KAZAN UNIVERSITY LAW REVIEW, 2017, том 2, № 4


KAZAN UNIVERSITY LAW REVIEW
Volume 2, Winter 2017, Number 4


    Journal President:

Ildar Tarkhanov (Kazan Federal University, Russia)

    Journal Editor-in-Chief:

Damir Valeev (Kazan Federal University, Russia)


       International Editorial Council:
                         Sima Avramovic

                 (University of Belgrade, Serbia)
                        Susan W. Brenner
       (University of Dayton School of Law, USA)
                        William E. Butler
(Pennsylvania State University, USA)
                      Michele Caianiello
                   (University of Bologna, Italy)
                         Peter C.H. Chan
(City University of Hong Kong, China)
Hisashi Harata
                   (University of Tokyo, Japan)
                            Tomasz Giaro
                 (University of Warsaw, Poland)
                      Haluk Kabaalioglu
                   (Yeditepe University, Turkey)
                            Gong Pixiang
             (Nanjing Normal University, China)
                   William E. Pomeranz
                      (Kennan Institute, USA)
                              Ezra Rosser
(American University Washington College of Law, USA)
                      George Rutherglen
                   (University of Virginia, USA)
Franz Jurgen Sacker
            (Free University of Berlin, Germany)
Paul Schoukens
                        (KU Leuven, Belgium)
                 Carlos Henrique Soares
(Pontifical Catholic University of Minas Gerais, Brazil)
                   Jean-Marc Thouvenin
(Paris Ouest Nanterre La Defense University, France)


    Russian Editorial Board:
    Aslan Abashidze

(Peoples’ Friendship University of Russia, Russia)
Adel Abdullin
(Kazan Federal University, Russia)
Lilia Bakulina
(Kazan Federal University, Russia)
Igor Bartsits
(The Russian Presidental Academy of National Economy and Public Administration, Russia)
Ruslan Garipov
(Kazan Federal University, Russia)
Vladimir Gureev
(Russian State University of Justice
(RLA Russian Justice Ministry), Russia)
Pavel Krasheninnikov
(State Duma of the Russian Federation, Russia)
Valery Lazarev
(The Institute of Legislation
and Comparative Law under the Government of the Russian Federation, Russia)
Ilsur Metshin
(Kazan Federal University, Russia)
Anatoly Naumov
(Academy of the Prosecutor's Office of the Russian Federation, Russia)
Zavdat Safin
(Kazan Federal University, Russia)
Evgeniy Vavilin
(Saratov State Academy of Law, Russia)

KAZAN UNIVERSITY LAW REVIEW
Volume 2, Winter 2017, Number 4


    Journal executive secretaries:
    Marat Zagidullin

(Kazan Federal University, Russia)
Jaroslaw Turlukowski (University of Warsaw, Poland)

    Editor of English texts:

           Natalia Samoilova (the University of St. Andrews, Scotland)

    Assistant to the Editor-in-Chief:

Elena Bazilevskikh (Kazan Federal University, Russia)


    Journal team:

Rustem Davletgildeev, Ruslan Sitdikov, Ivan Korolev, Maxim Voronin, Marat Shamsutdinov, Ramil Gayfutdinov, Ivan Novikov, Iskander Asatullin, Durmishkhan Afkhazava, Nikita Makolkin, Murat Kamarov, Kamilla Khabipova, Alina Astafyeva, Anastasiia Bychkova, Olga Anisova, Tatiana Shishkina, Suyumbika Nigmatullina, Iuliia Ustkachkintseva.


«KAZAN UNIVERSITY LAW REVIEW» (registered by The Federal Service for Supervision of Communications, Information Technology and Mass Communications in Russia on 17 November 2016
(certificate number PI № FS 77-67763 (ПИ № ФС 77-67763))

Publication:
four issues per year (one issue per quarter)

Editorial office:
         room 326, 18 Kremlyovskaya St., KAZAN, 420008 Russia


ISSN 2541-8823
The reprint of materials of the journal “Kazan University Law Review” is allowed only with the consent of the Publisher. Link to the source publication is obligatory. The Publisher or the Editor’s office does not render information and consultations and does not enter into correspondence. Manuscripts can not be returned. The Founder and the Publisher are not responsible for the content of advertisements and announcements.
Opinions expressed in the contributions are those of the authors and do not necessarily reflect the official view of the organizations they are affiliated with or this publication.

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Winter 2017, Number 4

    Dear Readers,

    I would like to present for your attention the fourth regular issue of the Kazan University Law Review, final in 2017.
    This issue of the journal, which is now lying in front of you, presents articles on topical problems of theory and practice of Russian and foreign law.

    The opening article is written by our great teacher, Professor Boris Zheleznov, one of the authors of the Constitution of the Republic of Tatarstan, an outstanding scholar and lecturer of the University of Kazan (Russia). In his article, Professor Zheleznov elaborates on the history of formation of the modern status of republics in the 1990s in Russia. It is very valuable that this material is presented in the first person, from the point of view of the direct participant in the modern constitutional process taking into account the author’s own memories as well as the archival documents.
    The next article written by our colleague, a remarkable graduate of the University of Kazan and now the pro-rector and professor of Saratov State Law Academy, Evgeny Vavilin (Russia) is devoted to the fundamental question of the principles of civil law. It is very important that the article analyzes the content and functional purpose, the role of the main principles of civil legislation, identifies the problems associated with their non-compliance in the process of legalization and enforcement. Comparing the system of civil law principles of Russia and China, the author reveals the uniqueness of the two legal orders and the general developmental tendencies, analyzes the most urgent problems related to both the imperfection of the system of principles and the lack of a mechanism for their implementation in civil law relations.
    Of international nature are the science of notarial law and contiguous with it the civil procedural doctrine, which are very extensively presented in the article of the assistant professor of the University of Kazan Marat Zagidullin (Russia). In the Russian legal reality, the system of control over the activities of notaries and the institution of their responsibility has undergone significant changes in recent years. These changes are generally of positive nature and among others include the following: the Code of Professional Ethics for Notaries in the Russian Federation was approved, a multi-level system for reimbursing property damages and liability insurance, increased insurance amounts, increased criminal liability, etc. At the same time, there is a presumably large number of latent offenses by notaries performing inexpensive or insignificant notarial acts that is a consequence of the ineffectiveness of traditional means of control and

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Winter 2017, Number 4

measures of liability of notaries provided by law. To solve the above problems, the author of the article suggests rather interesting solutions including the introduction at the legislative level of other, non-traditional means of control and responsibility of notaries, such as a unified rating system and detailed statistics of each notary’s activity and based on it a strict system of fines and other measures of responsibility, as well as a system of instant response to complaints from citizens and organizations.
   In the “Commentaries” section we present an interesting comparative legal study of our colleague from the Research Center of East European and Central Asian Law, the Faculty of Law and Administration of the University of Warsaw, Patrick Kalinowski (Poland), examining legal issues related to the real estate trade in Poland. As for the content of the article, it should be noted that in the introduction the author presents the concept of real estate trade within the framework of the doctrine of agricultural law and the definition of agricultural real estate. Then he shows the main institutions of real estate law comparing them to the institutions of civil law and others. Special attention is paid to specific norms of agricultural law related to the sale of agricultural real estate, which are perceived as controversial. The author refers to these provisions as more advanced provisions of the Constitution of Poland and the European Union.
   To complete the practical section of the current issue, we present “Conference Reviews” that contain materials of our colleagues from Kazan on the events held at the University of Kazan and University of Nanjing (China) in the autumn and winter of 2017: Review of the 13th International Scientific Conference “Derzhavin Readings” (Kazan Federal University , September 21-23, 2017, Kazan, Russia) and Review of the annual international symposium: “The development of the Rule-of-Law in the Processing of Modernization” (Nanjing Normal University, October 20-21, 2017, Nanjing, China ).
   Dear readers, the final issue of 2017 falls on New Year’s and Christmas holidays. Let me express my sincere gratitude for our joint work. We are glad to have all of you as our authors and readers and we hope to serve you in the new year as well. Have an amazing 2018!

With best regards,
Editor-in-Chief
Damir Valeev

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Winter 2017, Number 4



            TABLE OF CONTENTS


   Damir Valeev (Kazan, Russia)
   Welcoming remark of the Editor-in-Chief ................................3

ARTICLES:

   Boris Zheleznov (Kazan, Russia)
   The historical formation of the present status of the republics in the 1990s in Russia .................................................6
   Evgeny Vavilin (Saratov, Russia)
   Principles of Civil Law of Russia and China........................... 26
   Marat Zagidullin (Kazan, Russia)
   Types of legal liability of the notary: actual problems .............. 42

COMMENTARIES:

   Patryk Kalinowski (Warsaw, Poland)
   The outline of principles of agricultural properties trade in Poland . 56

CONFERENCE REVIEWS:

   Nikita Makolkin (Kazan, Russia)
   Nigina Nafikova (Kazan, Russia)
   Review on the XIII international scientifically-practical conference “Derzhavin Readings”.................................................. 66
   Aydar Gubaidullin (Kazan, Russia)
   Maxim Voronin (Kazan, Russia)
   Elena Bazilevskikh (Kazan, Russia)
   Legal science of Russia and China compare development vectors.
   Review of the international symposium on China and Russia: “The development of rule-of-law in the process of modernization” ..... 71

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Winter 2017, Number 4





                ARTICLES





                                   Boris Zheleznov

                                   Doctor of Legal Sciences, Professor Professor of the Department of Constitutional and Administrative Law, the Law Faculty of Kazan (Volga region) Federal University



            THE HISTORICAL FORMATION OF THE PRESENT STATUS OF THE REPUBLICS IN THE 1990S IN RUSSIA



DOI: 10.24031/2541-8823-2017-2-4-6-25

    Abstract: The article is reviewing the historical formation of republics’ sovereignty status in the beginning of the XX century in Russia. The Declaration of the Russian republics on state sovereignty followed the Declaration on State Sovereignty of the RSFSR on June 12, 1990. The texts of republics’ declarations varied a bit, however, it is interesting to note that the Declaration of the Republic of Tatarstan, unlike of the other republics declarations, did not mention that Tatarstan is a subject of the RSFSR and had some other special traits. The adoption of declarations on state sovereignty in some republics took place in a complex struggle against national separatists. After getting the status of sovereignty, republics started procedures of adopting Constitutions and establishing Constitutional Courts. The author shows problems of new subjects of the Russian Federation in the beginning of their formation and consequences of some decrees of leading political leaders and contractual relationships of the republics within the Federation.
    Keywords: state sovereignty, status, republics, XX century, declaration, history, Russia

    I. Declaration of the Russian republics on state sovereignty

    The Declaration of the Russian republics on state sovereignty followed the Declaration on State Sovereignty of the RSFSR adopted by the First Congress of People’s Deputies of the RSFSR on June 12, 1990, which, in particular, proclaimed the right of every nation

BORIS ZHELEZNOV

7

to self-determination in the national and cultural forms which it selected. In fact, all of them were based on the ideas of the Russian Declaration¹.
    The North Ossetia ASSR was the first of the ASSR of Russia - July 20, 1990 - who adopted the Declaration. Then, from August 1990 to January 1991, the Karelian, Komi, Tatar, Udmurt, Yakut, Buryat, Bashkir, Kalmyk, Mari, Chuvash, Chechen-Ingush, Tuva, and Kabardino-Balkarian ASSRs also did the same. In December 1990, Mordovia adopted the Declaration not on state sovereignty, but simply on the state and legal status of the Mordovian SSR, which contained a refusal of the autonomous status of the republic, and a similar act was adopted in May 1991 by Dagestan. In 1992, four autonomous regions: Adygea, Gorno-Altai, Karachaevo-Cherkessia, Khakassia, and Ingushetia, separated from the Chechen-Ingush republic, declared themselves to be the autonomous republics of the RSFSR.
    The texts of the declarations varied significantly, but they all were united by an unilateral refusal of the autonomous status and proclamation of the state sovereignty of the republics, unconditional recognition of land, natural resources and other resources on the territory of the republic as the exclusive property of its people, announcing the declaration as a legal basis for developing new constitutional and current legislation, conclusion of an agreements with the federation, the restriction of the operation of normative acts that do not correspond to its sovereign status on the territory of the republic, etc. However, there were also significant differences: for example, the Declaration of the Republic of Tatarstan, unlike declarations of the other republics, did not mention that Tatarstan is a subject of the RSFSR; the Republics of Tuva and Komi SSR declarations provided for the possibility of secession from the USSR and the RSFSR by way of a referendum. As for the form of the declarations, some were divided into sections (Buryatia), others - into articles (Yakutia-Sakha, Gorny Altai), yet others -into points (Bashkortostan, North Ossetia, Tatarstan, Komi, Chuvashia). Perhaps the briefest of all was the Declaration of the Republic of Tatarstan.
    On the question of whether the republic will be a part of the RSFSR, Tatarstan’s position seems to be the most consistent. It was determined by the fact that, in accordance with the USSR Law of April 26, 1990, which provided for a new order of delineation of powers between the USSR and the subjects of the federation, the autonomous republics were declared as subjects of the USSR, but, as it were, “second class”, i.e. they were not sovereign, without the right to withdraw from the federation and only with an advisory vote in the Supreme Soviet of the USSR. In addition, it turned out that the autonomous republic of Russia should be considered simultaneously as a subject of both federations -the USSR and the RSFSR, and this, of course, was a legal nonsense, not to mention that it was contrary to the constitutional legislation. The Republics of Russia, except the Tatarstan, in the declarations, as noted above, confirmed their Russian legal existence and practically did not react to the Law of April 26, 1990, while Tatarstan in this situation

1

    See: Legal status of the Republic of Tatarstan. Kazan, Tatarstan Publishing House, 1996. - p. 7

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Winter 2017, Number 4

8

did not consider the possibility of mentioning its legal personality as part of the RSFSR in the Declaration; its Supreme Council raised a question of directly entering into the USSR as a sovereign union republic. Later, on July 5, 1991, the Supreme Council of Tatarstan also decided that the TSR as a sovereign republic, which had decided to sign the Union Treaty directly and independently, declared its right to full quota of seats in the Republic’s Council of the Supreme Soviet of the USSR. Thus, Tatarstan was the only republic that consistently and logically pursued a line to its full legal existence only in the USSR¹.
    Adhering to the same logic and after the collapse of the Soviet Union, the Supreme Council of the Tajikistan Republic on December 26, 1991 adopted a Declaration on joining as a founder the Commonwealth of Independent States. This declaration was left without consequences².
    As a result, after the collapse of the Soviet Union, Tatarstan was a republic whose legal existence in the Russian Federation was “in limbo”, which meant a particular urgency in concluding a bilateral treaty between the Russian Federation and the Republic of Tatarstan.
    The adoption of declarations on state sovereignty in some republics took place in a complex struggle against national separatists who advocated a complete secession from Russia. A serious situation then arose, for example, in Tatarstan, where nationalist associations manifested a great political activity, in particular, Ittifak and Azatlyk, created in the spring of 1990. Together with the most radical representatives of the Tatar Social Center (TSC), they called Russia”another state”, advocated for the withdrawal of all power-wielding agencies of the republic from the authorities of the federation, etc. A number of deputies represented these views in the Supreme Council of the Republic of Tatarstan. Numerous nationalist demonstrations were organized near the parliament building, in the cities of the republic.
    By the decision of the Presidium of the Supreme Council of the TASSR, a working group consisting of 17 people (politicians and scientists), was formed to prepare a draft Declaration; On August 13, 1990, the Presidium of the Supreme Council approved the draft and published it in the local press. This project was tolerant in relation to Russia in some positions, for example, it contained compromise provisions: Tatarstan is a subject of the renewed federations - the RSFSR and the USSR, and that “the republic promotes the implementation of union programs on its territory”³.
    However, during its consideration at the session of the Republic Supreme Council on August 30, 1990, the project was sharply criticized by radical deputies, that resulted in the formation of an editorial commission which changed its text. Ultimately the Supreme Council adopted a document which significantly differed in its content from the originally proposed text.

¹ See: The Republic of Tatarstan: modern history, 2000, V. I - p. 265.

² See: The Republic of Tatarstan: modern history, 2000, V. I - p. 267, 278.

³ Soviet Tatariya, 1990, August 14.

BORIS ZHELEZNOV

9

    The question of the nature of the declarations adopted at the turn of the 1980s and 1990s years by the allied and autonomous republics is of serious interest.
    According to the constitutional legislation of the USSR and the Union republics, the latter were considered to be sovereign states and had the right to freely withdraw from the USSR. But this right was purely formal, politicized, one could even say it had a propagandistic nature, and in fact until the late 80s, no one could think about its implementation. Therefore, after the Baltic republics had left the USSR, the remaining union republics, using the fruits of democracy provided by the restructuring that started, also began to adopt declarations on their state sovereignty. But at first they meant not so much the withdrawal from the union federation as the transformation of the legal fiction, which was their sovereignty under conditions of Soviet authoritarianism, into legal reality. In other words, the declarations on state sovereignty of the twelve union republics did not change anything in the constitutional field of the federation, they only confirmed the relevant provisions of the constitutions.
    As for the declarations on state sovereignty of the autonomous republics, their essence was different. Generated in many respects by socio-economic, political and cultural reasons, similar reasons for appearing of the declarations of the union republics, they, unlike the latter, contradicted all the constitutions in the country and marked a revolutionary break of the constitutional field. The republics, which were considered autonomous and did not have the right to withdraw from the federations, unilaterally established their new state status, declared their sovereignty and the need to change all constitutional legislation.
    What was the nature of the declarations of autonomous republics on state sovereignty? The question is arguable. In any case, even those republics (for example, Bashkiria), which in the text of declarations on sovereignty directly indicated that they consider these acts to be laws, nevertheless viewed them as program documents combining political, legal and ideological principles.
    Subsequent events showed that the points of these declarations (after a certain correction) still needed legislative consolidation, namely, in the constitutions and current laws of the republics. A number of points was not taken into account in the Constitution of the Russian Federation of 1993 and the current federal legislation. And the main provision that formed the essence of the declarations - about the state sovereignty of the republics - was rejected by the Constitutional Court of the Russian Federation¹. Moreover, after dramatic decisions of the Constitutional Court of the Russian Federation, many republics began to accept acts that specified the nature of their earlier declarations, since they decided to remove from their constitutions a reference about the state sovereignty, or to “soften the conditions” for its implementation. Thus, Art. 2 of the Chuvash Republic Law on July 23, 2001, established: “... In connection with the adoption of the Constitution of the Chuvash Republic on November 30, 2000,

1

   See: the acts of Russian Constitutional Court: Resolution on March 12, 1992 N3-P; Definition on June 27, 2000 N92-0; Definition on December 6, 2001 N 249-0; Definition on December 6, 2001 N250-0.

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Winter 2017, Number 4

10

and also considering that the Declaration on State Sovereignty of the Chuvash Soviet Socialist Republic, adopted by the Supreme Council of the Chuvash SSR on October 24, 1990, has the character of a solemn program statement defining the tasks and main directions for the development of the new Constitution of the Chuvash Republic, and at the moment does not have any legal consequences, the adoption of this act in the form of a law should be recognized as invalid and considered as a Declaration “¹.
    The State Assembly (Kurultai) of the Republic of Bashkortostan solved the problem in a peculiar way. On January 27, 2005 it approved the modified text of the Declaration on State Sovereignty of the Bashkir SSR, which was originally adopted (October 11, 1990) by its resolution, excluding from it the mention that the Declaration has a force of law. Truly, not all the republics subsequently made adjustments to the understanding of the nature of their declarations on sovereignty by legislative means. For example, the issue of the legal nature of the Declaration on State Sovereignty of Tatarstan was resolved by the definition of the Supreme Court of this republic of June 17, 2004: having examined the statement of the Republic of Tatarstan Prosecutor on non-compliance with the provisions of the Constitution of the Russian Federation and the decisions of the Constitutional Court of the Russian Federation, p. p.1 and 2 of this Declaration, the Court found that the Declaration itself does not legally regulate anything without legislative implementation. Proceeding from this definition, the State Council of Tatarstan did not consider the necessity to establish new acts on the question of the legal nature of the Declaration of August 30, 1990.
    Therefore, it can be argued that the declarations of republics on state sovereignty, even if initially they were equated in the republics with laws, and somewhere were placed above laws, they were not legal acts by their legal nature, but they were the policy documents of a political and ideological nature, which had a significant impact on the subsequent formation of the constitutional and legal field in the country.

    II. The post-Soviet constitutions of the republics of Russia

    In the declarations on the state sovereignty the republics envisaged the renewal of their constitutional legislation. In place of the “stamped” Soviet constitutions of 1978, they drafted fundamental laws that establish the republics’ status, which has been updated unilaterally, taking into account their specific characteristics.
    The process of updating the constitutional legislation in the early 90s in each republic was unique. An example in this point is the Republic of Tatarstan, which was one of the first to start drafting its new Constitution, proceeding from paragraph 5 of the Declaration on State Sovereignty of the Republic of Tatarstan on August 30, 1990, which read: “This Declaration is the basis for the development of the Constitution of the Tatar SSR ...”².


¹ Republic, 2001, June 28.

² The Declaration on the State sovereignty of the Republic of Tatarstan. - Soviet Tatariya, 1990, August 31.

BORIS ZHELEZNOV

11

    On August 31, 1990, the day after the adoption of the Declaration on State Sovereignty, the Supreme Soviet of the TSSR formed a Constitutional Commission consisting of 39 prominent politicians and scientists of the republic, chaired by M.S. Shaimiev, the chairman of the parliament and the first secretary of the Tatar regional committee of the CPSU. During the preparation of the project, the Presidium of the Supreme Council repeatedly held scientific conferences, on which the most important provisions of the future fundamental law were discussed, and the sharpest discussions were held on the issue of the state sovereignty of the republic and its place in the system of the Union and Russian Federations. At the end of 1991, the draft Constitution was published, but before the promulgation of it - on December 8, 1991 - the Presidium of the Supreme Council of the Republic of Tatarstan adopted a resolution on organizing its public discussion. However, on the imperative referendum, by the decision of the Supreme Council of the Republic of Tatarstan on February 21, 1992, instead of the whole project only one question was put forward: “Do you agree that the Republic of Tatarstan is a sovereign state, a subject of international law, building its relations with the Russian Federation and other republics, states on the basis of treaties?”¹.
    The organization of a referendum on this issue immediately aroused serious concern in political circles and government agencies of the federal center. On March 5, 1992 the Supreme Council appealed to the people, the Supreme Council and the President of Tatarstan, expressing hope that the people and higher institutions of the republic will take a “wise decision”, which will not undermine the integrity of the federation, to which the Presidium of the Supreme Council of RT on March 7 reacted by turning to the people of the republic with the words: “it is unclear why these explicit and clear goals of the referendum ... cause rejection by the Supreme Council of the Russian Federation”².
    On March 12-13, 1992 the issue was considered by the Constitutional Court of the Russian Federation, which resolved: “To recognize the resolution of the Supreme Council of the Republic of Tatarstan on February 21, 1992 on holding a referendum inconsistent with the Constitution of the RSFSR in the formulation of the issue that the Republic of Tatarstan is a subject of international law and builds its relations with the Russian Federation and other republics on the basis of equal treaties, since this is due to a unilateral change in the national-state system of the RSFSR and means that the Republic of Tatarstan does not belong to the RSFSR” ³. Following the decision of the Constitutional Court, the Supreme Council of the Russian Federation once again expressed its attitude to the future referendum: on March 19, 1992 it invited the President of the RSFSR to take measures to enforce the court decision, and announced that the results of the referendum would not have a legal force. The Supreme Council of

¹ Republic of Tatarstan: modern history, v.1. - p. 306.

² Republic of Tatarstan: modern history, v.1. - p. 312.

³ Decision of the Constitutional Court of the Russian Federation on March 12, 1992. № 3 - P. As noted above, this resolution concerned the Declaration on State Sovereignty of Tatarstan.