religious beliefs, education, property status, residence time in the country and equal responsibility for the violation of others’ rights, beyond any privileges. Article 4 of the law “Of property rights” establishes equal protection of the state, collective and private property rights. However today the equality of private property is hard to accomplish when buildings, that are personal property of citizens, are forcibly demolished for the benefit of public interests in the course of expropriation. This situation becomes possible due to collision between the law on property rights and Regulations on the Demolition of Urban Homes, adopted before the enactment of the law. According to the Regulations, the demolition of a building is allowed before the negotiation of compensation has completed, while the Decree on Compensation for
1 http://wwwchinalaw.gov.cn KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 38
Forced Demolition of Buildings stipulates that the decision to demolish must be taken solely in court, and compensation must be paid before dismantling. The right for compensation for the right holder is set by sec. 37 of Law of property rights, and sec. 38 sets the liability of violator for damage to the right holder, but it does not necessarily reduce tension in this sphere1. Practice shows that the principle of equivalent compensation very often does not work in situations with forceful expropriation of property. The main contradictions between the right holders and contractors in the situations of building demolition or expropriation of land are due to the inadequate amount of compensation. It is obvious that as a remedial measure, the order of equivalent compensations to right holders for demolition of housing or expropriation of land should be set in legislation. This is due to the socio-economic reasons in the situation when private property institute and dissociation of individuals’ private property from state are still in the process of development, as well as due to the lack of system of appropriate civil, procedural, administrative norms. Sec. 3, 4, 5 of Ch. 1 of Chinese “Law of contracts” set and concretize the equal status of counteragents. It is defined by three points: parties cannot impose their will on each other; an illegal intervention into the rights stemming from the contract is prohibited; while defining rights and obligations in the contract the parties have to follow the principle of equality. The last point directly influences the formation of contract conditions. It should be noted that the equality principle in Chinese legislation has more institutional and effective character than in other legal systems. Its establishment demonstrates a fundamental reconstruction of Chinese socio-economic system: individual property was only acknowledged as private property only by Chinese law of property rights of 2007. The same law establishes equality of private and state property protection, the state property loses any privileges in protection. In the Law of inheritance also concretizes this principle. According to sec. 13 of the Law the principle of equality in legal inheritance is provided by setting the size of property parts: parts of property inherited by the first-order heirs should be equal. The principle of voluntariness set in sec. 4 of General Provisions is also represented in other normative legal acts. Thus, sec. 4 of Chinese Law of contracts prescribes that parties are free in entering into a contract, organizations and other people are forbidden to illegally intervene into the contract relations of the parties. The most distinct is a principle of following the state policy in relations not regulated by law. Obviously, that principle is aimed not so much at economic relations as at maintaining state political fundamentals. It was noted that for Chinese legal system the problem of protection and promotion of citizens’ participation in national democracy is the most pressing.2 According to national legal scholars, Civil law should prepare
1 http://wangpa.livejournal.com/580541.html; http://www.snos.info
2 Lu Sh i g u o Protection and assistance: civil law and civil society development in China // Civil law and its role in formation of civil society: col. of articles of International conference, Moscow, October, 21st, 2011, ex. ed. A.E. Sh e r s t o b i t o v . Statut, 2013 // SPS “KonsultantPlus”. Evgeny Vavilin 39 citizens for participation in the life of society. However so far the provisions on creation, formation, subject of activity and cessation of legal entity for a public organization still need an active development and approbation. Taking into account that in Chinese nomocracy there existed a presumption of conscientiousness, while the norms of law entered into force only if the moral-ethic boundaries were violated, it is symptomatic that in the context of subjective freedom widening in market relations the prohibition of misuse of law appears in General provisions of civil law. This principle is concretized, for example, in sec. 39 of Chinese Law of contracts which establishes that “during drawing up a contract using standard conditions, the party offering standard conditions has to define rights and obligations of parties following the principle of justice, and should also reasonably ask another party to pay attention to the conditions that exclude or limit the liability of the offering party”. In a similar way the question on interaction of real estate owners is regulated. Thus, the norms have a common multidisciplinary character: sec. 83 of General Provisions of Civil law of PRC under which “all neighbors to the real estate property in the spirit of assistance for production and life improvement, mutual help, fairness and rationality must maintain good relations to each other in such questions as water sharing, neighboring territory passage, usage of illumination, etc”. Obviously this problem caused the need for Chinese legislator to use the term “public moral”. National legal scholars have started talking about the need for establishing by the letter of the law such principles as respect toward public welfare, protection of public interests and maintenance of the economic order1 . On March, 8th, 2017 at the Fifth Session of NPC of 12th convocation an instruction on developing general provisions of Civil Code was heard, where public moral was interpreted as public order and proper habits. We should admit that establishing in law of moral-ethical limitations in realization of subjective rights and obligations – is a demand of the civilized civil society. Legal scholars of Russia and People’s Republic of China follow the way of creation of main moral-ethical postulates in the letter of the law from their positions. The difficulty is in creation of adequate legal-technical tools and means of their establishment in legal systems with distinctive origins and structure in the world of constantly changing social and economic situation. Nevertheless it is obvious that only unified work experience in this sphere will give effective results and will help to create the developed national nomocracy.
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1 Ma Ch a s h a n ’. Mentioned work // The ATP “KonsultantPlus” KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 40
Ekonomika i pravo = Proceedings of the Academy of Sciences of the USSR. Economy and law. 1946. ¹ 6. P. 426. (in Russian) Bratus, S.N. O predelah osushhestvlenija grazhdanskih prav [On the limits of the exercise of civil rights] // Izvestija vuzov. Pravovedenie. = Proceedings of universities. Jurisprudence. 1967. ¹ 3. (in Russian) Chukreyev, A.A. Sub’ektivnye uslovija primenenija sankcij grazhdanskogo zakono- datel’stva o predprinimatel’skoj dejatel’nosti [Subjective conditions of imposing of civil law sanctions in business]: Thesis Diss. Candidate in Legal Science. Tumen’, 2003. p. 28. (in Russian) Dolgih, M.G. Juridicheskaja priroda nedobrosovestnoj konkurencii [Legal nature of unfair competition] // Zakonodatel’stvo = Legislation. 2003. ¹ 11. (in Russian) Grazhdanskoe pravo: Uchebnik: v 2 t. [Civil law: course book: in 2 volumes] / Ed. by E.A. Suhanov. 2nd issue, revised and enlarged. M., 1998. V 1. (in Russian) Gromov, N.V. Spory, svjazannye s primeneniem st. 10 GK RF [Discussions on implementation of Art. 10 of the Civil Code of the Russian Federation] // Kommentarij sudebno-arbitrazhnoj praktiki. Vyp. 4 [Commentary of arbitration practice. Issue 4] / Ed. by V.F. Jakovlev. M., 1997. (in Russian) Jakovlev, V.F. Rossija: ekonomika, grazhdanskoe pravo (voprosy teorii i praktiki) Akad. soc. nauk. Fond sodejstvija razvitiju soc. i polit. nauk [Russia: Economics, Civil Law (theory and practice). Academy of Social Sciences. Foundation for assistance to social development and political sciences]. M., 2000. (in Russian) Jaser Sulejman Hassan Mohammed. Grazhdansko-pravovaja zashhita ot zloupot- reblenija v prave Rossii i Jemena [Civil legal protection against abuse of the law of Russia and Yemen]: Thesis Diss. Candidate in Legal Science. Kazan, 2005. (in Russian) Kommentarij k Grazhdanskomu kodeksu Rossijskoj Federacii, chasti pervoj (postatejnyj) [Commentary on the Civil Code of the Russian Federation, Part One (itemized)]. 3rd ed., revised and edited by Sadikov H.E.. M., 2005. P. 35. (in Russian) Köhler H. Einführung // BGB. 33. Aufl. München, 1991. Kratkij juridicheskij slovar’ [Abridged legal dictionary] / Ed. by Malko A.V. M., 2007. P. 91. (in Russian) Kulikova, L.A. Zakon ili sudejskoe usmotrenie [Law or judicial discretion] // Juridicheskij mir = Law world. 2000. ¹ 12. P. 47–54; 2001. ¹ 1. P. 54–61; 2001. ¹ 2; P. 62–70 (in Russian) Lu Shiguo Zashhita i sodejstvie: grazhdanskoe pravo i razvitie grazhdanskogo obshhestva v Kitae [Protection and assistance: civil law and development of civil society in China] // Grazhdanskoe pravo i ego rol’ v formirovanii grazhdanskogo obshhestva: Sb. statej Mezhdunarodnoj konferencii = Civil law and its role in formation of civil society: col. of articles of International conference, Moscow, October, 21st, 2011, ex. ed. A.E. Sherstobitov. Statut, 2013 // The ATP “KonsultantPlus”. (in Russian) Ma Chanshan’ Sozdanie grazhdanskogo obshhestva v Kitae [Creation of civil society and civil law system in China] // Grazhdanskoe pravo i ego rol’ v formirovanii grazhdanskogo obshhestva: Sb. statej Mezhdunarodnoj konferencii = Civil law and its role in formation of civil society: col. of articles of International conference, Moscow, October, Evgeny Vavilin 41
21st, 2011, ex. ed. A.E. Sherstobitov. Statut, 2013 // The ATP “KonsultantPlus”. (in Russian) Malein, N.S. Juridicheskaja otvetstvennost’ i spravedlivost’ [Legal responsibility and fairness]. M., 1992. (in Russian) Maleina, M.N. Lichnye neimushhestvennye prava grazhdan [Personal non-property rights of citizens]: Thesis Diss. Candidate in Legal Science. M., 1997. (in Russian) Ozhegov, S.I. Slovar’ russkogo jazyka [Russian language dictionary]. M., 1987. P. 145. (in Russian) Palandt. Bürgerlishes Gesetzbuch. Kommentar. 57. Aufl. München, 1998. Postanovlenie Konstitucionnogo Suda RF ot 6 ijunja 2000 g. ¹ 9-P «Po delu o proverke konstitucionnosti polozhenija abzaca tret’ego punkta 2 stat’i 77 Federal’nogo zakona «O nesostojatel’nosti (bankrotstve)» [Decision of the Constitutional Court of the Russian Federation of June 6, 2000 No. 9-P “On the case on the verification of the constitutionality of the provision of the third paragraph of paragraph 2 of Article 77 of the Federal Law “On Insolvency (Bankruptcy)”] // Grazhdanskij kodeks Rossijskoj Federacii. S postatejnym prilozheniem materialov praktiki Konstitucionnogo Suda Rossijskoj Federacii, Verhovnogo Suda Rossijskoj Federacii, Vysshego Arbitrazhnogo Suda Rossijskoj Federacii [The Civil Code of the Russian Federation. With article-by-article appendix of materials of practice of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation]/ Compiled by D.V. Murzin. 2-e izd., pererab. i dop. M., 2003. (in Russian) Rjasencev, V.A. Uslovija i juridicheskie posledstvija otkaza v zashhite grazhdanskih prav [The conditions and legal consequences of denial of civil rights protection] // Sovetskaja justicija [Soviet justice]. 1962. ¹ 9. (in Russian) Sarbash, S.V. Ispolnenie objazatel’stv [Performance of duties] // Property and law. 2009. ¹3. P.28. (in Russian) Samojlova, M.V. Pravo zloupotreblenija pravom v sovetskom grazhdanskom prave [The right to abuse of law in Soviet civil law] // Izvestija Akademii nauk SSSR. Ekonomika i pravo = Proceedings of the Academy of Sciences of the USSR. Economy and law. 1946. ¹ 6. (in Russian) Tarkhov, V.A. Sovetskoe grazhdanskoe pravo [Soviet civil law]. Saratov, 1978. Part 1. P. 106. (in Russian) Yem, V.S. Principy osushhestvlenija grazhdanskih prav i ispolnenija objazannostej [Principles of realization of civil rights and performance of duties] // Civil law: Student book: in 2 vols. / Ex.ed. E.A. Sukhanov. 2nd edition. (in Russian) Zhalinskiy, A. Ryorikht, A. Vvedenie v nemeckoe pravo [Introduction to German law]. M., 2001. P. 309. (in Russian) Information about the author
Evgeny Vavilin (Saratov, Russia) – Doctor of Legal Science, Professor, Head of the Department of Civil Law, Vice-rector on research work of the Saratov State Law Academy (410056, Saratov, Volskay St., 1; e-mail: [email protected]). KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
Marat Zagidullin Candidate of Legal Sciences, Associate Professor of the Department of Environmental, Labor law and Civil Procedure of Kazan (Volga region) Federal University
TYPES OF LEGAL LIABILITY OF THE NOTARY: ACTUAL PROBLEMS
DOI: 10.24031/2541-8823-2017-2-4-42-55
Abstract: The article provides an analysis of the main types of legal liability of notaries and the recent changes in legislation and law enforcement practice for each of the types: civil, disciplinary, administrative and criminal. The system of control over the work of notaries and institute of their responsibility in recent years have undergone significant changes, which are positive in general, including: the Code of professional ethics of notaries in the Russian Federation has been approved, a multilevel system of compensation for property time and liability insurance has been constructed, insurance amounts have been increased, criminal liability has been increased, etc. At the same time, there is presumably a large number of latent offences committed by notaries while executing inexpensive or insignificant notarial acts that is a consequence of the ineffectiveness of traditional statutory means of control and the degree of liability of notaries. In particular, it has been revealed that often, when a notary commits an offense, the affected individuals and organizations do not make use of their statutory protection. As a result these offences are not detected, the offending notaries are not prosecuted, and negative potential accumulates in society. To solve the above problem, we propose to introduce at the legislative level different, non- traditional means of control and liability of notaries, such as a unified rating system and detailed statistics on the activities of each notary public as well as based on that a strict system of fines and other sanctions, an instant response to complaints from citizens and organizations, etc. A number of previously existing problems are still left unresolved; these problems are associated with the criminal liability of notaries, the absence of legal liability for an excessive amount of notarial acts performed by one notary at all. Keywords: legal liability, notary, notary system, latent offences, civil procedure. Marat Zagidullin 43
Notarial process plays an important role in every person’s life, most of the citizens of our country have consulted a notary at least once. Such popularity of notarial activities is particularly linked with the fact that today there is a legal implementation of compulsory notarization of a range of important documents and transactions. According to article 1 of the Fundamentals of the Russian Federation Legislation for Notary Activities1, the notary system in the Russian Federation serves to ensure, in keeping with the Constitution of the Russian Federation, constitutions of the Russian Federation’s constituent republics and these Fundamentals, the protection of rights and legitimate interests of citizens and legal persons through notarial actions provided for by legislative acts and performed by notaries in the name of the Russian Federation. The profession of a notary is a demanding one. Thus, according to scientists, “the level of training of every notary and their moral qualities should comply with the requirements enshrined in the current notarial law.2” Such a professional level also requires high responsibility. In view of the above, although the question of notaries’ responsibility has been studied by experts at some length, it still remains to be extremely relevant.3 It should be noted that the number of the notaries working in the state notary offices is extremely small. Thus, according to Federal Notarial Chamber, in 2013 there were 19 working notaries in the state notary offices while the number of private notaries was 7635.4 Thereforу it is deemed advisable to pay special attention to the responsibility of the notaries who are engaged in the private practice. The civil liability of the notary is covered by article 17 of the Fundamentals of the Russian Federation Legislation for Notary Activities, which states that a notary engaged in private practice takes full material responsibility for: − the damage inflicted through fault of their own to the property of a citizen or legal entity caused by notarial action contradictory to the legislation;
1 “Fundamentals of the Russian Federation Legislation for Notary Activities” (approved by the Supreme Court of the Russian Federation on 11.02.1993 N 4462-1). // Bulletin of the Congress of People’s Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 11.03.1993. N 10. P. 357.
2 Ve r g a s o v a R.I. Notariat v Rossii: Uchebnoe posobie [Notary system in Russia: Course book]. M .: Jurist, 2005. P.11.
3 See: An d r e e v a Iu.A. Iuridicheskaia otvetstvennost’ notariusov [Legal responsibility of notaries] // Zakony Rossii: opyt, analiz, praktika= The laws of Russia: experience, analysis, practice. 2012. N 3; Mo l c h a n o v a , E. A. Ugolovnaia otvetstvennost’ notariusov za zloupotreblenie polnomochiiami [Criminal liability of notaries for abuse of power]: Thesis Diss. Candidate of Legal science. Ryazan, 2010. 24 p. // URL:http://law.edu. ru/book/book.asp?bookID=1419584 The date of appeal:: 22.02.2017 Sa l a k h o v a E.M. Osobennosti grazhdansko-pravovoi otvetstvennosti notariusa, voznikaiushchei pri sovershenii notarial’nykh deistvii [Special aspects of civil liability of a notary arising in the performance of notarial acts]. URL: http://elibrary.ru/item.asp?id=12232014 The date of appeal: 22.02.2017 4 Analytical note to the statistical report “On the activity of notary chambers of the subjects of the Russian Federation and notaries engaged in private practice in 2013”. Moscow. 2014 // The date of appeal: 22.02.2017г. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 44
− the actual damage caused by unjustified refusal to provide notarial services or by disclosure of performed notarial actions. Apart from that, a notary engaged in private practice should take full material responsibility for the damage, caused through fault of their workers or by actions of a person temporarily acting for a notary, in the discharge of their duties connecting with notarial activity. Compensation for the damage, stated above, is made at several levels: − by insurance under the contract of liability insurance of notary activity, − if this insurance proves to be insufficient – by the insurance under the collective notary liability contract, − if the latter insurance proves to be insufficient – by the personal property of the notary, − if the property proves to be insufficient – by the Compensation Fund of the Federal Chamber of Notaries. This multilevel system of reparation stated above has been consistently built by the legislator. Thus, the version of the Act, operating since 30.12.2008, established that a notary engaged in private practice who had deliberately disclosed information about the executed notarial action or had performed a notarial action contradictory to the legislation of the Russian Federation, was obligated by court decision to compensate for the damage caused thereby. And the minimum amount of insurance stated was 100 times the minimum monthly wage fixed by the law, that is 10 000 rubles. The version of the Act, operating since 21.10.2014, established the compensation for damage by insurance, and if this insurance proved to be insufficient – by the property of the notary, engaged in private practice. In that version the requirements to the amount of insurance under the contract of liability insurance of the notary were considerably tightened, thus its amount had to be at least 2 000 000 rubles for the notary who had a notary office in the urban settlement, 1 500 000 rubles for the notary who had a notary office in the rural settlement and for the notary who was engaged in private practice and certified mortgage contracts – 5 000 000 rubles. The foregoing system has emerged already in the modern version of the act which has been operating since July of 2016, under which a notary who is engaged in private practice and who certifies mortgage contracts and also contracts of disposal of immovable property, now is obliged to sign the civil liability contract amounting to at least 5 000 000 rubles. Additionally, the compensation for damage to the customer has now been finally complemented with the disposal of notary’s property and with the funds of the Compensation Fund of the Federal Notarial Chamber1.
1 Sv e t l a n a So l o v ’e v a . Otvetstvennost’ notariusov [Responsibility of notaries]. URL: http://е-вариант.рф/ index.php/354-otvetstvennost-notariusov The date of appeal: 07.05.2017 Marat Zagidullin 45
The damage caused by a notary working at public notary’s office is compensated under article 1069 of the Civil Code of the Russian Federation. (Liability for the Harm Inflicted by State and Local Self-Government Bodies, and also by their Officials)1. Under this article the harm inflicted on an individual or a legal entity as a result of unlawful actions (inaction) of state and local self-government bodies or of their officials, shall be redressed at the expense of the state treasury of the Russian Federation, the respective subject of the Russian Federation or the respective municipal body. Due to the position that appears in judicial practice on the meaning of the article 17 of the Fundamentals of the Russian Federation Legislation for Notary Activities and articles 15 and 1064 of the Civil Procedural Code of the Russian Federation2, the assignment of property responsibility on the person for the damage caused requires establishment of the facts of harm occurrence, extent of the damage, wrongfulness of conduct of the perpetrator of harm, his fault and also cause-and-effect relationship between actions of the perpetrator of harm and the adverse consequence.3 Besides, as the Supreme Court of the Russian Federation indicated in the Review of Jurisprudence of the Supreme Court of the Russian Federation for the third quarter of 2011, “the person shall be found not guilty, if, taking into account the extent of the care and caution, required from them by nature of their duty and terms of the circulation, they have taken all the necessary measures to fulfil their duty” (the second paragraph of item 1 of article 401 of the Civil Code of the Russian Federation). A notary’s conduct can be considered as wrongful, if the notary while he was performing a notarial action broke the legislation providing the procedures to exercise notarial acts, as a result of which the violation of a subjective right occurred. In general, it is noted that a number of insured events under the contracts of risk insurance of notary’s professional responsibility is small. Thus, there were 20 payments of compensation in 2013, 11 in 20144 . At the same time, as specialists of insurance companies note, the largest amounts are paid in compensations under the contracts for sale of real estates which is quite natural, considering the high value of real estate5. But now this tendency has been reflected in the Law – in the version of Fundamentals
1 The Civil Code of the Russian Federation (Part II) of 26.01.1996 N 14-FZ. // Collection of the legislation of the Russian Federation. 29.01.1996, N 5, Art. 410. 2 The Civil Procedure Code of the Russian Federation of 14.11.2002 N 138-FZ. // Collection of the legislation of the Russian Federation.18.11.2002. N 46. Art. 4532 3 Апелляционное определение Верховного суда Республики Саха (Якутия) от 18.01.2016 по делу N 33-196/2016. // The ATP “ConsultantPlus”
4 Vl a d i s l a v Ku l i k o v . Notarius zaplatit za oshibku [The notary will pay for the error] // Rossiiskaia gazeta= Russian newspaper. 2015. N 6854. URL: https://rg.ru/2015/12/15/notarius.html The date of appeal: 22.02.2017
5 Me l e k h i n D.V. Strakhovanie professional’noi otvetstvennosti notariusov [Insurance of professional liability of notaries]. URL: https://notariat.ru/publ/zhurnal-notarialnyj-vestnik/archive/24143/24276/ The date of appeal: 22.02.2017г. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 46 of Russian Federation Legislation for Notary Activities operating since July of 2016, a notary engaged in private practice, who certifies mortgage contracts as well as contracts of disposal of immovable property, is now required to sign the civil liability contract amounting to at least 5 000 000 rubles. A notary working at public notary’s office, may be subjected to disciplinary liability under the Labour Code of the Russian Federation1. In turn, the disciplinary liability is provided for the notaries engaged in private practice by the Code of professional ethics of notaries of the Russian Federation2. Despite the large volume of the legal provision, it makes sense to quote in it entirety, since both the number of the described offenses and their concrete types are positively impressive. Thus, under the article 9.1 of the Code of professional ethics of notaries in the Russian Federation the disciplinary liability is established for a minor offense stipulated by the Code. Article 9.2. lists the following minor offenses: «9.2.1. violation of the rules and the order of performance of the notarial actions established by the legislation; 9.2.2. organizing work with violation of the requirements of the legislation, regulations of the Ministry of Justice of the Russian Federation, acts of Federal Notarial Chamber, the adoption of which is provided by the legislation; 9.2.3. violations of rules of notarial office work which have an ineradicable character; 9.2.4. non-execution of the decisions of the Notarial Chamber’s bodies made within their competence; 9.2.5. violation of the secrecy of notarial action performance; 9.2.6. loss of the personal stamp with the image of the National Emblem of the Russian Federation, registers for registration of notarial actions, archive of the notary, including the archives passed on to the notary for a temporary storage, forms and other official documents and materials, special data which allow to use the digital signature of the notary; 9.2.7. not informing the persons who applied for performance of notarial action, of the size of a notarial tariff, the cost of services of a legal and technical character and also of the privileges provided by the current legislation or decisions of Notarial Chambers; 9.2.8. engagement in entrepreneurial and other paid activity except teaching, scientific or other creative activities; 9.2.9. rendering intermediary services in concluding contracts; 9.2.10. performance of notarial action outside the established borders of the notarial district, unless otherwise provided by the law;
1 The Labor Code of the Russian Federation of 30.12.2001 N 197-FZ. // Collection of the legislation of the Russian Federation. 07.01.2002. N 1 (part 1). Art. 3. 2 The Code of Professional Ethics of Notaries in the Russian Federation (approved by the Ministry of Justice of Russia on January 19, 2016) // The ATP “ConsultantPlus” Marat Zagidullin 47
9.2.11. performance of notarial action under their name or on behalf of them, under the name or on behalf of their spouse, spouses’ and notary’s relatives (parents, children, grandsons); 9.2.12. performance of notarial action without insurance of risk of professional liability; 9.2.13. arbitrary modification of the size of the notarial tariff established by the Act, non-compliance with recommendations of Notarial Chamber about collection of payment for rendering services of legal and technical character; 9.2.14 use of money, values and other property transferred to the notary for the purpose, that differs from the one, that they were transferred for; 9.2.15. performance of notarial actions by a notary along with the person acting for a notary; 9.2.16. refusal in granting the privileges on payment of a notarial tariff provided by the current legislation; 9.2.17. involvement of other persons, except workers or trainees of the notary, in carrying out some clerical work, including preparation of draft documents, producing originals and copies, scanning documents and also registration, accounting, archiving of documents; 9.2.18. use of data which have become known in connection with the performance of notarial action to the detriment of interests of the applicant or for obtaining direct or indirect profit for the notary or other person; 9.2.19. non-compliance with the workplace culture at implementation of professional activity, including execution of professional duties in the state of alcoholic or other intoxication, under the influence of psychotropic drugs; 9.2.20. performing actions, including actions carried out in off-duty time which cause damage to professional activity of a notary or undermine trust and prestige of the profession in society; 9.2.21. absence of the permanent place for performance of notarial actions without valid excuse more than two months in a row or more than six months within a calendar year; 9.2.22. non-execution of duties and/or handing over their responsibilities without a valid excuse or with violation of the procedure established by the Ministry of Justice of the Russian Federation and Federal Notarial Chamber according to the legislation on Notary System; 9.2.23. refusal and/or unreasonable delay of providing documents during inspection of notary’s activity under the legislation and/or when considering proceedings for disciplinary liability; 9.2.24. carrying out actions hindering realization of the right of a person to apply to another notary; 9.2.25. derogation of professional honour and authority of other notaries and also of the Notarial Chamber and its bodies; KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 48
9.2.25. derogation of professional honour and authority of other notaries and also of the Notarial Chamber and its bodies; 9.2.26. failure to submit or untimely submission of data (documents) requested by the state body within the legally established time limits, and also failure to appear in state bodies to participate in examination of the case established by law; 9.2.27. placing information on the notarial activity with violation of the rules, established by the present Code; 9.2.28. violation of the restrictions, non-fulfilment or improper fulfilment of their obligations connected with informing the public of the activity; 9.2.29. failure to appear without valid excuse at a general meeting of notarial chamber members, as well as by the invitation of bodies and commissions of notarial chamber for consideration of execution of professional duties of the notary; 9.2.30. failure to pay within the established time frame the membership fees to the notarial chamber without valid excuse, as well as reducing the amount of fees or other compulsory payments; 9.2.31. failure to submit documents, oral and written clarification requested by notarial chamber bodies on issues falling within their competence; 9.2.32. failure to submit or untimely submission of the authentic statistical reports, as well as the data of financial and other character under the legislation of the Russian Federation, charters and decisions of bodies of the notarial chambers; 9.2.33. non-compliance with the duties provided by the charter of notarial chamber in addition to those mentioned in paragraphs 9.2.29 – 9.2.32 of the Code”. This code is a new law and its application practice is only in the stage of developing. Therefore it is hard to talk about the effectiveness of its norms. What can be definitely said is that such list of notaries’ disciplinary offences should raise the effectiveness of sanctions. At the same time some imperfections can be noticed. While the list of offences is compiled very meticulously, the list of disciplinary responsibility measures looks very poor. It contains only admonition, reprimand, severe reprimand and doesn’t specify which liability corresponds to which offence. In addition, a notary engaged in private practice is exempt from authority on the basis of court decision to deprive him of the right to notarial activity in the following cases: 1) conviction for committing an intentional crime – after the entry of the sentence into legal force; 2) restrictions on legal capacity or recognition as legally incompetent; 3) at the request of the notary chamber for repeatedly committing disciplinary offenses, violation of the law, as well as in case of inability to perform professional duties for health reasons (with a medical certificate available) and in other cases provided for by legislative acts of the Russian Federation (section 12 of the Fundamentals of Notary Legislation). Concerning item 3, part 2, article 12 of the Fundamentals of Legislation for Notary Activities, one can note its vague formulation, which is noted by the courts and that Marat Zagidullin 49 is reflected in the ruling of the Supreme Court of the Russian Federation in case No. 5-KG16-155. Thus, in the opinion of the court, the Fundamentals of Legislation of the Russian Federation on the notary system do not define the concept of “violation of the law” as the basis for the responsibility of a notary engaged in private practice, do not name the types and do not specify the nature of such violations.1 In this respect a quite interesting case should be mentioned: the Moscow City Notary Chamber took legal action against Milevsky V.G to deprive him of the right to perform notary actions. As it was noted, in 2011 and in 2012 notary Milevsky V.G. carried out, more than 500,000 notarial actions per year, which, in the opinion of the working group, indicates the completion of all notarial acts or some of them as a formality, in violation of the requirements of notary legislation. This problem of frequent overwork by notaries is also a consequence of yet another unresolved issue in the legislation of the Russian Federation – the absence of the specifics of the offense and sanctions for exceeding a reasonable number of notarial acts performed by the notary. Although this, as shown by various statistical documents, is very easy to identify. Criminal liability is provided for in section 202 of the Criminal Code2 of the Russian Federation for private notaries for using their powers contrary to the tasks of their activities and for the purpose of deriving benefits and advantages for themselves or others or harming others if this act caused significant harm to the rights and lawful interests of citizens or organizations or the interests of society or the state protected by law. This article provides for responsibility for such an act also for private auditors. The penalty for this crime is a fine in the amount of 100,000 to 300,000 rubles or in the amount of the wage or other income of the convicted person for the period of one to two years, or compulsory labor for up to 3 years with the deprivation of the right to hold certain positions or engage in certain activities for up to 3 years or without it, or by arrest for up to 6 months, or by imprisonment for up to 3 years, with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years. Under Part 2 of Article 202 of the Criminal Code of the Russian Federation for the same act, but committed against a minor or incapable person, a penalty in the form of a fine in the amount of 100,000 to 500,000 rubles or in the amount of the salary or other income of the convicted person for a period from one year to 3 years, or forced labor for the period of up to 5 years, with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years or without it, or by arrest for up to 6 months, or imprisonment for the period of up to 5 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years.
1 The ruling of the Supreme Court of the Russian Federation in the case No. 5-KG16-155 of November 21, 2016. // URL: http://www.vsrf.ru/stor_pdf.php?id=1504808. 2 The Criminal Code of the Russian Federation of 13.06.1996 N 63-FZ. // Collection of the legislation of the Russian Federation. 06/17/1996. N 25. Art. 2954. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 50
It should be noted that in addition to that a notary may be prosecuted under other articles of the Criminal Code as well. Thus, when providing related services, a notary may be brought to trial under sections 165 or 201 of the Criminal Code of the Russian Federation. Since 2016, a notary may be prosecuted under section 173.1 of the Criminal Code of the Russian Federation, for the submission of data that led to entering straw men into the Unified State Register of Legal Information. If a secret protected by law is disclosed during the performance of notarial acts or the provision of related services, responsibility also arises under Art. 183 of the Criminal Code. It should be noted that although there are only a few cases of raising legal actions and holding the notaries responsible, there is also some positive dynamics. Thus, according to the Federal Chamber of Notaries, in 2013 only three notaries were prosecuted1, while in 2015 – already 102. On the other hand, scientists in the field of the criminal law and the criminal process give a negative evaluation of such a small number of criminal cases. Thus, E.V. Vinogradova and P.A. Vinogradova note the following shortcomings of the Criminal Code: “... the formulation of the objective side of the crime in question does not allow us to identify clearly either a socially dangerous act for which a notary is criminally liable under art. 202 of the Criminal Code of the Russian Federation, nor socially dangerous consequences, entailing prosecuting a notary under this article. These factors raise doubts about the effectiveness of the criminal law in question ... On the subjective side, the abuse of one’s powers by notaries provides for guilt in the form of direct intent. At the same time, as an obligatory sign of the subjective side of the crime in question, the goal is to extract benefits and advantages for themselves or others or harm others. The nature of benefits the legislator also does not specify.3 “ The question of complaining about notarial actions in court is quite topical, thus, in 2013, the courts received 550 complaints about notarial acts and 1430 complaints about refusal to perform notarial acts. In a similar document of 2015, for some reason, there is absolutely no information on the number of complaints received by the courts regarding the notarial acts performed. Section 33 of the Fundamentals of the Russian Federation Legislation for Notary Activities stipulates that a refusal to perform a notarial act or an improper commission should be appealed against in court. By virtue of sec. 49 of the Fundamentals of the Russian Federation Legislation for Notary Activities, an interested person who considers the notarial act to be improper or who received a refusal
1 Monitoring of the activities of the Ministry of Justice of Russia and its territorial bodies in the sphere of notaries for 2013 // URL: https: //notariat.ru/ddata/label-file/analitika_za_2013.pdf Date of circulation: 22.02.2017. 2 Monitoring of the activities of the Ministry of Justice of Russia and its territorial bodies in the sphere of notaries for 2015 // URL: http://minjust.ru/en/2015-god/.
3 Vi n o g r a d o v a EV, Vi n o g r a d o v a P.A. Responsibility of notaries for abuse of authority: issues of lawmaking and law enforcement // Notary. 2015. N 7. P. 26 – 28. The ATP “ConsultantPlus”. Marat Zagidullin 51 in provision of a notarial act is entitled to file a complaint to the district court at the location of the state notary office (notary engaged in private practice). The procedure for reviewing such cases by the courts is regulated by Chapter 37 of the Civil Procedure Code of the Russian Federation – Processing of applications about notarial acts preformed or about refusal to perform them, Subsection IV – Special Proceedings. According to sec.310 of the Code of Civil Procedure of the Russian Federation, the person concerned can apply to court regarding a wrongful notarial action or refusal to perform a notarial act. Such an application shall be filed at the location of the notary or at the location of the official authorized to perform notarial acts within 10 days from the day the applicant became aware of the notarial action performed or of the refusal to perform the notarial act. According to sec. 312 of the Code of Civil Procedure of the Russian Federation, the decision of the court, which is satisfied with the application regarding the notarial act or refusal to perform it, cancels the notarial act performed or orders to carry out such an act. Let us remind that under sec. 48 of Fundamentals of the Russian Federation Legislation for Notary Activities a notary refuses to perform a notary action if: such action contradicts the law; the action should be performed by another notary; an incapable person or a representative without the required authorization seeks a notary action; the transaction made on behalf of the legal entity contradicts the goals fixed in its charter or statute; the transaction does not meet legal requirements; documents handed for the notary action do not comply with legal requirements; facts in the documents are not verified in the proper form, if such is required by the legislation of Russian Federation. On request of the person who was denied of a notary action, the notary should state the reasons for refusal in the written form and explain the appeal procedure. In such cases no later than in 10 days from the day of the notary action performed, the notary issues an order on refusal to perform a notary action. Discussing a complaint procedure with regards to notary actions or refusal to perform such, we should pay attention to the fact that according to statistics in 2013 and 2015 more than 60 millions of notary actions were performed each year. The approximate mathematical calculation shows that roughly 0,0025% of actions were complained on, in other words out of 40 000 performed notary actions only one is complained on. The reasons for such situation may be: 1. positive, i.e. really high quality of a notary’s work, individuals’ and entities’ satisfaction, 2. negative, i.e. a deliberate disuse of complaint procedure by individuals and entities due to the ineffectiveness of it. The review of legal literature on this problem prompts us to see the second reason more real. Thus N. Plastilina in her article “Mistakes and fraud of notaries” notes that “it is extremely difficult to make notaries accountable for the mistakes made or for fraud… The large number of cases when notaries showed irresponsibility with regards to their obligations, to the duty given by the legislator, and the decisions of courts on the KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 52 disputes between individuals and notaries show that notaries do not afraid of material responsibility… rare claimant can prove their guilt and violation of law1. Another factor that prevents individuals and organizations from complaining about actions, inactions and refusals of notaries may be the disproportion between The amount of time and money spent on one hand and the cost and importance of the notary action on the other hand. Practicing lawyers observe this fact2. This observation is also supported by a large volume of different non-scientific sources on the Internet, particularly, by the massive number of forum pages, chats, social networks found by search engines etc, and also video files when you search words “notaries’ anarchy”, “notary’s irresponsibility”, etc. These sources are full of negative remarks on notaries’ work and supposed ineffectiveness of complaint procedures in many cases. Of course, each of these sources cannot be a credible validation or convincing opinion. At the same time a great number of them signifies the existence of problems. Also this latent factor was pointed out by the President of Federal Notary Chamber M.I. Sazonova: “The absence of demand for notary service is due to the shortcomings in the Fundamentals of the notary legislation, lack of the proper law-based state supervision of notary work, lack of precisely marked notary’s status, his liability and as a consequence rather big negative potential in corporate community: initiated criminal proceedings, manifestation of irresponsibility, lack of discipline, low legal service culture, internal conflicts etc.”3. Therefore we should think about introduction of a completely different approach toward notaries’ work supervision and their liability at least in the sphere of “small” services, where the opinion “it’s easier to find another notary than to complain” is being popular. As an example of different means, an introduction of a single feedback system on the work of every notary, more detailed statistics derived from it and a system of fines based on it may be offered. Also the processing time for complaints on notaries should be reduced drastically. As another improvement, a creation of a single hotline for the immediate recording and elimination of misconduct can be offered. The author is planning to present a more detailed explanation of this initiative in future articles, while the goal here was to frame the issue. The administrative liability for notaries is set by p. 2 sec.15.6 of the Code of Admi- nistrative Offences (CoAO) of the Russian Federation4, according to which notary’s
1 Pl a s t i n i n a N. Oshibki i moshennichestva notariusov [Errors and fraud of notaries] // Zhilishchnoe pravo = Housing law. 2016. N 9. P. 71-82.
2 See: Ro m a n Al y m o v . Rossiiskii notariat v tsifrakh [Russian notary in figures]. URL: https://zakon.ru/ blog/2012/8/20/rossijskij_notariat_v_cifrax. The date of appeal: 06.05.2017; Po l i n a Ku z n e t s o v a . Notarial’nyi bespredel [Notarial lawlessness]. URL: http://kobzew.ru/materialy/notarialnyi-bespredel. html. The date of appeal: 07.05.2017
3 Sa z o n o v a M.I. Nado obespechit’ prozrachnost’ i effektivnost’ notarial’noi deiatel’nosti [It is necessary to ensure transparency and effectiveness of notarial activities] // Notarial’nyi Vestnik” = Notarial Bulletin. 2010. N 01. P. 7-15. 4 The Code of the Russian Federation on Administrative Offenses of 30.12.2001 N 195-FZ. // Collection of the legislation of the Russian Federation. 07.01.2002. N 1 (part 1), Art. 1. Marat Zagidullin 53 violation of terms of informing tax authorities on individuals and organizations stipulated by legislation, or presenting such information incomplete or distorted incurs a fine from 500 to 1 000 roubles. According to the opinion of the Supreme Court since executing notary functions in the name of the state predetermines their public law status it also leads to the need for organizing the effective state supervision over their work, including the notaries involved in private practice1. Today the supervision is done in the following way: 1. refusal of notary action execution or a wrong execution of a notary action – by court procedures; 2. supervision over the execution of professional obligations by notaries working in state notary offices – by Ministry of Justice of the Russian Federation and its territorial organs; 3. supervision over the execution of professional obligation by notaries of private practice – by notary chambers; 4. supervision over the compliance with the rules of notary paperwork by notaries working in state notary offices – by territorial organs of Ministry of Justice of Russian Federation; 5. supervision over the compliance with the rules of notary paperwork by notaries of private practice – by territorial organs of Ministry of Justice of the Russian Federation together with notary chambers of Russian Federation subjects; 6. supervision over compliance with tax legislation – by tax authorities. Thus, in the view of the foregoing we can make the following conclusions. 1) Today the system of liability of a notary is represented by all the main types: civil, disciplinary, administrative and criminal; 2) Supervision system over notary work and the liability institute has changed drastically over the recent years which as a whole are of positive outcome, namely the Code of professional ethics of notaries in the Russian Federation was adopted, multilevel system of property damage reparation and liability insurance were introduced, insurance amount was increased and criminal liability widened, etc. 3) At the same time there is a big number of latent offences committed by notaries while executing notary actions of low price or importance, which is a consequence of the ineffective traditional notary supervision and liability degree established by law. Particularly it is found that often despite the offence committed by a notary the aggrieved individuals and organizations do not use the means of protection established by law. Therefore the offence remain hidden, the violating notaries escape justice and the negative opinion is growing in the society. 4) For solving this problem it is offered to establish different non-traditional means of supervision and liability of notaries on the level of legislation, for example: a single
1 Appeal definition of the Supreme Court of the Russian Federation of 13.08.2015 N APL15-312. // The ATP “ConsultantPlus”. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 54 system of ratings and detailed statistics of every notary and a strict system of fines and other liability means based on it, system of immediate reaction to individual’s complaints or complaints by organizations, etc. 5) A number of previously existed problems remained unsolved, such as bringing notaries to criminal justice, lack of legally specified liability of the exceeding number of notary actions by one notary, etc.
References
Alymov R. Rossiiskii notariat v tsifrakh [Russian notary system in figures]. URL: https://zakon.ru/blog/2012/8/20/rossijskij_notariat_v_cifrax. (in Russian) Andreeva Iu.A. Iuridicheskaia otvetstvennost’ notariusov [Legal responsibility of notaries] // Zakony Rossii: opyt, analiz, praktika= The laws of Russia: experience, analysis, practice. 2012. N 3. (in Russian) Efimenko E. Verkhovnyi sud rasshiril otvetstvennost’ notariusov [The Supreme Court expanded the responsibility of notaries]. URL: https://pravo.ru/review/view/137551/ (in Russian) Kulikov V. Notarius zaplatit za oshibku [The notary will pay for the errors] // Ros- siiskaia gazeta= Russian newspaper. 2015. N 6854. URL: https://rg.ru/2015/12/15/ notarius.html (in Russian) Kuznetsova P. Notarial’nyi bespredel [Notarial lawlessness]. URL: http://kobzew. ru/materialy/notarialnyi-bespredel.html. (in Russian) Melekhin D.V. Strakhovanie professional’noi otvetstvennosti notariusov [Insurance of professional liability of notaries]. URL: https://notariat.ru/publ/zhurnal-notarialnyj- vestnik/archive/24143/24276/ (in Russian) Molchanova, E. A. Ugolovnaia otvetstvennost’ notariusov za zloupotreblenie polnomochiiami [Criminal liability of notaries for abuse of power]: Thesis Diss. Candidate of Legal science. Ryazan, 2010. 24 p. (in Russian) Plastinina N. Oshibki i moshennichestva notariusov [Errors and fraud of notaries] // Zhilishchnoe pravo = Housing law. 2016. N 9. P. 71-82. (in Russian) Sazonova M.I. Nado obespechit’ prozrachnost’ i effektivnost’ notarial’noi deiatel’nosti [It is necessary to ensure transparency and effectiveness of notarial activities] // Notarial’nyi Vestnik” = Notarial Bulletin. 2010. N 01. P. 7-15. (in Russian) Salakhova E.M. Osobennosti grazhdansko-pravovoi otvetstvennosti notariusa, voznikaiushchei pri sovershenii notarial’nykh deistvii [Special aspects of civil liability of a notary arising in the performance of notarial acts]. URL: http://elibrary.ru/item. asp?id=12232014(in Russian) Solov’eva S. Otvetstvennost’ notariusov [Responsibility of notaries]. URL: http://е- вариант.рф/index.php/354-otvetstvennost-notariusov. (in Russian) Vergasova R.I. Notariat v Rossii: Uchebnoe posobie [Notary system in Russia: Course book]. M .: Jurist, 2005. P.11. (in Russian) Marat Zagidullin 55
Vinogradova E.V., Vinogradova P.A. Otvetstvennost’ notariusov za zloupotreblenie polnomochiiami: voprosy pravotvorchestva i pravoprimeneniia [Responsibility of notaries for abuse of power: issues of lawmaking and law enforcement] // Notarius = Notary. 2015. N 7. P. 26-28. (in Russian)
Information about the author
Marat Zagidullin (Kazan, Russia) – Candidate of Legal Sciences, Associate Professor of the Department of environmental, labor law and civil procedure, Kazan (Volga region) Federal University (Kazan, Kremlyovskaya St., 18; e-mail: zagidullin. [email protected]). KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
COMMENTARIES
Patryk Kalinowski The research Centre for Eastern European and Central Asian Law, Faculty of Law and Administration, University of Warsaw, The Gabriel Shershenievich Institute of Eastern Law
THE OUTLINE OF PRINCIPLES OF AGRICULTURAL PROPERTIES TRADE IN POLAND
DOI: 10.24031/2541-8823-2017-2-4-56-65
Abstract: This paper analyzes major issues connected with real estate trade in Poland and presents the basic regulations for trade in agricultural real estate. Considering history of Poland, nowadays regulations have some specifics. For instance, in Polish law, the concept of the “Land Code”, as it is known in Russia, has never appeared. The author gives short a review of the historical steps of development of legislation in this sphere and gives terms of the Polish doctrine of agricultural law. In the introduction, the author presents a concept of real estate trade within the doctrine of agricultural law and the definition of agricultural real estate. Next, he shows major real estate law institutions as opposed to civil law institutions and others. Particular attention is given to specific, controversial agricultural law regulations related to agricultural real estate trading. The author refers to regulations of superior provisions of Polish Constitution and European Union Law. Keywords: agricultural real estate, agricultural real estate trade, principles, trade, Polish law, Poland
1. Preface
The current Polish regulations regarding the agricultural real estate trading concern two basic areas – private property and state property. On the wave of liberalism in the 1990s, virtually all restrictions were imposed on the trade of agricultural real estate in the Patryk Kalinowski 57 private sector. The state-owned real estate was generally intended to be privatized. Such a state of affairs, however, did not last long. The very process of Poland's accession to the European Union, finalized in 2004, resulted in the introduction of certain restrictions in the common trade of agricultural real estate in order to protect family farms. In recent years, this trend has intensified. In 2015, strong restrictions on private trading were introduced, and the sale of state-owned agricultural real estate was discontinued. Such a state of affairs results from a number of reasons. One may distinguish the basic ones, i.e. a constant tendency for rapid growth in agricultural property prices in Poland, which in itself makes it harder to acquire for the average farmer, and the possibility of speculating in agricultural real estate or a fear that Polish agricultural real estate will be bought by richer farmers from Western Europe. It seems that there has been a breakthrough and a permanent abandonment of the earlier liberal approach in the sphere of agricultural property1 in favor of a protectionist approach that will evolve in the future. This article aims to present the basic regulations for trade in agricultural real estate in Poland. Firstly, the definition of agricultural real estate and the understanding of trade in agricultural real estate will be presented. Next, basic civil and administrative legal procedures related to the trade in agricultural real estate will be outlined. These will be further combined with the assumptions of the Act on Shaping of the Agricultural System and the Act on the Acquisition of Real Estate by Foreigners. A separate chapter will be dedicated to the trade of state-owned real estate. The whole regulation will finally be related to the requirements of European Union law.
2. The concept of real estate trade within the doctrine of agricultural law and the definition of agricultural real estate in Polish law
In Polish law, the concept of the Land Code, known in Russia, has never appeared. This is due to the fact that the People’s Republic of Poland (1944-1989) never carried out the universal nationalization of agricultural land. The Polish civil law was unified for the first time in 1945-46 (in 1918, Poland inherited 5 civil law orders after the German Empire, the Austro-Hungarian Empire and the Russian Empire). The civilian solutions developed on the basis of the European legal tradition have been preserved in it. The 1964 Civil Code (which is still in force) introduced principles of real estate trade, while the definition of agricultural property was outside the Code, even though it existed earlier2. In 1990, when a significant set of amendments to Civil Code were introduced in order to adapt it to the free market needs, the concept of agricultural property appeared in the Civil Code as an Article 461: “Agricultural real estate (agricultural land) is any real estate which is or may be used to conduct agricultural production, both crop and animal farming, including gardening,
1 See: Lichorowicz A. Perspektywy nowej regulacji obrotu gruntami rolnymi (uwagi wprowadzające) [Perspectives of new agricultural properties trade regulation (introductory comments) / „Studia Iuridica Agraria”, 2010, vol. VIII. p. 7. 2 Prawo rolne [Agricultural law] / Czechowski (eds.). Warsaw , 2015, p. 158-9 . KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 58 horticulture and fish farming”. “The ideas of ”agricultural real estate” and ”agricultural household”, as used in the Civil Code, refer to the criterion of ownership”1. Moreover, for the agricultural real estate trade, the modification of this definition, placed in the Art. 1 of the Act on Shaping of the Agricultural System in 2003 with the aim of implementing legal instruments associated with the Poland’s accession to the European Union in the Polish legal system, is crucial. It provides that agricultural real estate is an agricultural property within the meaning of the Civil Code, “excluding real estates located in areas designated in spatial development plans for purposes other than agricultural.” The Polish doctrine of agricultural law distinguishes the term of agricultural property trade in a broader and in a narrower scope2. In the broader scope (sensu largo), the real estate trade includes all forms of transfer of rights to use real estate3, including changes (within the legal meaning) of the agricultural producer, changes in ownership through the transfer of ownership of agricultural property and farm inheritance, transfer of farms to successors to the State Treasury, and real estate lease4. The trade in a narrower scope (sensu stricto) applies only to changes in ownership made through legal acts5. This is not the only demarcation between these approaches proposed in the legal doctrine6. Nevertheless, I accept the first, broader scope of the term in order to present a full picture of the possibilities of participation in agricultural real estate trade in Poland, both in private and state-owned real estate trading.
3. Methods of the agricultural real estate trading
Within the boundaries of the abovementioned, broader scope of understanding of the term of the agricultural real estate trade, generally there are following civil acts leading to executing such trade: 1. a contract of sale, 2. a contract of donation, 3. a contract for life, 4. an exchange agreement,
1 Stefańska K., Pojęcia „nieruchomość rolna” i „gospodarstwo rolne” w ujęciu kodeksu cywilnego i ich znaczenie dla legislacji prawnorolnej / „Studia Iuridica Agraria. 2009, v. VII, p. 103. 2 Czechowski P., Prutis S. Grunty rolne: problemy prawno-organizacyjne [Agricultural lands: legal and organizational problems]. Warsaw, 1985. p. 20 (in Polish). 3 Prawo rolne …, p. 161. 4 Czechowski P. Ewolucja stanu prawnego w zakresie obrotu nieruchomościami rolnymi [Evolution of agricultural real estate trade regulations] // Realizacja ustawy kształtowaniu ustroju rolnego. Materiały pokonferencyjne [Implementation of Act on Shaping of the Agricultural System]. Warsaw, 2004. p. 117. 5 Prawo rolne…, ibid. 6 See: Lichorowicz A. Dzierżawa gruntów rolnych w ustawodawstwie krajów zachodnioeuropejskich (studium prawno-porównawcze) [Lease of agricultural lands in the West Europe countries (a comparative law study)]. Cracow ,1986. Patryk Kalinowski 59
5. an agreement with the legal successor, 6. inheritance, 7. a lease contract. The following methods deriving from administrative law provisions should also be mentioned: 8. handing over a farm in exchange for a structural pension, 9. the right to purchase by the National Center for Support of Agriculture, 10. acquisition through embraced integration. I leave other contracts forming the basis on which the transfer of a real estate ownership may occur outside the scope of my considerations – as an example, Articles of Association that may include a real estate as a contribution.
3.1. Civil acts
The Polish Civil Code1 remains the basic source of agricultural property sale methods. Sales contracts are settled there (mainly Articles 535 and following), as well as a contract of donation (Article 888 and following), a contract for life (Polish: “dożywocie”; Article 908 and following) – meaning that the real estate property is transferred in exchange for life-long maintenance of the seller by the buyer. The exchange agreement is regulated in Articles 603-604. I will omit to describe civil acts in detail. I would point out that a notarial deed is needed for the validity of such contracts. The contract of sale and the lease contract are of fundamental importance to the market. Contracts with a successor are civil in nature, although these are regulated outside the Civil Code. It is governed by Art. 84 and following of the Act of 20 December 1990 on Social Insurance for Farmers2. It boils down to the fact that the farmer who owns the farm agrees to transfer to a person younger than him at least 15 years (the successor) ownership and possession of the farm at the moment of acquiring the right to a retirement or invalidity pension, if the heir works on this farm to this time. The 1990s brought erosion of a previously developed separate system of inheritance of farms. The liberal amendments to the Civil Code and the ruling of the Constitutional Tribunal of January 31, 2001 (P 4/99) led to the situation that previous regulations became almost pointless. Therefore, agricultural properties are inherited on general principles (Book Four of the Civil Code – Inheritance), subject to the restrictions of the Act on Shaping of the Agricultural System and the Act on the Acquisition of Real Estate by Foreigners. The lease contract has great practical importance, albeit a poor regulation. It is governed by Articles 693 – 709 of the Civil Code and the preceding rent regulations. This form of regulation is the result of the desire to limit the trade of agricultural real estate during the socialist era. After 1989, the lease contract, including long-term lease, did not
1 Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Dz.U. 1964 nr 16 poz. 93). 2 Ustawa z dnia 20 grudnia 1990 r. o ubezpieczeniu społecznym rolników (Dz.U. 1991, nr 7, poz. 24). KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 60 get a new comprehensive regulation like in Western European countries. It should only be noted that there is a requirement to pay for the lease of agricultural real estate.
3.2. Other methods
The transfer of a farm for a structural pension, or, officially, a «contract for the transfer of an agricultural holding» is regulated in the Act of 26 April 2001 on Structural Pensions in Agriculture1. Under this institution, the farmer sells his own farm by way of an agreement, or the State Treasury, via an administrative decision, acquires the ownership of agricultural real estate free of charge. The farmer who fulfills certain conditions, e.g. on age, gains a right to structural pension for 5 years, which is a very similar benefit to a regular agricultural pension. The right to purchase by the National Center for Support of Agriculture (Krajowy Ośrodek Wsparcia Rolnictwa) is an institution under the 2003 Act on Shaping of the Agricultural System2. It consists of a unilateral declaration of the abovementioned authority’s will to acquire an agricultural property within one month of the transfer of ownership of the property under a different contract than a contract of sale. It is almost unused in practice. In the same Act, a right of preemption of the agricultural real estate by the NCSA is regulated. The Article 3 of the Act provides that in a situation when an empowered lessee does not use his right of preemption, that right is passed to the NCSA. This right also applies when someone sells shares in companies which holds an agricultural real estate (Art. 3a). Proceeding mentioned in the Act of March 26, 1982 on Merging and Exchange of Lands3 refers to a situation in which a very fragmented agrarian structure exists in a given area. Using this procedure, it is possible to achieve an effect that could be solved by at least a dozen civil sale or exchange contracts. Despite the fact that it is time consuming, this procedure significantly reduces costs of the trade.
3.3. Trading of real estate owned by the State Treasury Agricultural Property Stock
The conclusion of a sale or lease agreement (only these are permitted) regarding a real estate owned by the State Treasury Agricultural Property Reserve is generally preceded by a tender. Pursuant to the Act of 14 April 2016 on Suspending the Sale of Real Estate of the Agricultural Property Resource of the State Treasury and on Amending Certain Acts4,
1 Ustawa z dnia 26 kwietnia 2001 r. o rentach strukturalnych w rolnictwie (Dz.U. 2001 nr 52 poz. 539). 2 Ustawa z dnia 11 kwietnia 2003 r. o kształtowaniu ustroju rolnego (Dz.U. 2003 nr 64 poz. 592). 3 Ustawa z dnia 26 marca 1982 r. o scalaniu i wymianie gruntów (Dz.U. 2014 poz. 700). 4 Ustawa z dnia 14 kwietnia 2016 r. o wstrzymaniu sprzedaży nieruchomości Zasobu Własności Rolnej Skarbu Państwa oraz o zmianie niektórych ustaw (Dz.U. 2016 poz. 585). Patryk Kalinowski 61 which entered into force on January 1, 2016, a moratorium on the sale of state-owned real estate was introduced (with certain exceptions, e.g. excluding real estate smaller than 2 ha). Currently, mainly lease is possible. The Act of 19 October 1991 on the Management of Agricultural Property of the State Treasury1 is of fundamental importance for the trade of these real estates.
4. Restrictions on trade in agricultural real estate in the light of the Act on Shaping of the Agricultural System
The Act of 11 April 2003 on Shaping of the Agricultural System is the basic act of Polish agricultural law affecting the trade of agricultural real estate. Its main purpose mentioned in the preamble is “to strengthen the protection and development of family farms”. Therefore, all restrictions on trade in agricultural property should be viewed through the prism of this constitutional principle. Its current shape dates back to 2015 and by restricting the trade of agricultural real estate through the following regulations, it provokes great controversy. The act stipulates that, generally, only an individual farmer can buy an agricultural property (Article 2a.1). There are exceptions for, e.g., persons closely related to the seller, territorial self-government units, State Treasury, churches and religious associations, national parks (in the case of purchase of agricultural real estate for purposes related to nature conservation), trade resulting from inheritance and specific bequest (Article 2a (3)). In addition, the exclusion included producer groups, agricultural cooperatives and commercial law companies conducting agricultural activity. In other cases, the General Director of the National Center permits to purchase an agricultural real estate when legal conditions listed in the Act are met. According to the Art. 2a paragraph 4, the consent is given 1) on the seller’s request, if he proves that it was not possible to acquire an agricultural property by those entitled to participate in the trade, that as a result of the acquisition there will be no excessive concentration of agricultural land and that the buyer guarantees proper agricultural activity, or 2) on request of a natural person who intends to set up a family farm under certain conditions. Practice shows that in the case of approx. 90% requests the authority issues a positive decision. The maximum size of a family farm being 300 ha of agricultural land (Article 2a. sec. 2) and the obligation to run a family farm for 10 years in the event of acquisition of agricultural property (Article 2b sec. 1) was established. One may be released from these obligations by the court. The Act on Shaping of the Agricultural System also defines an individual farmer – it is a natural person who is an owner, perpetual usufructuary, an independent holder or a tenant of agricultural real estate with a total area of agricultural land not exceeding
1 Ustawa z dnia 19 października 1991 r. o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa (Dz.U. 1991 nr 107 poz. 464). KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 62
300 ha, who has agricultural qualifications and inhabited the municipality of at least one agricultural real estate included in the farm for at least 5 years, and who has been personally running the farm during that period (Article 6.1). In the light of these regulations, not every actual farmer is an individual farmer entitled to purchase agricultural real estate without obtaining consent. However, not all agricultural household constitute family farms.
5. Foreigners and foreign legal persons in the field of agricultural real estate trade
Foreign natural persons and legal persons are entitled to participate on the same terms as Polish entities, subject to the Act of 24 March 1920 on the purchase of real estate by foreigners1. This Act defines a foreigner as 1) a person who does not have Polish citizenship; 2) a legal person established abroad; 3) a company without legal personality, established by persons listed in point 1 or 2, having its registered office abroad, created in accordance with the legislation of foreign states; 4) a legal person and a commercial company without legal personality established in the Republic of Poland, controlled directly or indirectly by persons or companies listed in points 1, 2 and 3. A commercial company is considered to be controlled, when a foreigner or foreigners have directly or indirectly over 50% of votes at the shareholders’ meeting or the general meeting, even as a pledgee, a user, or on the basis of agreements with other persons, or they hold a dominant position within the meaning of the Polish Commercial Companies Code. In the case of agricultural real estate, the act requires foreigners to obtain the consent of the Minister of the Interior in consultation with the Minister of Agriculture and Rural Development (article 1 section 1). In practice, the latter consults the competent Chamber of Agriculture, which prolongs the long-lasting procedure. The requirement to obtain consent (is excluded for not required? or only for?)citizens and entrepreneurs of the countries of the European Economic Area or the Swiss Confederation (article 8 section 2). Acquisition of real estate is understood as the acquisition of ownership of real estate or perpetual usufruct right, based on each legal event (article 1 section 4). In order to issue a positive decision on this subject, the foreigner must meet a total of two conditions: 1) the acquisition of real estate by a foreigner will not cause a threat to defense, state security or public order, and social policy and public health reasons do not contradict it; 2) they show that there are circumstances confirming their ties with the Republic of Poland (article 1a). A foreigner, in order to conduct agricultural activity, may acquire as much land as it is “justified by the real needs resulting from the nature of the business activity performed (article 1a section 5). Acquisition of real estate by a foreigner against the provisions of the Act is invalid (article 6 section 1). This statement is made by the court.
1 Ustawa z dnia 24 marca 1920 r. o nabywaniu nieruchomości przez cudzoziemców (Dz.U. 1920 nr 31 poz. 178). Patryk Kalinowski 63
6. Trade in agricultural real estate in the light of the Constitution and European law
Recently introduced changes in the agricultural real estate market caused a very lively discussion on their constitutionality and compliance with the law of the European Union, which Poland should follow as its member. This issue seems simpler in the case of compliance with the Constitution of the Republic of Poland of April 7, 19971 although the Constitutional Tribunal currently considers compliance with ? several provisions of the Act on Shaping of the Agricultural System (case reference number K 36/16). The constitutional law doctrine clearly distinguishes the constitutional requirements relating to the regulation of private trading from trading properties owned by the State Treasury2. Regulations regarding real estate trading, having the strongest civil law – ownership rights is at their center, should guarantee this ownership (article 21), allow to use the freedom of establishment (article 22), and, above all, remain proportional to their intended purposes (article 31 section 3). With the latter, the most doubts may arise as to the legitimacy of individual solutions – excessive interference in the market can hinder the process of strengthening family establishments3. They are defined in the constitution as the basis of the state’s agricultural system (article 23). Unfortunately, the Polish constitution lacks a provision referring directly to agricultural land and its protection. The European Commission is currently conducting several proceedings against countries that have recently introduced restrictions on the marketing of agricultural real estate (including proceedings against Poland, Hungary and Lithuania). These restrictions would violate the principle of free movement of capital – one of the four basic principles of the European Single Market set out in the Treaty on the Functioning of the European Union4 (article 63 and 66). Nevertheless, even though the regulations on agricultural real estate trading are generally included in the capital flow (after all, the land is the best capital investment), they remain under the exclusive competence of the Member States5.
1 Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. uchwalona przez Zgromadzenie Narodowe w dniu 2 kwietnia 1997 r., przyjęta przez Naród w referendum konstytucyjnym w dniu 25 maja 1997 r., podpisana przez Prezydenta Rzeczypospolitej Polskiej w dniu 16 lipca 1997 r. (Dz.U. 1997 nr 78 poz. 483). 2 Wiącek M., Konstytucyjne aspekty ograniczeń nieruchomościami rolnymi, in: Kwestia agrarna. Zagadnienia prawne i ekonomiczne, P. Litwiniuk (eds), Warsaw 2016, p. 109. 3 Marciniuk K., Pojęcie własności rolnej w kontekście regulacji dotyczących kształtowania ustroju rolnego i przemian struktury agrarnej / Kwestia agrarna. Zagadnienia prawne i ekonomiczne P. Litwiniuk (eds), Warsaw 2016, p. 122. 4 Official EN Journal of the European Union C 326/47. 5 See: art. 345 of the Treaty, more: Korzycka M. Analiza prawna przepisów ustawy o wstrzymaniu sprzedaży nieruchomości Zasobu Własności Rolnej Skarbu Państwa oraz o zmianie niektórych ustaw zwana dalej ustawą (druk senacki nr 124). Kwiecień 2016 [The legal analysis of Act on Suspending the Sale of Real Estate of KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 64
However, national regulations must not discriminate citizens and entities from other Member States. In recent decades, European integration was based on the liberal principle. This can be seen, for example, in the previous case law of the Court of Justice of the European Union, which rather unfavorably referred to restrictions on trade in agricultural real estate. There have been no judgments on these issues for several years, during which much has changed. Member countries began to realize, i. a., the scale of concentration of agricultural land by large international agricultural corporations, international speculation in agricultural land or the general decline in the area of arable land. This viewpoint, non-liberal, advocating strong protection of the land is now reflected in the European Parliament resolution of 27 April 2017 on the state of play for farmland in the EU1. Although it is an act of only political, and not legal significance, it sheds new light on the issue of trade in agricultural real estate in the European Union and advances a strong argument for introducing such. There is no doubt that the issue of acceptability of restrictions on agricultural real estate in the European Union remains open.
7. Conclusions
The above analysis provides a brief outline of the regulation of agricultural property trade in Poland as of today. The civil law institutions that serve this trade in the broadest sense seem to be stable and quite typical. However, agricultural law regulations that relate to agricultural real estate trading are very dynamic. The doctrine of agricultural law constantly suggests many hints on which institutions and mechanisms need improvement, such as the regulation of agricultural leases. Regardless of the currently valid solutions, their shape will evolve in the opposite direction from the current – the liberal one. This is a broader tendency, including the countries of Central Europe – members of the European Union.
References
Czechowski P. Ewolucja stanu prawnego w zakresie obrotu nieruchomościami rolnymi / Realizacja ustawy o kształtowaniu ustroju rolnego. Materiały pokonferencyjne, Warszawa 2004, pp. 117-128. Czechowski P. Ewolucja stanu prawnego w zakresie obrotu nieruchomościami rolnymi [Evolution of agricultural real estate trade regulations] / Realizacja ustawy kształtowaniu ustroju rolnego. Materiały pokonferencyjne. Warsaw, 2004 Czechowski P., Prutis S. Grunty rolne: problemy prawno-organizacyjne, Warsaw, 1985.
the Agricultural Property Resource of the State Treasury and on Amending Certain Acts regulations. April 2016], https://www.senat.gov.pl/gfx/senat/pl/senatekspertyzy/3439/plik/oe-248.pdf. 1 (2016/2141(INI)). Patryk Kalinowski 65
Korzycka M. Analiza prawna przepisów ustawy o wstrzymaniu sprzedaży nieru- chomości Zasobu Własności Rolnej Skarbu Państwa oraz o zmianie niektórych ustaw zwana dalej ustawą (druk senacki nr 124) Lichorowicz A. Dzierżawa gruntów rolnych w ustawodawstwie krajów zachodnio- europejskich (studium prawno-porównawcze),Cracow,1986. Lichorowicz A. Perspektywy nowej regulacji obrotu gruntami rolnymi (uwagi wprowadzające) / „Studia Iuridica Agraria”, 2010, vol. VIII, pp. 7-13. Marciniuk K. Pojęcie własności rolnej w kontekście regulacji dotyczących kształtowania ustroju rolnego i przemian struktury agrarnej / Kwestia agrarna. Zagadnienia prawne i ekonomiczne Litwiniuk P.(eds.), Warszawa 2016, pp. 111-126. Matys J. Nowa ustawa o kształtowaniu ustroju rolnego – uwagi do projektu Polskiego Stronnictwa Ludowego / „Studia Iuridica Agraria”, 2014, vol. XI, pp.121-136. Matys J. Ustawa o kształtowaniu ustroju rolnego – uwagi ogólne / „Studia Iuridica Agraria”, 2015, vol. XII, pp. 199-216. Prawo rolne P. Czechowski (eds.), Warszawa 2015. Stefańska K. Pojęcia „nieruchomość rolna” i „gospodarstwo rolne” w ujęciu kodeksu cywilnego i ich znaczenie dla legislacji prawnorolnej / „Studia Iuridica Agraria. 2009, vol. VII, pp. 93-103. Wiącek M. Konstytucyjne aspekty ograniczeń nieruchomościami rolnymi / Kwestia agrarna. Zagadnienia prawne i ekonomiczne Litwiniuk P. (eds.), Warszawa 2016, pp. 101-110.
Information about the author
Kalinowski Patryk (Warsaw, Poland) – Associate of The research Centre for Eastern European and Central Asian Law, Faculty of Law and Administration of the University of Warsaw; Expert of the Gabriel Shershenievich Institute of Eastern Law (ul. Krakowskie Przedmieście 26/28, 00-927 Warszawa, Collegium Iuridicum I, pok. 311; e-mail: [email protected]). KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
CONFERENCE REVIEWS
Nikita Makolkin Master student, Chairman of the Student Legal Science Society of the Law Faculty of Kazan (Volga region) Federal University
Nigina Nafikova Bachelor student of the Law Faculty of Kazan (Volga region) Federal University
REVIEW ON THE XIII INTERNATIONAL SCIENCE CONFERENCE “DERZHAVIN READINGS”
DOI: 10.24031/2541-8823-2017-2-4-66-70
Abstract: The article tells about the XIII International science conference “Derzhavin readings”, which opened its session at the Law Faculty of Kazan (Volga region) Federal University on September 21, 2017. The conference is organized by Kazan Federal University and Russian Academy of Law with support of the Government of the Republic of Tatarstan. This event takes place in Kazan since 2015 but since this year, the conference has become international and has widened its geography by inviting Russian and foreign law researchers and philologists, students, scholars, and also government and local representatives. In addition, today we can confidently say that arranging the readings in fall and involving people inspired by science is becoming a good tradition of the Law Faculty of Kazan University. The text shows the main events in the frame of the conference and results of academic discussions and debates. Moreover, the article says about scholars and representatives of government, court and law enforcement systems, who took part in the conference by moderating round tables. Key words: conference, review, “Derzhavin readings”, round table, law, philology, Kazan Federal University, Russian Academy of Law Nikita Makolkin, Nigina Nafikova 67
The XIII International science conference “Derzhavin readings” took place at the Law Faculty of Kazan Federal University on September 21-23. This event was set in motion by the plenary session in the Emperor’s hall of the Main Building of the Kazan University. The session was opened by the Rector of the All-Russian State University of Justice, Olga Alexandrova. In her opening address she extended her gratitude to conference guests and people thanks to whom this project not only exists but from year to year is widening its scientific field. Olga Alexandrova was followed by the welcome address of the President of Tatarstan Republic. Rustam Minnikhanov inspired the audience by his confidence that the conference will facilitate the comprehension of the works of the outstanding statesman (Gavriil Derzhavin), the creation of the incentives for the further fruitful scientific work and the law-applying practice. The opening speeches were followed by: the head of the Tatarstan Ministry of Justice administration Viktor Demidov; the Rector of the Kazan (Volga region) Federal University, the Chairman of the Tatarstan Universities Rectors’ Council Ilshat Gafurov; Metropolitain of Kazan and Tatarstan Feofan; Mufti of Tatarstan Republic Kamil Khazrat Samigullin; Doctor in Philology and Pedagogics, Professor of Samara Socio-Pedagogic University, Chairman of the Union of Literary Scholars in Volga area Oleg Buranok; Counselor of Federal Education and Head of the Science Supervisory Service Yekaterina Nosachevskaya; member of the Federation Council of the Federal Assembly of the Russian Federation Oleg Morozov; member of the Federation Council committee on the regulations and parliamentary practice organisation, representative of state legislative body of Novgorod region Sergey Fabrichnyy. During the plenary session the chairman of the VII State Duma Committee on state development and legislation Pavel Krasheninnikov made a presentation called “Silver age of law” and presented his book with the same title. The book tells about the scientific works and outstanding scholars – historians, law philosophers and lawyers who worked at the turn of the XIX and XX centuries – Vladimir Solovyev, Evgeny Trubetskoy, Sergey Muromtsev, Gabriel Shershenevich, Lev Petrazhitskiy and others. A separate chapter of the book highlights the views of the legal sociologists Pitirim Sorokin, Nikolay Timashev, Georgy Gurvich who worked within and beyond the Russian borders. According to the author’s opinion the views and ideas of these scholars correlate with Silver age, which traditionally includes poetry and culture of the late XIX – early XX centuries. They influenced the establishment and development of legal schools and were devoted to the search of law axioms. Pavel Krasheninnikov noted that “silver age” in terms of understanding law is ambiguous: processes that took place before and after 1917 are different. Therefore, there is number “17” on the cover of the book. The book also reveals little-known biography details of public figures of that time. For example, the well-known lawyer Gabriel Shershenevich was a father of the poet who worked together with Yesenin1. By this example the author
1 (Translator’s note) Sergei Yesenin is a famous Russian poet, the most distinct representative of countryside poetry and one of the most popular poets in Russia. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 68 emphasizes tight links between legal community and literary & cultural communities. This book has become the continuation of the book series where the author analyzes different periods of the law history – from its birth to our times. The plenary session was closed by Olga Alexandrova giving the valedictory address to the speakers, representatives of the scientific communities, moderators of the round tables and the organizers of the event. After the inspiring opening ceremony the I Interregional intellectual game “Russkaya Pravda – the oldest Russian source of law” was held in the 3rd Physics auditorium. The connoisseurs of the Russian legal history traditions, who were represented by seven student teams from the leading Russian universities competed against each other. Such event was held within the Derzhavin readings for the first time, and it has reached another level as can be seen from its title. The participants faced several trials: solving crosswords and puzzles on the knowledge of Russkaya Pravda, playing quizzes on Modern History and taking part in the reconstruction based on the articles of the Extensive redaction of the Document. At the end of the first day of the conference an excursion around the Kazan University was organized. During the excursion, the guests and the participants of the “Derzhavin readings” learned about the history of the old university, its museums and legal schools. On September 22, thirteen round tables welcomed the participants for discussion. I round table “Russian legal system after the Great October revolution: problems of branches of law formation and development”. The moderators (Mikhail Averin, Vasily Babenko, Raviya Stepanenko) reviewed thirteen reports and five presentations. II round table “Theoretical and historical legal fundamentals of the Russian statehood”. The moderators (Alexander Pogodin, Oleg Rybakov) presented eighteen reports and nineteen presentations. III round table “Modern state and civil society: constitutional and international legal aspects”. The moderators (Adel Abdullin, Vadim Vinogradov) and the participants discussed seventeen reports and forty-five presentations. IV round table “Civil and business law of Russia: the main development vectors”. The moderators (Kamil Arslanov, Marina Ilyushina, Roza Sitdikova) reviewed thirty- one report and fifty-eight presentations. V round table “Enforcement proceedings in conditions of today’s civil life: effec- tiveness, challenges and development paths”. To moderator’s judgement (Ruslan Sitdikov, Alexey Ovchinnikov) eight reports and thirteen presentations were presented. Also Gulnara Kasymova, the Head of department of the territorial organization and control in the local self-government of the Tatarstan Republic Ministry of Justice and Marat Zagidullin, Associate Professor in the environmental, labor law and civil procedure of KFU, both took an active part in the work of the round table. At the round table the urging enforcement proceedings problems in the Russian Federation were discussed. The possible legislation amendments were highlighted. There were intense debates between the participants on the reformation of the bailiffs institution. Different development Nikita Makolkin, Nigina Nafikova 69 options were offered: from establishing the new institution of private bailiffs to including mediation to enforcement proceedings. VI round table “Modern problems of administrative law and procedure”. The Moderators (Viktoriya Umanskaya, Yulia Malevanova, Evgeny Sultanov) reviewed eight reports and twenty presentations. VII round table “Implementation of the State policy in monitoring of law-application and anti-corruption education”. The moderators (Mars Badrutdinov, Elena Kozlova, Alexander Epikhin, Elena Ibragimova) presented sixteen reports and twenty-five presentations. VIII round table “Medical technologies: doctor and patient in the system of legal relations”. The moderators (Antonina Chuprova, Rashat Fayzullin, Konstantin Egorov) studied seven reports and ten presentations. IX round table “Criminal law: problems of criminalization and decriminalization”. The moderators (Boris Yacelenko, Maria Talan) presented eighteen reports and thirty- four presentations. X round table “Criminal law, procedural and criminalistic problems of the criminal cases review in the sphere of economics on the stages of preliminary investigation and at court”. The moderators (Yuriy Bespalov, Igor Antonov) discussed nineteen reports and twenty-one presentation. XI round table “G.I. Derzhavin through the eyes of XIX century: modern problems of contemporary research of author’s poetry. Literary dialogues”. The moderators (Oleg Buranok, Alexey Pashkurov) debated on the themes of sixteen reports and seven presentations. XII round table “Gavriil Derzhavin and his époque in the context of social and cultural paradigm. Derzhavin and national cultures dialectics”. The moderators (Alfia Galimullina, Rezeda Mukhametshina) presented fourteen reports and eight presentations. After the panel discussion, orientation seminar and a lunch break there started the XIII round table of young scholars (scientific-methodic seminar) “Interdisciplinary and Interbranch approach as modern vectors of law science development”. It is a satellite event of the young scholars school of Kutafin Moscow State law university held as a videoconference. The experts were Vladimir Sinyukov, Lilia Bakulina, Natalia Kozlova, Boris Zheleznov, Maria Zakharova. The moderator of the round table was Maxim Voronin. Thematic clusters of discussion grabbed the interest of twenty-one researchers. It is noteworthy that there were government and local self-government representatives, judges and practicing lawyers who actively took part in the work of the round tables. In the evening of the same day there was an official closing ceremony of the conference at which each round table was represented by one moderator who summed up the results. Each one of them noticed that at the round tables students as well as the professors presented their point of view on this or that thesis of the speaker. At times discussions transformed into real scientific debates. Undoubtedly, that shows KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 70 a great interest of each participant in reforming and advancing modern legislation operation. The highlight of the ceremony was awarding the teams based on the results of the intellectual game “Russkaya pravda”. The winner team was the team that represented the Kazan legal school, and the members were students of Kazan Federal University: Nigina Nafikova, Alina Mukhamadeeva, Daria Kuznetsova, Aygul Mingazutdinova and Dzhalina Vishnyakova. To conclude the review we can undoubtedly say that the result of such events is mutual enrichment in practical, educational and scientific experience for all participants.
Information about the authors
Nikita Makolkin (Kazan, Russia) – Master student, Chairman of the Student Legal Science Society of the Law Faculty of Kazan (Volga region) Federal University (420008 Kazan, Kremlyovskaya St., 18; e-mail: [email protected]);
Nigina Nafikova (Kazan, Russia) – Bachelor student of the Law Faculty of Kazan (Volga region) Federal University (420008 Kazan, Kremlyovskaya St., 18; e-mail: [email protected]). KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4
Aydar Gubaidullin Candidate of Legal Sciences, Associate Professor of the Department of Theory and History of State and Law of the Law Faculty, Kazan (Volga region) Federal University
Maxim Voronin Candidate of Legal Sciences, Associate Professor of the Department of Theory and History of State and Law of the Law Faculty, Kazan (Volga region) Federal University
Elena Bazilevskikh Postgraduate student of the Law Faculty, Kazan (Volga Region) Federal University
LEGAL SCIENCE OF RUSSIA AND CHINA COMPARE DEVELOPMENT VECTORS. REVIEW OF THE INTERNATIONAL SYMPOSIUM ON CHINA AND RUSSIA: “THE DEVELOPMENT OF RULE-OF-LAW IN THE PROCESS OF MODERNIZATION”
DOI: 10.24031/2541-8823-2017-2-4-71-76
Abstract: In the end of October delegation of the Law Faculty of Kazan (Volga region) Federal University made a working visit to Nanjing Normal University, one of partner universities in China. The working trip is also included a visit to Fudan University Law School in Shanghai and a meeting with scholars of the China University of Political Science and Law in Beijing. A symposium held in Nanjing was devoted to the development of the rule-of-law, an issue important for legal science of both China and Russia. The idea of the symposium was to meet scholars from different universities and discuss actual KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 72 problems of Law. The Russian delegation consisted of eight scholars from Kazan Federal University and also Professor Syrykh, Head of the Department of Theory and History of Law and Judicial Power of the Russian State University (Moscow). The conference gave rise to timely important reports and informal discussions and laid the foundation for future exchange of ideas and cooperation and friendship of Russia and China. Key words: Russian law, Chinese law, rule-of-law, modernization, symposium, review.
On October 19-23, 2017 a delegation of the Law Faculty of Kazan (Volga region) Federal University made a working visit to China. This trip included the following official meetings: 1) panel session at Fudan University Law School (Shanghai); 2) working session of partner universities: Nanjing Pedagogical University (NPU, Nanjing, China) and Kazan (Volga region) Federal University (KFU, Kazan, Russia) on issues of collaboration and future relations; 3) the International Symposium on China and Russia: “The development of rule-of-law in the process of modernization”, joint conference of Law faculties of NPU and KFU (Nanjing); 4) briefing with scholars of the China University of Political Science and Law in Beijing. During the visit to Fudan University Law School members of the Russian delegation got acquainted with some aspects of work of this famous university. At the first official meeting of representatives of the Law School and Russian delegation there were expressed ideas on making detailed proposals on future collaboration and joint academic activities: exchange programs for students and scholars, scientific conferences, publication of articles in leading world periodicals, etc. Scholars and university activists from Kazan presented periodical bulletins published at the Law Faculty of KFU: the journal “Herald of civil procedure” (6 issues per year, in Russian) and the journal “Kazan University Law Review” (4 issues per year, in English). They also invited colleagues from China to contribute to Kazan publications. Former Professor of Fudan University Law School, Yang Xinyu pointed out at new directions in the development of legal studies in China, he emphasized the influence of modern approaches in managing the education process on the basis of students’ choice of courses. It is important to note that China has clearly embarked on a course of economic development, which is manifested in differentiated approach to legal education. Lecturers of Fudan University Law School indicate the tendency towards the internationalization of science and education in the field of Law, continuing their professional development abroad. The Russian delegation was able to see the level of commitment of Chinese colleagues in performing their educational activities. A working session of law schools representatives from Nanjing Pedagogical University and Kazan Federal University on issues of collaboration and future relations took place in Nanjing before the conference. The meeting was attended by the Dean of Nikita Makolkin, Nigina Nafikova 73 the Law Faculty, Vice-Dean, teachers and several students majored in studying Russian Law of NPU, as well as Vice-Dean on research activities, Research advisor of the faculty and lecturers of the Law Faculty of KFU. At the meeting the participants confirmed a continuation of the three year collabation, discussed perspectives of future mutual development and friendship of faculties. The issue on academic mobility was raised again. Dean of the Law Faculty of NPU, Professor Cai Daotong expressed a particular interest in developing short-term student exchange programs. The idea was supported by the KFU representatives who also offered to scholars from China to participate in a number of international conferences at the Law Faculty of KFU. Vice-Dean on research activities, Professor Damir Valeev talked about the notable annual event, “The Russian Students’ Moot Court” that can also serve a good platform in the area of academic exchange. Professor Damir Valeev, being an Editor-in-Chief of the journals “Herald of civil procedure” and “Kazan University Law Review”, presented issues of these journals at the meeting and warmly invited colleagues from China to publish their articles. The key purpose of the working trip to China was participation of Russian scholars in the International Symposium on China and Russia: “The development of rule-of-law in the process of modernization” in Nanjing. Among the organizers of the Symposium were the Research Institute of Law Modernization of Nanjing Pedagogical University; the Law Faculty of Kazan (Volga region) Federal University; Collaborative Innovation Center for the Development of Regional Legal Norms, Jiangsu University; the Research Institute of Legal Development of Jiangsu Province, Nanjing Pedagogical University; Research Center for Modernization of the Legal System of the Nanjing Pedagogical University; the Center for Legal Studies of the Jiangsu Fund Law Firm. It should be also mentioned that among the scholars attending the symposium there was Professor Vladimir Syrykh from Moscow and Professor Jeffrey Thomas from the USA. At the conference twenty-six presentations on a wide range of topics were given. These topics can be grouped into the following blocks. First of all, problems related to the theory of state and law and comparative law were discussed. In relation to this, we should note the papers “The validity of law as a prerequisite for its supremacy” by Professor Vladimir Syrykh,,“Indicators of modernization of the legal systems of China and Russia in the context of the development the rule of law” by Maxim Voronin, and “Legal culture and its role in the development of the rule of law” by Aydar Gubaidullin. In particular, Professor Syrykh discussed the system of criteria for the valid law in the context of works by K. Marx (“Economic manuscripts”, 1857-1859). These include the requirements of equality, free will, interdependence and equivalence. Following this idea, the Russian scholar added also such legal principles as the priority of rights before the law, the rule of law, and the universal validity of law. All this has allowed to come to a logical conclusion that the priority of rights over the law is possible only in the presence of all the legal conditions. KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 74
Kazan Legal School was represented by the papers “The realization of ideal of rule of law in exemption from criminal responsibility and punishment in China and Russia” by Professor Ildar Tarkhanov, and “The relation of federal law and federal subject law in Russian real estate” by Professor Zavdat Safin; judicial practice of Volga region was represented by Rafail Shakiryanov, judge of the Supreme Court of the Republic of Tatarstan, who gave a paper “The Legal Practice as a Source of Legislation of Chinese and Russian Civil Procedure”. Professor Ildar Tarkhanov talked about the concept of the rule of law and its aspects in the field of criminal law, presented the data of judicial statistics in Russia and discussed some special traits of Russian Criminal Law. Young scholars of Kazan Legal School presented papers as well. An interesting talk was given by Maxim Voronin, Associate Professor of Kazan Federal University, who discussed the indicators of modernization of the legal systems of China and Russia in the context of the development of the ideas of the rule of law. He identified three main objectives of his study and achieved them by answering the questions on how to understand the indicators of legal systems’ modernization in general, what are the meaningful indicators of modernization of the legal systems of China and Russia, and what are the structural indicators of modernization of legal systems. Among the meaningful indicators of modernization of the legal systems of China and Russia, Maxim Voronin singled out the following: 1) quality content of the law itself, including legislation; 2) certainty of the law, the existence of valuation categories; 3) a balance between the government and the law, expressed among others by the system of separation of powers; 4) improvement of the legal process. The structural indicators of modernization are: 1) improving the branch structure of law, as a network of links between its norms; 2) improving the structure of legislation, as a network of links between articles of laws and other legal acts; 3) systematization of law: codification, consolidation, incorporation, accounting. Aydar Gubaidullin touched upon the problem of legal culture in the context of the rule of law. His presentation emphasized the pluralism in understanding the term “legal culture”, as well as the levels and types of this phenomenon. The scholar proposed considering legal culture through the prism of the value approach, which allows to reveal its influence on the development of the rule of law at the level of an individual and of the legal system of society. At the same time, Aydar Gubaidullin emphasized the role of legal culture in the process of upbringing, that involves personal development on the basis of socio-cultural, spiritual and moral values, including the ideas of the rule of law. It is also necessary to highlight the presentations by American and Chinese scholars. In particular, the symposium was attended by Jeffrey E. Thomas (the USA), “Comparing Rule of Law in China and Russia: World Justice Project Data and Cultural Factor”, He Qinhua, “Current Development of Rule of Law in Russia: 2006-2016”, Yan Yimei, “Russia’s Social Transition and Formation of Private Law System”, Wang Jianguo, “Logical way of interpreting the essential features of the rule of law with Chinese characteristics”, Yuan Dundun, “Limitations in the constructive approach and proper enforcement of legislation in Russia”. Nikita Makolkin, Nigina Nafikova 75
Among the papers on Russia, we should point out a presentations by Guiyu Wang, “The Constitutional Basis of Russia’s Federal system reform”, as well as by He Qinhua and Wang Haijun. Chinese scholars noted the success of Russian society in the process of evolution of a law-governed state and the development of the rule of law, as well as identified some problems that will have to be solved in the future. Yan Yimei’s paper also focused on the question of transition. The reform of civil legislation is associated with cardinal changes that have occurred in Russia, the transition from a planned economy to a market economy. Even now the current Civil Code of the Russian Federation is constantly being supplemented, reflecting the changes in social relations. The idea of the rule of law in a single country always acquires a certain specificity. This issue was the subject of the presentation by Wang Jianguo. It was noted that the rule of law under socialism with Chinese characteristics is related to the Chinese Communist Party, the people’s property, and the practice of constructing a system of Assembly of People’s Representatives. Jeffrey E. Thomas (together with Paul Callister), presented an analysis of concepts of the rule of law in Russia and in China in a comparative perspective, giving statistical information. The data of the World Justice Project were used, and various factors influencing the studied processes were assessed. Secondly, a number of papers focused on the general history of the development of law and “political and legal thought”. Thus, such studies were conducted by Gong Pi Xiang, “Community: young Vladimir Lenin on the social mechanism for the development of law in Russia”, by Zhang Junjie, “The historical turn on the idea and practice of rule of law in Russia”, and by Wang Zhihua, “The fate of Soviet constitutions in historiography”. The paper by Gong Pi Xiang contains interesting conclusions about the role of the community system in Russia. Analyzing the views of young V.I. Ulyanov-Lenin, the Chinese scholar comes to the conclusion about a peculiar way of development of law and society in Russia. The issue of specifics of the Russian legal evolution was also discussed in the paper by Zhang Junjie. He examined the concept of the rule of law and pointed out at the specifics of its implementation in Russian reality. At the same time, the Chinese researcher singled out the connection between the legal consciousness, the sense of legal responsibility and the rule of law, as well as noted the relationship between the rule of law and socialism. Thirdly, some of the papers were on topical problems of legal regulation, studied by various legal sciences. They touched upon issues related to the current state of this problem and its historical development. The Russian delegation also participated in the briefing which was held in Beijing by professors Huang Daoxiu and Wang Zhihua, representatives of Legal science in Russian Law Research Center of China University of Political Science and Law. It discussed the issues of keeping and developing academic connections between universities of Russia KAZAN UNIVERSITY LAW REVIEW . Volume 2, Winter 2017, Number 4 76 and China, necessity of studying the Russian language in China and Chinese in Russia, as well as studying cultures of these great nations by students. In the course of discussion, the need for increasing research in comparative legal studies, in particular research of interbranch nature, was identified. The special role of such research was identified by Huang Daoxiu, Professor of China University of Political Science and Law, a chevalier of the Order of Friendship of the Russian Federation. These kind of studies help not only to understand the law of a country as a superstructure formation, but also to identify tendencies of cultural development and to improve the dialogue between cultures. The Law Faculty of Kazan Federal University expresses great appreciation for good organization of the trip to the management of partner university of the KFU – the Nanjing Pedagogical University, and other organizers of the conference. The Law Faculty of Kazan Federal University plans continuing development of collaboration with colleagues from China and fortifying the field of academic mobility and collaborative research.
Information about the authors
Aydar Gubaidullin (Kazan, Russia) – Candidate of Legal Sciences, Associate Professor of the Department of Theory and History of State and Law of the Law Faculty, Kazan (Volga region) Federal University (420008 Kazan, Kremlyovskaya St., 18; e-mail: [email protected]); Maxim Voronin (Kazan, Russia) – Candidate of Legal Sciences, Associate Professor of the Department of Theory and History of State and Law of the Law Faculty, Kazan (Volga region) Federal University (420008 Kazan, Kremlyovskaya St., 18; e-mail: [email protected]); Elena Bazilevskikh (Kazan, Russia) – Postgraduate student of the Law Faculty, Kazan (Volga Region) Federal University (420008 Kazan, Kremlyovskaya St., 18; e-mail: [email protected]). Master program «JUDICIAL LAWYER IN CIVIL, ARBITRATION AND ADMINISTRATIVE PROCEDURE» (in Russian language)
The Head of the Master’s program – Doctor of Legal Sciences, professor Damir Valeev.
Foreign lecturers and practicing lawyers: Wing Winky So, Oxford University (China, Great Britain) Pablo Bravo Hurtado, Maastricht University (Chile, the Netherlands) Jaroslaw Turlukovski, Warsaw University (Poland) Vincent Teahan, practicing lawyer in the sphere of Tax law and civil procedure (USA)
Disciplines of the program: Compulsory courses: International Civil Procedure Philosophy of law Arbitration proceedings History of political and legal doctrines Notarial proceedings Legal technics and technology Elective courses: History and methodology of judicial Protection of rights in the Constitutional science Court of the Russian Federation Academic communication and the European Court of Human Rights Comparative legal studies Civil process in the CIS countries Methodology of teaching Litigation on corporate disputes the jurisprudence in higher school Conflict counseling Actual problems of civil, arbitration Psychology of conflict and administrative procedure Culture of conduct in Conflict Theory and practice of execution Protection of rights in administrative cases of judicial and non-judicial acts The trial of intellectual property rights Mediation in court proceedings Procedural specifics of certain Practice: categories of civil cases Educational practice Bankruptcy in arbitration proceedings Pre-Diploma practice
Teaching method: Full-time/ distant; Fee-paid/ free-paying (selection on competitive basis) Career perspectives: Courts, Federal bailiff service, advocacy, legal companies, transnational corporations, universities
More information about the application rules for 2017-2018 academic year on the website of KFU: http://admissions.kpfu.ru/vyssee-obrazovanie/priem-2017 Address of admission committee: rooms 114, 115, 35, Kremlyovskaya St., Kazan, 420008. Phone number: +7 (843) 292-73-40, e-mail: [email protected]; official site: http://kpfu.ru/priem Master program «INTERNATIONAL BUSINESS LAW» (in English language)
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Disciplines of the program: Compulsory courses Diplomatic and consular protection (ECTS equivalent points): in international business (4) Philosophy of law (2) International legal protection of intellectual History of political and legal doctrines (2) property (2) Legal technics and technology (2) Elective courses (credit points): History and methodology of judicial science (2) International migration law (4) Academic communication (3) International civil process (4) Comparative legal studies(4) International economic organizations (4) Methodology of teaching the International business and human rights jurisprudence in higher school (2) protection (4) Actual problems of international law in Law of international treaties (4) modern world (4) International trade contracts (4) International economic law and law Islamic trade law (4) of WTO (3) Preparation for the UN model and International financial and banking law (4) international Moot Court competitions (4) International labour law (4) International commercial arbitration (4) Practice (credit points): Jurisdictional immunity of the State Educational practice (9) and its property (4) Pre-Diploma practice (39)
Teaching method: Full-time/ distant; Fee-paid/ free-paying (selection on competitive basis) Career perspectives: Organizations, conducting external economic activity, representative branches of the Republic of Tatarstan abroad, governmental entities all over the world, courts and attorney offices, international organizations, Eurasian Customs Union, embassies, consular agencies.
More information about the application rules for 2017-2018 academic year on the website of KFU: http://admissions.kpfu.ru/vyssee-obrazovanie/priem-2017 Address of admission committee: rooms 114, 115, 35, Kremlyovskaya St., Kazan, 420008. Phone number: +7 (843) 292-73-40, e-mail: [email protected]; official site: http://kpfu.ru/priem KAZAN (VOLGA REGION) FEDERAL UNIVERSITY PUBLISHING HOUSE “STATUT” YURLIT LTD.
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