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ARCHIVE FOR 2018    RUSSIAN

Июль 2018

CONTENT

 

 

Andrey Gromov Approval by Wardship and Guardianship Authority of a Sale of Flat Belonging to a Minor
Case comment on the judgment of RF SC No. 48-КГ18-1, 27 February 2018
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Tatyana Krasnova Servitude for Construction and Use of Infrastructure Facilities
Case comment on the judgment of RF SC No. 306-ЭС17-20590, 17 April 2018
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Artem Kukin, Olga Pleshanova Undervalued Charge
Case comment on the judgment of RF SC No. 305-ЭC16-10864, 17 April 2018
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Evgeniy Suvorov Loss of Value as a Way to Detrimentally Affect Creditors’ Interest and Defense against It
Case comment on the judgment of RF SC No. 301-ЭС17-13352, 25 January 2018
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Sergey Budylin Damage for Breach of Confidentiality, or the Fall of the Arctic Fox Project
Commentary on the Case CF Partners (UK) LLP v. Barclays Bank Plc & Anor [2014] EWHC 3049 (Ch) In this case of the High Court of England and Wales a bank received some confidential information from a client. This happened during negotiations on providing a credit to purchase shares in a company that was, according to the client, seriously underestimated. The negotiations were unsuccessful as the credit was not provided and the purchase did not go through. Soon after that, however, the bank itself purchased the supposed target. The would be borrower sued the bank for the breach of confidentiality agreement. The pursuant could not prove that they have a clear confidentiality agreement with the bank. Neither could he show any damages caused to him by the bank’s purchasing of the company. Despite this the court eventually found that the bank violated the client’s rights when it used for its own purposes the information entrusted to it by the client. The judge estimated the damages by supposing what amount the bank would have paid for lifting the ban on the use of the information if it had freely negotiated this amount with the client.
Keywords: confidentiality agreement, England, carbon credits, damages
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Elena Ostanina The Case of a Common Fence
German Federal Supreme Court Judgment V ZR 42/17 of 20 October 2017 and Case Commentary The right to use an object standing between adjacent land plots is the most typical case of neighborhood rights. In this case, one neighbor replaced a low metal fence with a high, non-transparent wooden fence. Despite the lack of information about who and when raised the disputed fence, the German Supreme Court applied a presumption and ordered the defendant to demolish the fence.
Keywords: neighborhood rights, ownership, land plot, lease
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FREE TRIBUNE

Kirill Nam Development of the Good Faith Principle. Modern Stage. Internal Systematics
Russian civil law has recently introduced the good faith principle. However, the Russian Civil Code contains some other legal institutes that have once been developed by German law from the same principle. Those institutes, as well as the good faith principle itself, are new to Russian law. The lack of research in this area makes it significantly harder to apply the good faith principle and related rules. The article considers modern German approach to this principle and explains its system. In Germany, this principle is widely applied by courts and has a solid theoretical background. This makes the German experience priceless for Russian scholars and lawyers. It should help them to understand this difficult principle in all its aspects and have a systematic knowledge of it and the rules that are connected to it.
Keywords: the good faith principle, Treu und Glauben, functions and system of the good faith principle
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Konstantin Sklovskiy, Vladislav Kostko On the Concept of a Thing. Money. Real Estate
According to Roman tradition a thing usually means body, tangible object. Also in modern civil law legal experts talk about natural object. This article shows another understanding, where thing is not natural but cultural object. It is the embodiment of idea, all its basic characteristics are social. Authors rely on Arendt’s work and reveal thing as purely human creation which is opposed to nature. Also a thing can be a commodity just in some cases, this is its accidental quality. All things are material but they should not always be regarded as a body. Substantial characteristic of a thing — to be subjectmatter of possession. Based on this understanding, the authors discuss the problem of money. It is submitted that digital currency cannot be regarded as money since no one can disturb or take away possession of digital currency. It could acquire characteristics of money when special means appear by which it will be possible to take possession of digital currency. The article also analyses the nature of a land plot. It is argued that it is not a natural object.
Keywords: thing, possession, digital currency, land plot, money
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Andrey Rybalov Iura in re: numerus clausus vs numerus apertus
The article considers different views on the list of property rights in various legal systems. Some of them adhere to the numerus clausus principle whilst others prefer to see their list opened. Although numerus clausus is a traditional approach to a list of proprietary rights and is even thought of as their essential feature, the article shows that certain national legal systems take a different path. It challenges some arguments in support the numerus clausus principle and draws attention to the discussions on the list of property rights in the modern private law scholarship. It is submitted that one should also consider what way is to be taken by property law and registration system in Russia. The article argues that any burdens on the right of ownership should be registered.
Keywords: numerus clausus, numerus apertus, property rights, registration of property rights
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Vladislav Starzhenetskiy Parallel Imports in Russia: Differentiation or Erosion of Liability for IP Rights’ Infringements?
Commentary to the Ruling of the Constitutional Court of the Russian Federation No. 8-П, 13 February 2018 On February 13, 2018, the Constitutional Court of the Russian Federation declared judgment No. 8-П «On Constitutionality of the Provisions of paragraph 4 of Article 1252, Article 1487 and paragraphs 1, 2 and 4 of Article 1515 of the Civil Code of the Russian Federation in connection with complaint of the limited liability company «PAG», which in many respects is crucial for parallel importers operating on the Russian market. In addition to the question of the constitutionality of parallel imports per se, the Constitutional Court of the Russian Federation touched on several other very important legal topics, including abuse of exclusive rights, individualization of liability for IP infringements, and expressed its attitude towards sanctions imposed by foreign states against Russia. The Constitutional Court confirmed that national exhaustion rule prescribed by the Civil Code of the Russian Federation is not contrary to the Constitution. However, courts must differentiate civil liability when they deal with counterfeited goods and parallel imports due to the fact that parallel importation does not represent equal threat to the right holders compared to counterfeiting. Moreover, it was stressed that in cases of abuse of rights, bad faith behavior or refusal to supply goods to Russia because of compliance with sanctions regime against Russia courts are authorized to deny claims of the right holders to prevent parallel imports.
Keywords: parallel imports, exhaustion of IP rights, civil liability, abuse of rights, economic sanctions
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Philipp Trambitskiy Survey of Court Practice on Challenging Voidable Decisions of Meetings according to Article 181.4 of the Civil Code of Russia
The survey focuses on the main trends in the practice of challenging voidable decisions of meetings. The article provides detailed account of the court practice relating to procedural violations in convening, preparing and conducting of a meeting, violation of the rules concerning minutes of a meeting. The author tries to find a threshold after which those violations become material. The problems of the subsequent confirmation of a voidable decision and application of limitation periods in such cases are also considered.
Keywords: decisions of meetings, void transactions
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