PREFACE
ACKNOWLEDGMENTS
NOTE ON ABBREVIATIONS AND CITATIONS USED IN THIS BOOK
CHAPTER I
RUSSIAN LAW IN A COMPARATIVE PERSPECTIVE
A. Methods of Classification
B. The Civil and Common Law Traditions
C. Imperial Russian Law as a Civil Law System
D. "Socialist" Law?
E. Russia Now: The Civil Law Tradition with Some Special Russian Characteristics
CHAPTER II
SOURCES AND HIERARCHY OF LAWS
A. Domestic Sources of Law
1. The Constitution
2. Federal Constitutional Laws
3. Statutes
4. Presidential Decrees and Agency Regulations
a. Presidential Decrees and Directives
b. Agency Regulations
5. Judicial Decisions and Explanations as Sources of Law
a. Decisions of the European Court of Human Rights
b. Constitutional Court Decisions
c. Supreme Court Decisions
d. Supreme Arbitrazh Court Decisions
e. Explanations of the Law by the Supreme Court and Supreme Arbitrazh Court
6. Other Sources of Law
a. USSR Legislation
b. Legal Consciousness, Natural Law, Good Faith and General Principles of Law and Justice
c. Custom
d. Academic Commentary
B. International Law in the Russian Legal System
1. The Constitutional Provisions
2. Jurisdiction of International Tribunals
3. International Law in the Constitutional Court
4. International Law in the Ordinary Courts
C. The Effects of Federalism
1. Lawmaking Power of the Subjects of the Russian Federation
2. The Court System and Subjects of the Russian Federation
D. The Hierarchy of Sources of Law
E. Legal Research on Russian Law
1. Russian-Language Sources: Publication of Legislation and Court Judgments
2. English-Language Sources
CHAPTER III
THE JUDICIAL SYSTEM
A. The Overall Structure of the Judicial System
1. Specialized Courts: One Judicial System or Three?
2. Federal and Subject Courts: One Judicial System or Two?
a. What Courts Are "Federal" Courts?
b. What Is a Court "of a Subject" of the Russian Federation?
B. Establishing an Independent and Impartial Judiciary
1. Organizational Independence of the Judicial Department from Executive Influence
2. Tenure of Judges
3. Financial Independence of the Courts
4. Increased Adversary Nature of Proceedings
5. Intra-Branch Supervisory Influences on Judges
a. Supervisory Review of Judgments
b. Formal Discipline of Judges
c. Informal Supervision of Judges
d. Outside Pressure on Judges
C. The Three Court Systems of Russia in Greater Detail
1. The Constitutional Court
a. Why a Special Court for Constitutional Questions
b. Some Lessons from the History of the Constitutional Court
c. Structure and Judges
d. Jurisdiction of the Constitutional Court
e. Procedure in the Constitutional Court
f. The Legal Effect of Constitutional Court Decisions
2. The Courts of General Jurisdiction
a. Justice of the Peace Courts
b. District Courts
c. Subject-Level Courts
d. The Supreme Court of the Russian Federation
3. The Arbitrazh Courts
a. Trial Arbitrazh Courts
b. Arbitrazh Courts of Appeals
c. Federal Arbitrazh Courts of the Circuits
d. The Supreme Arbitrazh Court
D. Summary: Diagram of the Russian Court System(s)
E. Subject-Matter Jurisdictional Divisions between the Court Systems
1. The Jurisdictional Division Between the Constitutional Court and the Courts of General Jurisdiction
a. Scope of the Constitutional Court's Jurisdiction: Art. 125
b. What Is a Constitutional Issue?
c. Constitutional Judicial Review by Ordinary Courts
(1) Judicial Review of Non-Normative Acts by Ordinary Courts
(2) "By-Product" Judicial Review by Ordinary Courts in the Process of Adjudicating Concrete Cases
(3) Referral of Constitutional Issues to the Constitutional Court
(4) Direct Judicial Review of Legislation below the Level of a Statute by Ordinary Courts
d. The Reaction of the Constitutional Court to Judicial Review by the Ordinary Courts
e. Constitutional Court Review of Supreme Court Decisions
2. The Subject-Matter Jurisdictional Division between the Constitutional Court and Arbitrazh Courts
3. The Subject-Matter Jurisdictional Division between Courts of General Jurisdiction and Arbitrazh Courts
CHAPTER IV
THE LEGAL PROFESSION
A. Legal Education
B. Procurators
1. The Procuracy in History
2. The Soviet Procuracy and the Need for Reform
3. The Present-Day Procuracy
a. Organization of the Office
b. Selection and Tenure of Procurators
c. Scope of Power of the Procuracy
d. Major Activities of the Procuracy
e. The Role of the Procurator in Civil Proceedings
f. The Role of the Procuracy in Criminal Proceedings
C. Investigators
D. Lawyers
1. Some Recent History of the Advokatura
2. The Advokatura under the 2002 Law
a. Admission to the Advokatura
b. Rights and Obligations of Advocates
c. Forms of Practice for Advocates
d. Ethics and Attorney-Client Privilege
3. Attorneys' Fees
4. Pro Bono Legal Services Requirements
a. Civil Cases
b. Criminal Cases
E. Notaries
F. Judges
1. Tenure in Office
2. Methods of Judicial Selection
a. Supreme Courts and Constitutional Court
b. Other Federal Judges
3. Screening of Candidates
a. Approval by Judicial Qualifications Commissions
b. Minimum Qualifications of Candidates
c. Degree of Politicization of Judicial Selection
4. Judicial Immunity
5. Political Activities of Judges
6. Judicial Salaries
CHAPTER V
CONSTITUTIONAL LAW
A. History and Overall Structure
1. The Emergence of Independent Russia
2. Adoption of the 1993 Constitution
3. The Concept of a Rule-of-Law State
4. The Concept of the Social State and Social Rights
5. The Concept of a Democratic State: The Communist Party Case and Restrictions on Radical Political Parties
B. Powers of the Legislative and Executive Branches
1. The Executive Branch
2. The Legislative Branch
a. The Federal Assembly
(1) The State Duma
(2) The Federation Council
b. The President's Power to Dissolve the State Duma
c. The Legislative Process
d. Presidential Veto
e. Parliament and the Administration of Laws
f. Legislative Immunity
C. International Relations
1. The Treaty-Making Procedure
a. The Role of the President
b. The Role of the Federal Assembly
c. Participation of the Subjects of the Federation in Treaty Making
d. Judicial Review of Treaties for Constitutionality
e. Independent "Treaty-Making Power" of the Subjects
D. The War Power and States of Emergency
E. Federalism
1. The Federation Treaty and the Constitution
2. The Nature of the Federation: Secession and Asymmetrical Federalism
3. Delineating Federal and Subject Powers
4. Federal Requirements regarding Governmental Structure of Subjects
a. Constitutional Requirements
b. Federal Statutory Regulation and Consequences
5. Local Self-Government
CHAPTER VI
INDIVIDUAL RIGHTS
A. Sources of Law on Individual Rights
B. Mechanisms for Enforcement of Individual Rights
C. General Issues in Russian Law of Individual Rights
1. Holders of Rights
2. Limitations on Rights
D. Specific Individual Rights
1. The Right to Run for Office and the Right to Vote
2. Freedom of Movement
3. The Right to Judicial Protection and Equal Treatment
4. Freedom of the Press
5. Property Rights
6. Freedom of Contract
7. The Right to Strike
8. Freedom of Religion and Conscience
E. Social Rights and the Issue of Aspirational Rights
CHAPTER VII
CIVIL AND COMMERCIAL LAW
A. The Civil Code
1. The Civil Code and Civil Legislation of the Subjects
2. The Civil Code and Other Rules of Civil Law
3. The System of the Civil Code
4. The Civil Code and Commercial Law
B. Persons
1. Natural Persons
2. Legal Entities
3. Legal Capacity of Legal Entities
C. Business Organizations
1. Partnerships and Companies
a. Partnerships
b. Companies
(1) Limited Liability Companies
(2) Joint-Stock Companies
(3) Cooperatives
(4) State "Unitary" Enterprises
D. The State as a Subject of Civil Law
E. Property
1. The Concept of Property
2. Protection of Property and Property Rights
3. Movable and Immovable Property
4. Registration of Title to Immovable Property
5. Errors in the Land Records
F. Land Ownership
1. Public Land Ownership
2. Private Land Ownership
a. Home Ownership
b. Business Premises
c. Agricultural Land
3. Forms of Ownership
4. Operative Administration and Economic Management
5. The Concept of Perpetual Use
6. Inheritable Possession for Life
7. Servitudes
8. Consensual Limitations on Ownership
9. Acquisition and Transfer of Ownership
G. Transactions
H. Contracts
1. Contracts as Part of the Law of Obligations
2. Freedom of Contract
3. Formation of the Contract
a. Offer
b. Acceptance
c. Essential Terms
d. Formal Requirements for Contracts
e. Preliminary Contracts
4. Interpretation of Contracts
5. Void and Avoidable Contracts
6. Remedies for Breach of Contracts
a. Compensation for Losses
b. Forfeitures and Penalties
c. Specific Performance
7. Amendment and Termination of Contracts
8. Fundamental Change of Circumstances
9. Termination of Contracts for Impossibility of Performance
I. Legal Issues of Privatization
1. Introduction
2. The Legal Basis for Privatization
3. Privatization Authorities
4. Privatization Procedures
J. General Principles of Liability for Causing Harm
1. Basis of Liability for Causing Harm
2. Compensation for Harm
3. Compensation for Moral Harm
4. Strict Liability
5. Unjust Enrichment
K. Intellectual Property
CHAPTER VIII
CIVIL AND ARBITRAZH PROCEDURE
A. Civil Procedure
1. Initiation of the Lawsuit: The Pleading Stage
a. Parties
b. Jurisdiction and Venue
c. Forms of Action
d. Form of the Pleadings
2. The Pre-Trial Stage
a. Preparation of the Case
b. Preliminary Relief
3. The Trial Stage
a. General Characteristics
b. Elements of Proof at Trial
c. Burden of Proof and Evidence Rules
d. Presumed Facts and Res Judicata
4. Judgments
a. Content and Form
b. Effect of Judgments
5. Appellate Review of Decisions
a. Forms of Appellate Review and Procedures
b. Scope of Review on Cassation and Supervision
c. Procedural Fairness in Supervisory Review
d. Supervisory Review and Finality Interests
e. Other Relief from Judgment
(1) Reopening Judgments Because of New Circumstances
(2) Reopening Default Judgments
6. Truncated Adjudication
a. Summary Proceedings
b. Uncontested Proceedings
7. Execution of Judgments
B. Arbitrazh Procedure
1. The Changing Business of Arbitrazh Courts
2. Decision Makers and Trial and Pre-Trial Procedure
3. Proof of Claims and Production of Evidence
4. Preliminary Hearings
5. Trial
6. Appellate Review
a. Appeals
b. Review by Cassation
c. Supervisory Review
7. Execution of Judgments
C. Resolving Commercial Disputes by Private Arbitration
1. Policy of the Law on Private Arbitration
2. Enforcement and Review of Arbitral Awards
CHAPTER IX
PRIVATE INTERNATIONAL LAW
A. International Conflict of Laws
1. Natural Persons
2. Legal Entities
3. Property
4. Contracts
a. Applicable Substantive Law
b. Law Applicable to Matters of Form
5. Suits for Violation of Non-Contractual Duties -- Torts
6. Renvoi
B. Application of Foreign Law
C. International Jurisdiction of Russian Courts
D. Arbitration of International Commercial Disputes
1. The Arbitration Agreement
2. Applicable Law
3. Procedural Rules
E. Recognition and Enforcement of Foreign Court Judgments and Arbitration Awards
1. Foreign Court Judgments
2. Foreign Arbitration Awards
3. Enforcement of Awards by Russian Arbitral Tribunals
4. Challenging Awards by Russian Arbitral Tribunals
CHAPTER X
FOREIGN INVESTMENT LAW
A. Foreign Investments and Investors
B. Business Forms for Foreign Investment
C. A National Regime for Foreign Investors?
D. Guarantees against Expropriation
E. Foreign Investment Incentives
F. Dispute Settlement
G. Special Economic Zones
H. Production-Sharing Agreements
I. Effectiveness of the Foreign Investment Regime
CHAPTER XI
CRIMINAL PROCEDURE
A. Russian Criminal Procedure in Comparative Context
B. Pre-Trial Procedure
1. Initiation of Criminal Cases
2. Preliminary Investigation
a. The Criminal Investigator
b. Role of the Procurator
c. The Two Routes to Arrest and Initiation of a Criminal Case
d. Constitutional Limits on Arrest and Detention
3. Pre-Trial Restraint Measures
a. Basic Procedure
b. The Duration of Pre-Trial Detention
4. The Preliminary Investigation Casefile and Its Uses
5. Preliminary Investigation Procedures
a. Interrogating Witnesses and Victims
b. Interrogating the Accused or Suspect
c. Expert and Forensic Specialist Analysis and Evidence
d. Examination of the Crime Scene
e. Line-Ups
f. Confrontation of Witnesses
g. Searches and Seizures
h. Civilian Attesting Witnesses
i. Operative-Investigators (Operativniki)
6. Protecting the Rights of the Suspect and Accused during the Preliminary Investigation
a. The Problem of Coerced Confessions
b. Confessions and the Right to Counsel
c. The Code on Confessions and Right to Counsel
d. Other Defense Advocacy Opportunities during the Pre-Trial Investigation
e. Time Limits on Preliminary Investigations
7. End of the Preliminary Investigation
a. Dismissal
b. Formulation and Approval of the Indictment against the Defendant
c. Possible Return by the Court for Supplemental Investigation
8. Court's Preparation of the Case for Trial and Preliminary Hearing
C. The Trial
1. Subject Matter Jurisdiction of Trial Courts
2. Trial Procedure
a. Setting of the Trial and Participants
b. The Opening of the Trial
c. Presentation of the Evidence
d. Expert and Specialist Evidence
e. Closing Arguments
f. Final Word of the Accused
3. Judgment and Sentence of the Court
a. Judgments and Their Justification
b. Proof Standard for Conviction
c. Disposition of the Victim's Civil Suit
d. Sentence
e. Acquittal and Rehabilitation Rights
D. Special Trial Procedures: "Guilty Pleas" and Jury Trials
1. Two Types of Guilty Plea Deals
a. Agreeing with the Charges: "Guilty Pleas" with a Standard Discount
b. "Guilty Pleas" with an Individual Bargain
2. Jury Trials
a. Scope of the Right to a Jury Trial
b. Independence of the Russian Jury
c. Trial Procedure in Jury Cases
(1) Jury Selection
(2) Jury Instructions and the Process of Reaching a Verdict
(3) Evidentiary Limitations
E. Review of Trial Court Judgments
1. Appeal
2. Cassation
3. Supervisory Review
4. New Appeal Provisions Effective January of 2013
5. Reopening a Case Based on New or Newly Discovered Circumstances
CHAPTER XII
CRIMINAL LAW
A. Basic Principles and the Structure of the Code
B. The General Part
1. Categories of Crimes
2. What Constitutes a Crime
3. Administrative Offenses
4. Level of Culpability for Criminal Responsibility
C. Specific Crimes
1. Organized Criminal Activities
2. Abuses of Public and Private Power
3. "Hooliganism" and Its Variants
a. Hooliganism as a Separate Crime
b. Crimes Prompted by "Hooliganistic Motives"
4. Other Miscellaneous Unique Crimes
D. Defenses and Other Factors Mitigating Criminal Responsibility
1. Diminished Capacity
2. Intoxication
3. Duress and Necessity
4. Repentance and Reconciliation
5. "Necessary Defense" and Detention of an Offender
6. Taking a Justified Risk
7. Following Orders
E. Decriminalizations
F. Punishments for Crime
1. Types of Sentences Possible
2. Sentences under the New Code: Stricter or More Lenient?
3. Judicial Practice in Sentencing
4. The 2003 Amendments to the Code
5. The Death Penalty
CHAPTER XIII
ADMINISTRATIVE LAW
A. Administrative Review
B. Validity of Administrative Rules
1. Delegation of Rulemaking Authority to Administrative Agencies
2. Relationship between Administrative Regulations and Statute Law
C. Judicial Review -- Procedural Issues
1. Standing to Seek Invalidation of Administrative Regulations
2. The Constitutional Right to Judicial Review of Administrative Decisions
D. Judicial Review -- Substance
1. The Scope of Judicial Review of Administrative Decisions
2. The Range of Administrative Disputes in the Courts
3. Success Rates of Citizens in Administrative Disputes in the Courts
CHAPTER XIV
TAX LAW
A. The Value-Added Tax
B. The Profits Tax
C. Compulsory Employer Insurance Contributions
D. The Tax on Incomes of Natural Persons
APPENDIX
CONSTITUTION OF THE RUSSIAN FEDERATION
INDEX
