Press review for June 16-30, 2020

The rejection of flat rate

RBC is thinking about the reasons and consequences of abandoning the flat income tax scale and increasing the rate for the rich. Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, believes the reason is in the budget deficit, which is now acutely felt. At the same time, according to the expert, opponents of the progressive tax scale are afraid of mass tax evasion. In addition to “grey salaries”, this can be done by splitting up the business or dividing the property. And in the end, this will affect the entire tax system.

When asked how innovation will affect crypto traders, lawyer Filippov answered: “Cryptocurrency circulation is not legalized on the territory of the Russian Federation. There are no international agreements on their working principles and mechanisms for tracking and controlling transactions. Therefore, at the moment, the use of digital money may be one of their ways to escape from the supervision of our fiscal authorities. ” According to the lawyer, this problem should be solved by the law governing the circulation of cryptocurrencies.

Driving in a drunken rage

The media are actively discussing the story of a fatal accident with the participation of actor Mikhail Efremov.

Auto Mail.ru portal reports that the actor was diagnosed with chronic alcoholism and wonders what now.

Konstantin Gurevich, attorney from MCBA “Bureau of Lawyers “De jure”, in an interview with the portal said: “There are no restrictions on conducting forensic psychiatric examinations of persons accused of committing unintentional crimes in the Code of Criminal Procedure of the Russian Federation. The mere fact of establishing a diagnosis cannot speak of sanity or insanity of a person. Insanity regarding a particular socially dangerous act precludes the possibility of sentencing. The conclusion on sanity or insanity is given by a forensic medical expert-a psychiatrist.” When asked who will be responsible for issuing the certificate to a sick person, the “De Jure” representative emphasized that “if the driver at the time of passing the medical commission did not show signs of diseases that prevent driving, then there is nothing to talk about.”

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Profile Magazine analyzes the world experience of bringing to responsibility for driving “tipsy”. As it turns out, the punishment for a fatal accident in Russia is one of the mildest in the world, the publication concludes. “In France, if a traffic accident committed by a driver while intoxicated had serious consequences, the fine can reach 150 thousand euros,” says Nikita Filippov, head of MCBA “Bureau of Lawyers “De jure”. “This is in addition to a prison term of 10 years.” In Finland, the lawyer says, the criminal law in principle does not provide for fines for people who have committed an accident while intoxicated. Only a real or conditional prison term of between six months and five years is implied. In addition, the driver is deprived of his license for up to five years, and he automatically loses all insurance: for the car and medical.

“In order to prevent such crimes, the principle of a fine is used, depending on the offender’s earnings, – Filippov notes. – In addition, the size of the fine depends on the number of ppm. How much you drank, you will pay so much. And according to statistics of Finland every year there are fewer drunk drivers registered in the country.”

In the UK, he says, besides enormous fines, there is a punishment of up to 14 years in prison. Insurance companies refuse to indemnify in the event of an accident with a drunk driver. In such cases, the culprit compensates the harm from his own pocket and is deprived of his driving license for at least two years.

“In Sweden, the amount of criminal punishment is not as large as in the countries listed – from six months to one and a half years and payment of damage, respectively, – lawyer Filippov continues. – But the State is carrying out strong social pressure on the culprit, such as equipping the car with an alcohol-based lock for three years and a special sticker on the car for three years, indicating that the drunk driver is driving and there is danger for others from the car.”

In Belarus, according to him, there is a fine of $700 to $1000, a prison term of up to seven years, and the car is subject to seizure in the state’s revenue. “And if two or more people are injured in a traffic accident, the sentence is from 4 to 10 years in prison, – says the Head of “De jure”. – From which we can conclude that in Russia there is still a fairly tolerant attitude towards drunk drivers. It’s definitely time to change and apply such measures as in Finland and Sweden, and in case of relapse – to deprive people of their driving license for life.”

New Big Brother: why is the Unified Register of Citizens needed?

Clerk.ru publishes an author’s article by Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, about the law “On the Unified Federal Information Register Containing Information on the Population of the Russian Federation” that the President has just signed. The register will contain detailed information about each person – last name, first name, patronymic, date of birth and death, marital status, identifiers (passport number, SNILS, INN, OMS policy), information on registration and much more. Also, the register will contain a link to a profile in State Services.

“Opponents of the adoption of the law say that as a result, the state will receive a tool for better control over information about citizens at the expense of their safety,”- Filippov writes. At the same time, according to him, the law does not provide for the collection of new data on citizens, but only brings all this information into one database.

“The Federal Register, like any other instrument, can serve both positive purposes and cause harm, depending on whose hands it is in. But this does not mean at all that society does not need this tool, it is only necessary to establish clear rules on how to use it, so as not to violate the interests of society. It seems that this law fulfills this function to a large extent. And how it will be in practice, we will soon find out,” – the lawyer summarizes.

Adapting to new conditions

A number of publications publish articles on how a business begins to recover after mitigating measures taken to combat coronavirus.

“The company’s lawyer” magazine publishes an article by Tamerlan Zelikov, lawyer of MCBA “Bureau of Lawyers “De jure”, and Daria Romanova, chief editor of the publication, “When should a company reimburse an employee for expenses related to a remote business”. “The employer must provide the employee with equipment, tools, documentation and other means that he needs for work. If the company doesn’t do this, it does not have the right to demand from the employee the performance of official duties and punish him for not completing the work,” – the authors note. If the company has provided the employee with fixed assets for work, it does not always have to compensate for additional expenses. It will be necessary to reimburse expenses, for example, if the manager gave an order that initially involves the employee’s expenses. In this case, the employee must confirm the expenses with documents, for example, a receipt for payment. If the documents are not presented, then they do not need to be reimbursed.

Read more – https://e.law.ru/?btx=11164083

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Inguru portal informs about the explanation of the Supreme Court, according to which the borrower will be able to take a credit vacation twice. Once – under the basic law on mortgage holidays, and the second – under a new law that came into force in 2020 and allows you to postpone the payment of loans for six months due to a reduction in income by 30%.

Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, explained this innovation with an example. “On October 25, 2019, the Borrower entered into a mortgage agreement for the purchase of an apartment in Moscow in the amount of 4 million rubles. 19.02.2020 the Borrower asks the Bank to reduce the amount of payments under the mortgage agreement to 20,000 rubles for 3 months due to a decrease in income by more than 30% (the Borrower complies with all requirements established by the basic law). The Bank provides the Borrower with a credit vacation for up to 19.05.2020 with a reduced payment amount. The borrower’s financial situation has not improved due to the spread of COVID-19 and the introduction of restrictions, and he wants to completely suspend payments. It has the right to apply to the Bank with a request to suspend payments under the new law, but only after 19.05.2020.”

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The program “Together is beneficial” of the television company “Mir” recalls that the Russian Government has expanded the program to support parents with children under 18 years of age. For example, along with unemployment benefits, citizens will receive a payment for each child in the amount of 3,000 rubles from June to August inclusive, additional payments for children under 3 years old – 5,000 rubles for three months, from 3 to 16 years old – 10,000 rubles, and another payment – for all children under 16 years old – 10,000 rubles each.

In addition, the amount of maternal capital is growing. “The size of maternal (family) capital is increasing by 150 thousand rubles, – Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, told reporters. – Now it is 616 thousand 617 rubles. The same amount is paid at birth and adoption of the third and subsequent children from January 1, but only on condition that the parents have not used these measures of state support earlier.”

Read more – http://mirtv.ru/video/66385/

Court cases

The portal Pravo.ru covers a judicial precedent case that reached the Supreme Court of the Russian Federation: a magistrate made a decision on the case from vacation. Is such labor zeal appropriate? The courts of two instances considered it appropriate. But the Supreme Court indicated a gross violation of the procedure for bringing a person to administrative responsibility, established by the law on magistrates.

Alexey Te, lawyer of MCBA “Bureau of Lawyers “De jure”, explains: “The magistrate, who goes on a planned vacation, had to complete all preparatory procedural actions. The Chairman of the District Court did not adopt a decision on the assignment of duties to another magistrate for the duration of the leave, and this violated the procedure for considering the case. The magistrate, accordingly, is also not entitled to accept the case after the start of the vacation. ”

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The Highest Court also explained when communal payments can be made against debt, and when not. The Supreme Court recalled: if the payment document does not contain data on the billing period, the money deposited on its basis is counted as payment for housing and communal services for the period indicated by the citizen (Article 3191 of the Civil Code). “The Highest Court managed to maintain a balance of interests of citizens and management organizations. On the one hand, managers can set off money within the limitation period. On the other hand, they are not able to freely interpret the will of the consumer,” – Nikita Filippov, head of MCBA “Bureau of Lawyers “De jure”, commented on the decision.

Read more – https://pravo.ru/story/220595/

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The shareholder did not receive the apartment on time and went to court to recover a penalty, a fine, and moral damage. The developer claimed that the statute of limitations has passed. The courts of two instances decided that if the Statute of limitations on the main claim has expired, then the Statute of limitations on the additional claim has also expired. But the Supreme court explained that this is the wrong approach. The Statute of limitations is calculated separately for each overdue payment. “Judicial practice regarding the calculation of the Statute of limitations for claims for the payment of the penalty separately for each day of delay has been developed for a long time and unambiguously,” – says Alexey Te, lawyer of MCBA “Bureau of Lawyers “De jure”. In addition, in November 2019, the Presidium of the Supreme Court issued a review of judicial practice, which indicated: the provisions of paragraph 1 of Article 207 of the Civil Code do not apply to the requirement to recover a penalty in the case when the main obligation is fulfilled by the debtor with delay, but within the limitation period

Read more – https://pravo.ru/story/222510/

Holy Private Property

Experts of MCBA “Bureau of Lawyers “De jure” answered readers’ questions at the request of the Domofond.ru portal.

How to put up a fence if the neighbors have an old garage, a bathhouse and a temporary house in 50 cm from the border? They refuse to demolish them and they themselves threaten with a court, since the neighbor’s house is also not at a distance of three meters.

Yulia Meshkova, lawyer of MCBA “Bureau of Lawyers “De jure”, believes that “a bad world is better than a good quarrel.” “We recommend that you resolve the issue with your neighbors peacefully, since legal disputes in this category of cases take quite a long time and are accompanied by significant financial costs (payment of the state fee for the consideration of the claim, the cost of conducting an examination, etc.). In addition, given the existence of violations of building codes on your part, namely the location of the house at a distance of less than 3 m to the border of the neighboring plot, the results of the legal dispute may entail adverse consequences for you.” The lawyer recalls that according to Article 222 of the Civil Code of the Russian Federation, an unauthorized construction, including a building erected in violation of urban planning and building codes and rules, is subject to demolition or bringing into compliance with the parameters established by the mandatory requirements for the construction parameters provided by law.

Is it necessary to allocate a share in an apartment purchased using maternity capital to a third child who was born after buying the apartment?

Lawyer of “De jure” Igor Valuev is convinced that it is not necessary to do this, “because by the time of the birth of the third child, the maternity capital has already been used”. According to the lawyer, the rights to a share in such a dwelling on an equal basis with parents are acquired only by children born by the time the certificate for maternity capital is used. But consent to the sale from the guardianship authorities will have to be obtained (Clause 4 of Article 292 of the Civil Code of the Russian Federation, Article 21 of the Federal Law of 24.04.2008 N 48-FZ (as amended on 01.03.2020) “On Custody and Guardianship”).

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Mother gave her daughter ⅚ of apartments. After that, the daughter bought the remaining ⅙ from her brother for maternity capital and drove her mother out of the apartment. Mother saved up money, hired a lawyer, and returned her share of the apartment. But she turned out to be a hostage to the maternity capital. When buying a ⅙ share for maternity capital, the daughter doubled the value of the share. Is there a chance for the mother to declare the contract of sale of ⅙ share bought for the maternity capital invalid?

“De jure” lawyer Jacob Bulut believes that it will be problematic to challenge the contract of sale of ⅙ of the share by the mother, since the owner was not she, but her son. “In addition to the fact that there are defects in the disputed transaction, the mother will also need to prove to the court that her rights were violated when the transaction was concluded. Moreover, it should be borne in mind that, most likely, such a transaction is disputable, and not void, in connection with which the limitation period will be equal to one year (paragraph 2 of Article 181 of the Civil Code of the Russian Federation) from the date of the transaction. Perhaps at the moment it has expired,” – the lawyer says.

Is the court as the arbiter of the law and / or its creator?

The portal “Banks today” publishes an article by Igor Valuev, lawyer of “De jure”, in which he explains the difference between the Anglo-Saxon and Romano-German legal systems. For the first, the author notes, the predominance of precedent as a source of law is characteristic. “The rule-making function of the court not only gives the judge broad powers, but also as a result imposes higher requirements on the judges themselves, so that they can not only apply the law, but also when it is necessary to create it,” – Valuev writes.

The Romano-Germanic system, which includes Russia, is characterized by the codification of legislation following the example of Justinian’s digests.

“In an Anglo-Saxon legal system, a judge can go beyond the limits of the established law, recognizing the case as “unique” and requiring special regulation. However, this gives to the court more occasions for abuse of power. Russia has its own legislation that regulates the activities of judges, establishes the requirements that are imposed on them, and determines the order of their activities,” – the lawyer explains.

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