ARCHIVE FOR 2017 RUSSIAN
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Ноябрь 2017
CONTENT
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Evgeniy Sukhanov Entrusted Property Management as the Method of Enjoyment of Ownership under the Law of Obligations This article compares the legal concepts of Anglo-American trust, German Treuhand, Continental-
European fiducia and the Russian contract of entrusted management of property. It is demonstrated
that, from the perspective of Continental European law, the English trust constitutes a mix of
contractual elements (relations between the settlor, beneficiary and trustee governed by the law of
equity) and elements in rem (relations between a trustee and third parties governed by the common
law). The difference between trust relations in rem and trust relations in personam, as one can see
from case law, lies in the different causes of action rather than in the nature of the right (obligation
vs property) which is unknown to Anglo-American law. Attempts to regulate the trust in international
conventions show inconsistency and inability to draw a strict borderline between elements in rem
and elements in personam in the trust relationship. To the contrary, the German fiduciary transfer
of title or creation of entrusted management of property (Treuhand) constitutes the concept of the
law of obligations rather than property law. The same legal nature is found in fiducia and fiduciary
transactions which are known to French and Italian civil law. Sometimes, transferring property into
entrusted management is seen as a specific type of representation (agency) in contractual relations
(Austria, Czech Republic). In all cases, however, one should speak about civil-law contracts rather
than proprietary titles. The Russian contract of entrusted management is the method of effective
enjoyment that does not lead to any new or «split» ownership. Therefore, the attempts to use the
concept of trust in Russian civil law are unwarranted.
Keywords:
rights in rem, entrusted management of property, trustee, beneficiary ownership, contract of entrusted management, law of obligations, enjoyment of civil rights, pecuniary liability, property right, transaction, ownership
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Yuriy Fogelson Contractual Damages. Practice of Recovery Based on judicial statistics, this paper assesses the problem of damages recovery for breach of
contract and the impact of evidentiary standards reform on the recoverability of damages. It is shown
that, despite the 2011 precedent decision by the Supreme Arbitrazh Court of the Russian Federation,
success rate of claims for damages began to change only after Article 393 of the Civil Code of the
Russian Federation had been amended in 2015. It is also shown that this legal remedy remains
in low demand; it is much less trusted than penalty clauses. The available statistics indicates no
change in the success rate of claims for damages in percentage terms but shows their increase
per one successful claim. Courts were slow in applying the rules of Article 393 of the Civil Code
after the reform. Nevertheless, in 2016 the process was accelerated and largely associated with
subordinate claims. The reform of evidentiary standards is a step in the right direction, and we can
expect increasing trust in this remedy for breach of contract.
Keywords:
contractual damages, evidentiary standards, judicial statistics, civil law reform
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Elena Ostanina Protection of Pseudonyms and Names The RF Supreme Court recent case (Civil Chamber Ruling No.5-KG17-102 of 15 August 2017)
addresses the following question: whether to publish books under a pseudonym prior to the new
version of Art. 19 of the Civil Code the autor had to receicve a consent of a person whose name was
used as the pseudonym? It is also unclear who needs to give his consent to the use of the pseudonym
which represents collective authorship. The author insists on interpreting Art. 19 purposely. It is not
forbidden to adopt a pseudonym that can sound like a real name. It is forbidden to adopt a different
identity, acting as another person, assuming the rights and responsibilities of another person.
Keywords:
pseudonym, right to name, abuse of right, copyright
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Eleonora Vitol, Maksim Bashkatov On the Issue of Credit Notes as a Variety of Structural Product. Part Two This article is a continuation of the research devoted to the problem of credit linked notes — a variety
of structured products which is widespread on the Russian financial market. The authors carry out a
detailed analysis of the model of issuing credit linked notes used by Trust Bank, analyzing the judicial
practice and current opinions in the domestic literature. Based on the comparison of the mechanism
used by Trust Bank to attract depositors’ funds with the classical model of issuing credit linked notes,
the article presents arguments against classifying the structured product offered by Trust Bank as a
credit linked note.
Keywords:
credit linked note, structured product, Trust Bank case, financial market, securities market
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Ksenia Usacheva Transactions Concluded to Creditors' Prejudice: Their Avoidance in Germany and Austria The long-forgotten challenge against transactions concluded to creditors' prejudice, which operated
under imperial Russian law, raises questions that find no answers with lawmakers or in the existing
doctrine. At the same time, judicial decisions increasingly involve certain elements of its application
on an almost random basis (e.g. the RF Supreme Arbitrazh Court case law followed by the RF
Supreme Court Rulings dated 1 December 2015 (No. 4-КG15-54), 8 December 2015 (No.5-КG
15-179 and No. 34-КG 15-16), 20 September 2016 (No. 49-КG16-18), 28 February 2017 (No.32-
КG16-30) etc.). Therefore the intensive discussion of this mechanism, which has developed in other
jurisdictions during its oblivion in domestic law, may bring interesting insights to Russian lawyers.
Of special interest are the German and Austrian laws containing century-old special provisions on
challenges of transactions prejudical to creditors that have been widely applied and supported by
doctrinal concepts.
Keywords:
bankruptcy, challenge against debtor’s transactions, challenge of transactions concluded to creditors' prejudice
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