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ARCHIVE FOR 2018    RUSSIAN

Июнь 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

M.L. Shelyutto On the Necessity of Changing the Rules and Practice of Calculating Child Support Payments
The paper analyses the child support models employed by different countries, including Russia, and demonstrates a variety of calculation methods. The basic support calculation method applied by Russian courts is a flat percentage to the income of the parent with whom the children don’t live together in one household. The amount depends on the number of children. However, there are many other factors that can be taken into consideration to calculate the support: both parents’ resources and expenses, the child’s age, economic data on the cost of raising children, the amount of contact etc. Such models are more complicated, yet more fair. The perceptions of fairness are very important to cooperation between the parents and, consequently, beneficial to their children.
Keywords: child support, child support models, calculating child support payments
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O.G. Puchkova To Get Ahead... Be the Firstborn!
The article considers a pressing and important problem in administrative and judicial practice which arises when amounts of ‘fractional’ child support change based on the linguistic interpretation of family law regulations. It is demonstrated that courts confuse the rules which regulate the collection of child support for the first time with the rules concerning changing the amount of child support. They also apply the rules for collecting fixed amounts of child support to changing fractions of child support.
Keywords: family law, child support, fractional child support, children, Family Code, family, childhood
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V.V. Aleynikova How Property Division Affects Maintenance between Former Spouses: Problem Statement and Proposed Solution
This article looks at the interaction of rules governing a division of marital property and alimony arising between former spouses. The author concludes that the division of community property and the recovery of alimony needs to be revised in light of foreign legislation.
Keywords: division of community property, alimony, maintenance, needs, disability, subsistence level
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P.A. Lomakina Challenging Alimony Agreements in Bankruptcy. Balancing Interests of Debtor’s Children and Creditors
This paper examines minors’ rights to maintenance, parents’ alimony obligations and their right to a reasonable amount of alimony versus bankruptcy creditor rights to fulfilment of obligations by insolvent alimony payors under civil law contracts. The author studies the Russian Supreme Court cases where the interests of children take priority over the interests of bankruptcy creditors in the challenges of alimony agreements. Thus, any alimony agreement affecting creditors’ rights will be void only to the extent the amount is found to be in excess.
Keywords: child support, protection of weaker party, alimony agreement, interests of bankruptcy creditors, insolvency, bankruptcy
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N.V. Trigubovich Parental Responsibility and Custody: Hague Conventions and Russian Legislation
The article analyses interpretation of such concepts as parental responsibility, custody and access in relation to the application of the 1980 Hague Convention and the 1996 Hague Convention. The author examines various approaches used to define the legal nature of ne exeat right. The article contains a comparative review of conventions and the Russian legislation regulating relations between parents and children.
Keywords: parental responsibility, custody, access, ne exeat right
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Discussion Board

Yu.E. Monastyrsky Role of Creditor’s Fault in Creation of Scope of Liability and Unforeseeability of Losses
The author deals with the significance of creditor’s fault institute incorporated in art. 404 of the Civil Code of the Russian Federation. Notwithstanding the active orientation of national courts and arbitration tribunals to so-called guilt collision to justify reducing the claimed losses, this issue is unjustly rarely covered in the doctrine. According to the author, after a fundamental work by the eminent Russian lawyer T.M. Yablochkov dated 1911 this subject was analysed twice in 1940s academic publications during the entire Soviet period. Contemporary publications concerning the significance of creditor’s fault can be counted on one hand. However, the specified problem is of fundamental importance to the effectiveness of claims to recover losses, to justify their reasonable foreseeability.
Keywords: creditor’s fault, losses, civil liability, foreseeability
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Press Release

 

 

 

Theory and practice

O.A. Zharkova, V.Yu. Kazarin Redistribution of Private Land and Public Land as the Basis for the Emergence of Land Rights
In this article, the authors examine change in the legislator’s approach to the landowner’s right to increase the lot area by adjoining a part of the surface area of the land. Special attention is paid to the procedure of private and public land lots’ redistribution, which was enacted on 1 March 2015, and to the analysis of adjudicatory practice under Chapter V.4 of the Land Code of the Russian Federation. Overall, the authors positively assess the dynamics of legislation and note that courts properly apply the newly introduced legal institution. The authors compare the legal nature of redistribution as a method of land lots’ formation and as a ground for emerging rights to land. They also reveal a new meaning of the term ‘land’ to be understood as an object of property relations. It is found that land was strictly part of land use up until 1 March 2015, unlike lots that are considered as objects of property relations under land laws (Article 1.1-1 of the Russian Land Code). Since then land has also been used as an object of property relations in public or private law. However, only lots can be included as an object in a civil law transaction.
Keywords: specification of boundary location, increase in area, lot layout, land surveying project, conclusion of agreement
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E.M. Klyuchareva Prohibition for a Director to Compete with a Company: Experience of the UK, Delaware (USA), Germany and Russia
The article elaborates on statutory regulation and case law in the United Kingdom, Delaware (the USA), Germany and Russia in respect of competing activities of members of management bodies of the legal entity, including usurpation of corporate opportunities. The United Kingdom has adopted a broader approach prohibiting competing activities of a director and requiring the latter to put any emerging business opportunities to the company for consideration. Delaware limits the director’s exposure to breach of duty of loyalty only to the cases involving an actual conflict of interest and the usurpation of corporate opportunities, which represent a real interest for the company and fall within its line of business. Germany explicitly prohibits competition of members of the management board of a joint stock company and a chief executive officer of a limited liability company with the company itself, and in certain cases attributes opportunities that the company is ready to exploit and/or that fall within its lines of business to the company. In Russia, respective regulation and practice are being developed at the moment, but the existing examples of such cases seem to follow American standards.
Keywords: duties of members of management bodies, fiduciary duties, non-compete obligation, corporate opportunity doctrine
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R.S. Zardov On the Justification of Statuory Penalty Preservation at the Present Stage
This paper deals with the admissibility of the statutory penalty mechanism in a modern market economy. Recognising the possibility of limited application of civil penalty sanctions that pursue the punishment of the damage causer as their main goal and are imposed irrespective of compensation for the infringed interest of the creditor, the author points out that their regulation appears to be unjustified within a single framework of the statutory penalty.
Keywords: statutory penalty, overcompensation, punitive damages
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S.A. Korolev Certain Aspects of Judicial Assistance in Taking of Evidence Abroad: As Illustrated by Matrimonial Proceedings
The number of disputes in Russian courts involving a foreign element has increased over the recent years. Proper resolution of such disputes is often contingent on the existence and use of efficient mechanisms for obtaining evidence in foreign jurisdictions. The article analyses certain aspects of judicial assistance in cross-border taking of evidence, as exemplified by family law cases. International treaties to which Russia is a party and domestic legislation of some foreign countries provide the opportunity for obtaining evidence abroad in civil matters pending before Russian courts. However, such tools have rarely been entertained in practice.
Keywords: evidence, letter of request, cross-border taking of evidence, family matters
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Foreign experience

E.I. Papushina Legal Nature of the Trust in Anglo-American Law
The author analyses the possibility of borrowing the provisions of Anglo-American law regarding the trust and concludes that there are no doctrinal foundations for such borrowing in domestic civil law. The trust is an alien institution for Russian civil law, and the borrowing-related aspirations of individual civilians are not based on legal reasons.
Keywords: possession, trust, right in rem, right in personam
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