Vol 14, No 3 (2018)
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CIVIL AND FAMILY LAW
5-12 168
Abstract
In article the questions concerning features of the characteristic of the basis for refusal to designation in registration in connection with its falsehood or ability to mislead the consumer are considered. The characteristic of classification of the bases for refusal in registration is given to designation as the trademark. The attention to a ratio of the false trademarks and symbols capable to mislead consumers is paid. It is proved that the considered designations are interdependent and have no essential distinctions. The problems connected with application of the specified basis for refusal to the trademark in registration in jurisprudence are analyzed. It is recognized that falsehood of designation or its ability to mislead the consumer aren't considered by courts in a separation from the analysis of the rights of the third parties, that is don't treat category of the absolute.
13-21 742
Abstract
The current article deals with a performance of obligations arising from a smart contract. Author considers the possibility of legal definition of such a performance and application of a previously expressed consent in these circumstances. It is proved that the performance of obligations from a smart contract has its own legal characteristics that differ from what is described in the Civil Code of the Russian Federation as for performance of obligations, and is automated. Using the category «automated performance» the author refers to Russian bills and foreign acts on smart contracts. The author is to offer the following definition for practical use of smart contracts: «performance of obligations as well as using, modifying and ending of rights can be done automatically on the basis of electronic algorithm confirmed by parties by previously expressed consent with the provisions of a contract». The author also analyses the newest Russian and foreign practice as for performance of obligations from a smart contract, and courts positions if there is an omission in a smart contract.
22-26 274
Abstract
The article is devoted to debatable questions about the principle of good faith as a condition of the protection of rights and legal interests of the participants of invalid bargains in common provisions of the institution of invalidity of bargains. The author points out that there are a number of doctrinal and law enforcement problems related to the interpretation and application of the rules of good faith in the situation of invalidity of bargains, which are primarily related to the delineation of the provisions of Art. 166 and the definition of the content of Art. 167 of the Civil Code of the Russian Federation. The variants of resolving practical and theoretical questions discussed in the article were proposed by virtue the legal nature of invalid bargains. The author comes to conclusion about the absence the difference between the good faith behavior of the participants of void and voidable bargains from the position of their dynamics. The possibility of the existence of a consistent approach to the definition of good faith of the participants of void and voidable bargains is proved.
27-31 289
Abstract
The present article is devoted to current problems of the theory and practice of the family-law contracts. Special attention is paid to the expansion of the sphere of contractual regulation of the family-law relations in the Russian Federation, contractual freedom. Authors pay attention that the theory of contractual regulation of the family relations is especially necessary now, in the period of the continuing large-scale reform of the domestic legislation. Authors believe that the perspective of the family-law contracts has to be developed in a tandem with the results of civil researches. It will certainly increase methodological validity of the doctrine of family-law contracts. Authors conclude that specifics of the family relations and feature of their contractual regulation confirm objective need of more accurate legislative instructions. Their absence in some cases promotes maintaining redundancy of civil regulation of the family relations.
ПРЕДПРИНИМАТЕЛЬСКОЕ И НАЛОГОВОЕ ПРАВО
32-39 198
Abstract
The article examines the place, role and competence of tax authorities in ensuring the subjective rights and legitimate interests of taxpayers. The administrative procedure for resolving tax disputes arising between the taxpayer and the tax authority is analyzed. There is a lack of appropriate conditions for resolving the tax dispute on the basis of the principle of objectivity due to the combination of arbitration and accusatory functions of the higher tax authority that considers the complaint. It is concluded that it is impossible to implement the human rights function of tax authorities within the departmental format. The introduction of personal responsibility of officials for illegal actions, inaction, wrongly adopted non-normative acts is proposed as a guarantee instrument for protecting the rights and legitimate interests of the taxpayer.
40-50 181
Abstract
The theoretical construction of a public obligation as a phenomenon of a «kumatoid» in financial law is considered in the article, when the idea of a design and elements combined on its basis act as the organizing invariant, and the content of these elements as a changing material. The author states that the legal construction of a public obligation as a model for the existence of a monetary obligation is formed within the framework of the structure of the financial (budgetary) relationship that the structure is called upon to regulate, and the budgetary relationship that arises in accordance with the legal design of the financial relationship should correspond to it, and the rights and obligations of the parties to the legal relations should reflect the conditions formulated in the legal norms that fix the viability of the legal design of the public obligation. This approach allowed the researcher to consider the construction of a public commitment as a multifaceted theoretical meta-construction of fiscal (budgetary) law.
51-61 229
Abstract
This article analyzes the development of legal regulation concerning capital amnesty in RF in which it is possible to allocate on a provisional basis four stages connected with adoption of such acts as: Decree of the President of Russia from 27th of October, 1993 No. 1773 «About realization of tax amnesty in 1993», the Federal law from 30th of December, 2006 No. 269-FL «About the simplified procedure for income declaration by individual persons», the Federal law from 8th of June, 2015 No. 140-FL «About voluntary declaring of assets and accounts (deposit accounts) by individual persons in banks and about modification of separate legal acts of the Russian Federation» and the Federal law from 19th of February, 2018 No. 33-FL «About introduction of amendments to the Federal law “About voluntary declaring of assets and accounts (deposit accounts) by individual persons in banks and introduction of amendments to separate legal acts of the Russian Federation”». Proceeding from the content of legal standards and taking into account scientists' opinion was suggested the author's definition of amnesty under which it shall be understood: the order established by the law and limited on application time providing changes (departures) from the general rules for conducting tax control over assets which were received by the state residents, but were not properly reflected in declarations and were not beard with taxes, among other things because of their transfer from jurisdiction of our country. Besides, gaps in current legislation were revealed too (absence of the possibility concerning presentation of special declarations in any territorial tax authority that is convenient for the entrepreneur; terminable «tax-free liquidation»; fall within amnesty of exclusively open existing foreign accounts; availability of ambiguity in terminology, etc.), many of which were eliminated at the fourth stage of capital amnesty realization.
РАЗВИТИЕ ЮРИДИЧЕСКОЙ НАУКИ
62-77 549
Abstract
The article is devoted to the memory of the prominent scientist-jurist, doctor of law, Professor Victor Mikhailovich Gorshenev, whose professional activity in the period from 1964 to 1970 left a bright trace at the Novosibirsk faculty of Sverdlovsk law Institute, now - Novosibirsk law Institute (faculty) of Tomsk state University (NYUI(f) TSU). The article gives a brief description of the life and professional path, scientific, pedagogical and organizational activities of the veteran of the great Patriotic war, the order-bearer, who made a significant contribution to the development of legal education and science not only in the Siberian region, but also in the country as a whole. The retrospective analysis of scientific works of the scientist in the field of theory of state and law, administrative law. Special attention should be paid to his research on the forms and methods of participation of public organizations in the legal regulation of relations in various spheres of society; on the organizational and legal forms of activity of state bodies in the field of lawmaking and law enforcement; on the nature and purpose of the procedural form in law. The theoretical basis of the research was the scientific works of V. M. Gorshenev, his students, reviews of his works, monographs on the history of NUI(f) of the TSU and Yaroslavl state University. P. G. Demidov. The methodological basis was the historical, logical and system methods. On the basis of generalization of scientific and literary sources, the author concludes that the study of the scientific heritage of the past is necessary for understanding the historical development of Russian legal thought, is to stimulate further scientific research, promotes the expansion and deepening of scientific knowledge about the work of the prominent Russian legal scholars, who devoted his life to scientific study of the law and this has earned the gratitude of posterity.
ISSN 2542-0410 (Print)