The Concept of Beneficial Ownership in Russian Judicial Practice (Private Law Aspects)

2016 ◽  
Vol 4 (9) ◽  
pp. 0-0
Author(s):  
Владимир Канашевский ◽  
Vladimir Kanashevskiy
Keyword(s):  
Case Law ◽  
Tax Law ◽  
Legal Regime ◽  
Applicable Law ◽  
Judicial Practice ◽  
Beneficial Ownership ◽  
The Russian Federation ◽  
Russian Law ◽  
National Tax ◽  
Joint Property

The author studies the definitions and features of the concept of “beneficial ownership” and its application by Russian courts. Although the Russian civil law does not recognize the concept of beneficial ownership which comes from the English law of equity, this concept is beginning to be recognized by Russian judicial practice, in particular, in the recent resolutions of the Russian Supreme Court of the Russian Federation. The cases in question relate to the division of the joint property acquired by spouses during the marriage (the Russian courts consider the property (assets) of the offshore company or trust controlled by spouse (acting as a beneficiary) as a joint spouses’ property); recognition of the rights of beneficiary for challenging the decisions of the companies controlled by such beneficiary; levy of execution upon the property of the offshore companies and trusts controlled by beneficiary for the beneficiary’s debts. It is obvious that decisions of Russian courts are in the line with trends of development of foreign case law. One of the manifestations of the beneficial ownership concept in Russian law is the institute of “a person having factual right for the income”, fixed by Russian tax law. Considering the deoffshorization policy in Russia, it is obvious that this institute will continue to be reflected in the national tax law. The author attends to, inter alia, the questions of applicable law to beneficial ownership, including applicable law to the relations with offshore companies and trusts. In particular, the legal regime of foreign trust’s or offshore company’s property shall be determined by the law of the relevant foreign jurisdiction but not by the rules of Russian law.

Concept of Beneficiary Owner (Proprietor) in Tax Law

10.12737/6585 ◽  
2014 ◽  
Vol 2 (12) ◽  
pp. 0-0
Author(s):  
Инна Хаванова ◽  
Inna Khavanova
Keyword(s):  
Law Enforcement ◽  
Case Law ◽  
Tax Planning ◽  
Tax Law ◽  
Beneficial Ownership ◽  
History Of ◽  
The Russian Federation ◽  
Concept Application ◽  
International Tax ◽  
To Receive

The concept of beneficial ownership draws the increasing attention because it´s widely used by the international holding structures for tax planning. The author analyzes the concept of beneficial ownership in the tax law taking into account new Russian legislative initiatives and law-enforcement practice. The article touches upon the history of this concept, its content in the international tax law, peculiarities of the ratio of national and international tax law norms, questions of concept application and usage of the term «the person having the actual right to receive the income» in conventions for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. The author concludes that inclusion of the term «the actual addressee (beneficial owner) income» in the Tax code of the Russian Federation for the purposes of the application of the Double tax agreements by itself will not provide for the effective application of the concept which is a result of expert development, carried out within the Organization for Economic Co-operation and Development (OECD) and also case-law of the leading states. The author concludes that there´s a necessity for the scientific researches taking into account the specificity of the Russian legal system, defining the directions of tax and legal researches.

scholarly journals Recognition of Debt Obligations as Joint Obligations of Spouses: A Case Law Analysis

2020 ◽  
Vol 15 (12) ◽  
pp. 82-89
Author(s):  
E. N. Mazovka
Keyword(s):  
Russian Federation ◽  
Case Law ◽  
Judicial Practice ◽  
The Family ◽  
The Russian Federation ◽  
Family Code ◽  
Joint Property ◽  
Debt Obligation

The paper is devoted to the issues related to the recognition of a debt obligation issued in the name of one of the spouses during their marriage as a joint obligation of the spouses. The author’s study is based on the materials of the generalized case law showing the heterogeneity of the application of Para 2 of Art. 45 of the Family Code of the Russian Federation. The author critically analyzes the approaches developed by judicial practice when deciding the issue of recognition of the debt as joint. In particular, the author investigates acquisition at the expense of credit (borrowed) money of the joint property of the spouses. The author describes disadvantages of the extension by courts of the presumption of spouses’ joint property to debt obligations. It is substantiated that courts must take into account the evidence of obtaining the consent of the spouse and evidence of spending credit (borrowed) money for the needs of the family. The conclusion is made about the need to form legal mechanisms that promote uniform application of Para 2 of Article 45 of the Family Code of the Russian Federation.

Features of Judicial Practice in the Russia as the Basis of Precedent

2020 ◽  
pp. 98-106
Author(s):  
V. V. Levin
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Armed Forces ◽  
Case Law ◽  
Constitutional Court ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Law Making

The article is devoted to the analysis of judicial practice as the basis of law-making activity in the Russian Federation, on the basis of which it is possible to create a precedent. Case law in Russia is Advisory in nature and is not mandatory for law enforcement practice. Courts use the signs of case law in their decisions in the reasoned part. Signs of case law is a ruling of the constitutional court of the Russian Federation and regulations of the armed forces of the Russian Federation.

scholarly journals A VINCULAÇÃO DO PRINCÍPIO PROCESSUAL DA NÃO-SURPRESA E A APLICAÇÃO DA LEI DE INTRODUÇÃO ÀS NORMAS DO DIREITO BRASILEIRO – LINDB

Percurso ◽  
2019 ◽  
Vol 3 (30) ◽  
pp. 42
Author(s):  
Frabriccio Petreli TAROSSO
Keyword(s):  
Decision Making ◽  
General Rule ◽  
Case Law ◽  
Public Law ◽  
Tax Law ◽  
The Novel ◽  
Legal Certainty ◽  
Federal Law ◽  
National Tax ◽  
Definition Of

RESUMOO presente artigo pretende aproximar alguns conceitos da novel Lei de Introdução às Normas do Direito Brasileiro – LINDB ao princípio da não-surpresa aplicável ao processo tributário, seja ele Administrativo ou Judicial. A Lei Federal n. 13.655 de 25/04/2018 houve por incluir no Decreto-Lei nº 4.657, de 4 de setembro de 1942 - Lei de Introdução às Normas do Direito Brasileiro - disposições sobre segurança jurídica e eficiência na criação e na aplicação do direito público. Deste modo, muitas dúvidas têm surgido acerca da convivência entre a regra geral de direito tributário, inserta no Art. 144 do Código Tributário Nacional, de que a lei vigente à época dos fatos geradores deve ser levada em conta ao deslinde de uma questão e que a jurisprudência majoritária à época dos mesmos fatos – se modificada – não deve servir de parâmetro para a tomada das decisões. PALAVRAS-CHAVE: Lei de Introdução às Normas do Direito Brasileiro – LINDB; Princípio Processual da não-surpresa.ABSTRACTThe present article intends to approximate some concepts of the novel Law of Introduction to the Norms of Brazilian Law - LINDB to the principle of non-surprise applicable to the tax process, be it Administrative or Judicial. Federal Law n. 13,655 dated 04/25/2018, there was a need to include in Decree-Law No. 4.657, dated September 4, 1942 - Law on Introduction to the Rules of Brazilian Law - provisions on legal certainty and efficiency in the creation and application of public law. In this way, many doubts have arisen about the coexistence between the general rule of tax law, inserted in Article 144 of the National Tax Code, that the law in force at the time of the generating facts must be taken into account in the definition of an issue and that the majority case-law at the time of the same facts - if modified - should not serve as a parameter for decision-making. The study will have as a method the legal and bibliographical research on the subject.KEYWORDS: Law of Introduction to the Norms of Brazilian Law – LINDB; Procedural Principle of Non-Surpris

scholarly journals Submission of prosecutorial decision in a civil procedure

2020 ◽  
pp. 114-123
Author(s):  
Svetlana Gennad'evna Byval'tseva ◽  
Artem Aleksandrovich Kovalev
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Scientific Literature ◽  
Case Law ◽  
The Public ◽  
Judicial Practice ◽  
The Subject ◽  
The Russian Federation ◽  
Civil Cases ◽  
Court Hearing

The object of this research is the public relations arising when the prosecutor is involved in court hearing of civil cases by intervening into a case for delivering an opinion in the appellate, cassation and supervisory bodies, as well as problematic aspects of the application of his powers to deliver an opinion in the aforementioned bodies. The subject of this research is the materials of prosecutorial law enforcement and judicial practice, norms of civil procedural legislation of the Russian Federation that regulation these public relations, as well as positions formulated on the matter. Despite the fact, that the scientific literature paid attention to the separate aspects of submission of prosecutorial decision, the questions of submission of prosecutorial decision in the retrial of civil cases did not receive due coverage. Such situation led to a contradictory approach towards the question on possibility of delivering an opinion by the prosecutor in retrial of civil cases in the theory and case law. Therefore, based on the conducted research, the author makes recommendation with regards to exercising prosecutorial powers in submission of decision in retrial of civil cases by the courts, as well as the changes in current legislation that would bring certainty into these legal relations and contribute to elimination of the emerged contradictions.

scholarly journals THE FORECLOSURE ON THE ONLY CITIZEN’S HOUSING IN BANKRUPTCY CASE

2020 ◽  
Vol 17 (1) ◽  
pp. 69-81
Author(s):  
Veronika Kolbina ◽  
Elena Nevzgodina
Keyword(s):  
Russian Federation ◽  
Social Situation ◽  
Judicial Control ◽  
Judicial Practice ◽  
Current State ◽  
Scientific Analysis ◽  
Analysis And Synthesis ◽  
The Russian Federation ◽  
Russian Law ◽  
Constitutional Right

Introduction. The article is devoted to the study of possibility and conditions of the foreclosure on the only housing in the citizen bankruptcy case and the need to improve Russian legislation that regulates these relations. Purpose. The purpose of the article is to analyze the current state of the problem of the foreclosure on the only housing in the citizen bankruptcy case, to identify deficiencies of the legislation that regulates these relations, taking into account the need to achieve a balance of citizens right to be provided with housing and his creditors rights, conscientiously interested in the most complete satisfaction of their requirements in bankruptcy case and suggest the improvement of these legislation. Methodology. To achieve the purpose both general and private scientific research methods were used, in particular, methods of scientific analysis and synthesis, induction and deduction, functional and systemic methods, formal legal and comparative legal methods, methods of interpretation of law and legal forecasting. Results. Higher courts of the Russian Federation recognized the possibility of derogating from the maxim on the inadmissibility of the foreclosure on the only housing established by the Civil Procedure Code of the Russian Federation. This requires introducing into Russian law a mechanism of the foreclosure on the only housing, which allows protecting the rights of creditors and, at the same time, preserving sufficient guarantees of the citizen’s right to housing. Conclusion. Despite the relevance of the foreclosure on the only housing, it should be recognized that the corresponding task is not easy to solve. However, in judicial practice (especially in bankruptcy cases) there has been a tendency to deviate from the idea of comprehensive executive immunity in relation to a single dwelling, which will inevitably be reflected in the current procedural and bankruptcy laws. At the same time, any regulation of these relations should presuppose judicial control in the sphere of issues relating to foreclosure on the only residential premises. In any case, the improvement of the legislation should not put a citizen in a difficult social situation and lead to a violation of his constitutional right to housing.

scholarly journals High-Rise Construction in Densely Dwelled Cities: Requirements for Premises Insolation and Consequences of their Violation in Russian Law and Jurisprudence

2018 ◽  
Vol 33 ◽  
pp. 03069
Author(s):  
Boris Gongalo ◽  
Lubov Gudovicheva ◽  
Anna Gubareva ◽  
Larisa Dobrynina
Keyword(s):  
Residential Buildings ◽  
Local Administration ◽  
Judicial Interpretation ◽  
Social Significance ◽  
Construction Company ◽  
High Rise ◽  
Territorial Planning ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Russian Law

The issues of constructing high-rise, primarily residential, buildings have a great social significance. Not every plot of land, acquired in the Russian Federation is suitable for high-rise construction. Therefore, every construction company that plans to erect a multi-apartment building, a high-rise office building, or a skyscraper must take into account not only technical norms but as well sanitary legislation regulations that set obligatory requirements about insolation of apartments. The article includes a short study of several norms in the Russian legislation regarding insolation of dwellings; analises the problems of judicial interpretation of the statutory limitations. In this aspect it researches the debatable questions arising in practice of state arbitration courts dealing with the lawsuits on allocation of land-plots by the local administration. The analysis of the judicial practice is followed by description of the difficulties facing the developers of land-plots, concerning the project and territorial planning documentation.

The modern judicial practice in the context of Budget policy and its impact on Constitution Court positions in tax law payments

2017 ◽  
Author(s):  
Христина Пешкова ◽  
Christina Peshkova
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Tax Law ◽  
Constitutional Court ◽  
Legal Practice ◽  
Judicial Practice ◽  
Budget Policy ◽  
The Russian Federation ◽  
Tax Payments ◽  
The Impact

The article analyzes trends in the impact of the financial and budget policy of the Russian Federation on the establishment of tax and non-tax payments, the content of the legal positions of the constitutional Court of the Russian Federation in terms of determining their nature. The author cites arguments both in favor and as a criticism of existing legal practice and tax-legal regulation.

scholarly journals Estoppel and failure to exercise a right

2020 ◽  
pp. 1-10
Author(s):  
Iuliia Sorokina
Keyword(s):  
Russian Federation ◽  
Case Law ◽  
Civil Code ◽  
The Other ◽  
Legal Doctrine ◽  
Contradictory Behavior ◽  
The Subject ◽  
The Russian Federation ◽  
Russian Law ◽  
The Right

The subject of this research is legal relations emerging as a result of unlawful, inconsistent and contradictory behavior of one of the parties. As one of the most common version of such behavior cited the temporary failure of one of the sides in the situation to exercise the right, while the other side reasonably relies on permanent failure to exercise the right. The article examines the examples of unlawful irregular and contradictory behavior that can be observed in the general and special parts of the Civil Code of the Russian Federation, as well as Russian case law and legal doctrine. Analysis is conducted on the position of foreign research on estoppel as a principle of law. A conclusion is made that in the Russian law estoppel represents prohibition of unlawful, inconsistent and contradictory behavior, being a private case of prohibition for unscrupulous behavior. Such approach allows applying the rule of “estoppel” to a situation that is not directly designated in legislation, which can be observed in case law. It is substantiated that the rule of “estoppel” is also contained in the Part 3 of the Article 1044 of the Civil Code of the Russian Federation. Correspondingly, this rule is also applied in a case where one of the parties acted without proper right, while the other party reasonably expected its presence.

Land law. Third edition

2018 ◽  
Author(s):  
Елена Болтанова ◽  
Elena Boltanova
Keyword(s):  
Legal Regulation ◽  
Educational Institutions ◽  
General Description ◽  
Land Law ◽  
Law Schools ◽  
Legal Regime ◽  
Judicial Practice ◽  
Foreign Countries ◽  
Land Relations ◽  
The Russian Federation

The textbook identifies the features of legal regulation of land relations, discusses the General provisions of land law, the legal regime of certain categories of land, provides a General description of the land legislation of foreign countries, analyzes the current land legislation of the Russian Federation and judicial practice. For students of higher educational institutions, students of undergraduate, specialty, master's, graduate and faculty of law schools and faculties, practicing lawyers, as well as all those interested in land law.

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