DOI: 10.25136/2409-7136.2020.10.32076

Abstract: The subject of this research is the correlation between standards and technical regulation in construction sector, as well as the examination of practical consequences of various legal regimes – and mandatory and voluntary for business activity of construction companies in the Russian Federation. Standards and technical regulation of industry are viewed as legal norms in the context of progress made on harmonization of Russian law, legislation of the Customs Union, and regulations of the World Trade Organization. In this regard, standards are considered as voluntary set of norms, adherence to which is declared by the contractors and service providers, and controlled by independent organizations that conduct verification of adherence. The norms of technical regulations are referred to as mandatory norms. The conclusion is formulated on the essential voluntary nature of standards and mandatory nature of technical regulations. The author clarifies the concept of the basic goal of standardization – achievement of high quality, and the key goal of technical regulation – achievement of safety in the process and in usage of the results. Practical limitations of application of the formulated conclusions in the activity of construction companies are outlined. The author also concludes on deformation of the general framework concept of voluntary and mandatory norms of technical regulation in construction sector towards increasing the number of mandatory requirements. Such deformation is a result of passing a separate law – Technical Regulations on the Safety of Buildings and Structures, which is special in regards to the Law on Technical Regulation, as well as to multilevel and thus often contradictory regulation of technical norms in construction sector.

DOI: 10.25136/2644-5514.2018.3.27459

Abstract: The object of this research is the category of “foreign construction organization as a subject of entrepreneurial activity in the Russian Federation”, which the author understands in a broader sense that a foreign legal entity that possesses special legal capacity in the territory of the Russian Federation. Foreign construction organization is viewed from the perspective of entrepreneurial law as a foreign actor in the Russian legal framework. The subject of this research is the acting in this regard legal regulators and doctrinal formulations. The article analyzed the developed by the science of private international law category of personal law of the legal entity, legal capacity of the foreign entity, and approaches to their interrelation. The author determines the two legally significant attributes of the foreign construction organization – subordination to the foreign personal law, realization of core business in accordance with the requirements of the Russian legislation); and based on that formulates the conceptual definition of the indicated subject. In addition, the author highlights the two conditions that allow viewing de facto of the subject of entrepreneurship as foreign construction organization (presence of foreign control over the operational activity and reliance on the foreign technical regulation), as well as stipulates their interrelation with the legal conditions of implementation of activities in the territory of the Russian Federation.

DOI: 10.7256/2409-7136.2017.4.22467

Abstract: The research subject is the legal grounds for challenging of transactions of a debtor within the bankruptcy proceeding, implemented during the so-called “suspicion period”, preceding the recognition of a debtor as a bankrupt. The most important scientific achievement of recent years in this sphere is the extended understanding of a transaction, which interprets a transaction also as a discharge of an obligation (active discussion of this problem was initiated by S.V. Sarbash). The research subject includes the problems of law-enforcement, connected with annulment of complex agreements as a consequence of selective annulment of particular transactions, which are the parts of such agreements, with no account for the balance, provided by the agreements, based on reciprocal performance of obligations. The author applies historical method and the method of system analysis of laws, regulating bankruptcy procedures in their interconnection with the provisions of the Civil Code of the Russian Federation on transactions. Besides, the author applies historical-legal and formal-legal methods. According to S.V. Sarbash’s theory, implemented in civil law, challenged transactions include acts of cession of goods and payments. Consequently, bankruptcy procedures effectively contest parts of agreement with no account for their interrelation, and all the outgoing payments of the debtor, made during the pre-bankruptcy period, are threatened with restitution. The author reveals a significant contradiction of law-enforcement practice: the provisions of the article 180 of the Civil Code of the Russian Federation, ordering to preserve the part of a transaction, are used rarely; this article is not used for the division of an invalid transaction into the elements. In turn, the provisions of the law on bankruptcy about the possibility to separate particular transactions (parts) from the agreement (transaction) and the subsequent annulment within bankruptcy procedure, are widely used. This situation contains the contradiction in the sphere of regulation of transactions within civil law. The author draws attention to the fact that a building contract is one of the spheres of contractual law, in which annulment of agreements can lead to unpredictable consequences. 

DOI: 10.7256/2306-9899.2017.1.22342

Abstract: The focus of this research is the legal capacity of organizations that is defined in accordance with the various proper laws in the context of requirements to the membership in self-regulatory organizations (SRO). The amendments introduced into the Article 40 of the Civil Code of the Russian Federation within the framework of reform of the general part of the Civil Code, have established that the membership in SRO (admission to SRO) is henceforth a part of the capacity of legal entity. At the same time, the legal capacity of legal entities of foreign descent can be determined on the basis of their proper law in accordance with the Article 1202 of the Civil Code of the Russian Federation. The article resolves the question in which way it correlates with each other. The scientific novelty of this work consists in proposing of the solution to the problem of interconnection of the Articles 49 and 1202 of the Civil Code of the Russian Federation. Limitations associated with the membership in SRO along with the licensed limitations, are derived from the content of legal capacity of the legal entity, as well as viewed as the elements of public regulation of the entrepreneurial relations. In this case, they go beyond the reach of the foreign proper law and must submit to the administrative public regulation of their activity in the territory of Russian Federation.

DOI: 10.7256/2454-0595.2016.7.19578

Abstract: The article considers the issues of foreign construction companies’ membership in self-regulated organizations in the field of construction. The author analyzes the provisions of the current Russian legislation regulating relations in the field of a foreign organization’s admission to construction activity. The research subject includes the differences and similarities between qualification requirements, procedures and the status of self-regulated organizations of foreign construction organizations and residing organizations. The author pays attention to the issues of safety ensuring in construction via administrative public legal methods. The study is carried out from the position of administrative and entrepreneurial law, taking into account that the problem of self-regulation in safety ensuring is based on the combination of regulation by public-legal and civilized means. The author concludes that the foreign construction organizations’ legal status regulation in the Russian Federation is carried out primarily by substatutory acts and contains numerous gaps; still the self-regulated organization membership, from the point of law, doesn’t require the establishment of a branch or representational office in Russia. The current legal provisions, perhaps, indirectly restrict the right of foreign construction organizations’ permit to construction activities (general contract). 

DOI: 10.7256/2454-0706.2016.3.18285

Abstract: This article explores the establishment and development of Russian legislation in the area of regulation of execution and fulfillment of contracts for general construction. In examination of this issue, the article covers the entire period of Russian history of law to present time. The main accent is made on the Soviet and post-Soviet periods from the point of origin of the notion of construction contract in the Soviet legal system. The work presents the analysis of the peculiarities of the legal aspect of the concept of general construction, as well as the legislative foundations and bylaws during the Soviet and post-Soviet periods. The article presents the specific aspects of regulation of construction contracts in the pre-revolutionary and Soviet legislations, as well as gaps and collisions in the current legislation. The author formulates an original position on the issue of development and passing of the special legislative bill on general construction, and makes conclusions and recommendations of further legislative development pertaining to request for construction and request of quotes for construction work.  

DOI: 10.7256/2454-0633.2016.3.20083

Abstract: This article examines the questions of lawfulness of the activity of the foreign companies in the Russian Federation without accreditation of the branches and representative establishments. The subject of this research is the succession of practical steps necessary for realization of legitimization of the systemic commercial activity of foreign organizations in the Russian Federation depending on the various circumstances and vectors of business. The author examines multiple aspects of the notions “branch” and “representative establishment” based on their sectoral and legal affiliation.  The subject area of the research includes the changes in legislation pertaining to the foreign investments in the Russian Federation since 2014. The notions of branch and representative establishment vary on their interpretation in civil law, investment law, and tax law. Despite the presence of a branch or representative office, all of the deals conducted by the foreign commercial organization remain valid, and the organizations themselves preserve the right to sue and be a defendant in court. The low level of legal technique that allows the multiplicity of interpretations is characteristic to the normative acts regulating the examined topic.

DOI: 10.7256/2409-7802.2016.3.20250

Abstract: The article is devoted to analyzing legal problems arising in the process of launching international construction companies on the Russian construction market. The author examines the most common method of running business in the Russian Federation through creating a subsidiary business entity, advantages and disadvantages of such method compared to establishing affiliate or representational offices of an international construction company. In his research Nikitin focuses on the most recent amendments to the legislation in the sphere of foreign investments, actual judicial practice as well as the government executive authorities' views on the matter. The methodology of the research involves methods that are typical for entrepreneurial law and implies combination of the civil approach and analysis of an object in cooperation with public order institutions. The scientific novelty of the research is caused by the fact that the author raise a problem about business reputation of subsidiaries of international construction companies. The solution offered by the author implies the legal mechanism of plain partnership within which a consortium of the parent international construction organisation and their branch organisation is established to combine material and non-material resources. 

DOI: 10.7256/2454-0706.2016.3.42929

Abstract: This article explores the establishment and development of Russian legislation in the area of regulation of execution and fulfillment of contracts for general construction. In examination of this issue, the article covers the entire period of Russian history of law to present time. The main accent is made on the Soviet and post-Soviet periods from the point of origin of the notion of construction contract in the Soviet legal system. The work presents the analysis of the peculiarities of the legal aspect of the concept of general construction, as well as the legislative foundations and bylaws during the Soviet and post-Soviet periods. The article presents the specific aspects of regulation of construction contracts in the pre-revolutionary and Soviet legislations, as well as gaps and collisions in the current legislation. The author formulates an original position on the issue of development and passing of the special legislative bill on general construction, and makes conclusions and recommendations of further legislative development pertaining to request for construction and request of quotes for construction work.