Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
I.V. Reshetnikova, E.A. Tsaregorodtseva Enforcement: Deadline for Voluntary Execution, Enforcement Fees and Representation Expenses
The article deals with three aspects of enforcement proceedings,
namely: the deadline for voluntary execution, the nature
of enforcement fees, and representation expenses through
the prism of Russian case law and legislation. The analysis
concentrates on the compatibility of the legal nature of
the compliance period and the compulsoriness of enforcement
proceedings as well as the essence of enforcement fees
and recovery of the legal representative´s costs in enforcement
proceedings under the rules for allocating legal costs.
case law, enforcement proceedings, voluntary execution, enforcement fees, representation expenses
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M.L. Galperin Are There Any Boundaries of the Debtor’s Liability in the Enforcement Procedure?
The author analyses the limits of enforcement with regard to
the debtor in the enforcement procedure, taking into account
the inadmissibility of ambiguously long and disproportionate
state actions against the debtor (including liability measures).
Defining the limits of enforcement, it is assumed that in
the enforcement procedure the debtor opposes the creditor,
rather than the state represented by the bailiff. It means that
enforcement is to be applied not in some abstract public
interests, but as a rule, in the interests of other private person
holding the enforcement document issued in his/her name.
The substantive boundaries of enforcement of subjective
rights define their procedural limits in the enforcement
procedure. Consequently, in order to balance the interests of
the parties concerned and the state, the liability measures
imposed on the debtor in the enforcement procedure are to
be differentiated taking into account the nature of the writ of
execution and the fair distribution of non-performance risks
between the debtor and creditor.
enforcement procedure, balance of interests, liability
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M.A. Erokhova Private Bailiffs in Russian Law Enforcement
This article offers reflection on whether private sector bailiffs
can be introduced for law enforcement in Russia. The first part
explains the rationale behind private enforcement in the Russian
market. The second part centres on what powers can
be delegated. And the author concludes that private bailiffs
can assume any functions currently discharged by public sector
enforcement officers in Russia, except for the authority
to impose public liability for the debtor’s failure to comply
with court orders.
enforcement of judgments, effectiveness of enforcement, private bailiffs
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V.V. Yarkov Non-Budgetary (Private) Model of Enforcement: Operational Scope
The article is devoted to the examination of approaches for
classification of the main global enforcement systems and
the court officer’s status. The author analyses characteristics
of enforcement proceedings and enforcement officer’s
status in Russia. Moreover, the author assesses the potential
effectiveness of domestic implementation of diverse
enforcement models. To improve enforcement effectiveness,
the author suggests and substantiates the reinstitution of
the model of material incentives for enforcement officers, which
was used in the Soviet period and up until 2005 in Russia.
court officer, classification of enforcement systems, enforcement effectiveness, non-budgetary system of enforcement
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E.N. Kuznetsov French Model of Enforcement: New Realities
The article examines the functioning of modern French enforcement
process. It analyses the interaction and application
of national and European laws in the field of voluntary
compliance and compulsory enforcement. Some conclusions
are drawn about concrete directions for the development of
enforcement procedures in modern conditions.
power to enforce, judicial protection, enforcement, execution, strategic cases, french model of enforcement
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A.V. Teslenko Criminal Code — a Tool of Repression or a Safeguard for Bona Fide Entrepreneurs?
The article touches upon the law enforcement issues under
the provisions of Chapter 22 of the Russian Criminal Code.
Referring to the works of Russian jurists, as well as to the judicial
practice, the author states the need for a comprehensive
“revision” of economic crimes. Such a revision should include
de-criminalisation of certain offences along with removal of
inconsistencies between criminal and sector-specific provisions.
Further, the author points out the need to provide for
national economic security, economic freedom and competition
promotion in the text of the criminal law, which is one of
the tasks the Russian Criminal Code should focus on.
economic crimes, chapter 22 of Russian Criminal Code, tasks of Russian Criminal Code, restriction of competition
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S.Yu. Filippova Is Law a Price List or a Textbook? Revisiting the Purpose of Private Law
This article revisits the purpose of private law and contrasts
the instrumental approach (sociological analysis of law)
with the trade theory of law elaborated in legal literature.
The author concludes that the operation of private law is
fundamentally distinct from that of public law because private
law influences behaviour of its entities by teaching how best
to overcome conflicts and complications in interactions
between them. The article takes a critical look at the idea
of considering objective law to be a price list setting rates
for rights and breaches. Rather, law should serve as a tool
that assists private law entities in their communications
and provides opportunities driven by the legal authority of
the State, public trust in government, and scientific research
as part of the legislation governing private relations based on
the studies of typical conflicts.
instrumental approach, trade theory of law, civil law, science of civil law, private law, sociological analysis of law
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Theory and practice
G.V. Tsepov A Contractual Approach to Corporation’s Right to Set Rates and Procedure for Property Contributions
Corporations are empowered to set the amount and the procedure
for making property contributions by their members.
Therefore, corporate bodies are given an opportunity to affect
personal property of corporation members, which conflicts
with the principles of autonomy of the will, equality, privacy
and inviolability of property. To overcome this contradiction
the author suggests using the methodology of the contractual
theory of the corporation. Without denying corporations their
rights to set the amount and the procedure for making property
contributions, the author comes to a conclusion that these decisions
can only be taken within a “corporate contract”. While
the “corporate contract” is incomplete, a concerned participant
has a right to challenge the decision in court on the grounds
of inconsistency with the purpose and profile of the corporation’s
activities, as well as the principles of equality, reasonableness
and good faith. What is more, in case of taking a binding
decision without the participant’s consent, the participant
has the right to withdraw from the corporation. The obligation
to pay future property contributions should cease upon termination
of membership relations unless otherwise provided in
the agreement between the participant and the corporation.
corporation, property contribution, membership relations, contractual theory of corporation
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A.V. Ilyin Recognition of the Regulatory Legal Act by Court Invalid as the Basis of Revision of the Judicial Act on New Circumstances
The procedure for review of a court order based on
the regulation subsequently declared invalid by court has to
build on the constitutional provisions that restrain retroactive
court orders. Finding a regulation invalid as of its enactment
can be considered as a change in circumstances only in
exceptional cases involving the nature of relations regulated
by the challenged regulation. At the same time invalidation of
the regulation, as soon as the respective judgment enters into
force, can be considered as a ground for review of any court
order issued under that regulation only insofar as it applies
to the person who has succeeded in its invalidation. These
conclusions are fully substantiated by the author.
court assessment of compliance, retroactivity of court orders, review of court orders for change in circumstances
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K.S. Mityagin Theoretical and Practical Aspects of Joint Ownership of Intellectual Property Rights
The article discusses the issues of joint ownership of IP objects,
argues that transactions can involve shares in intellectual
property rights, and examines the theoretical and
practical difficulties with intellectual property transactions.
The author concludes that joint ownership of IP is still fraught
with challenges despite the legal and judicial recognition of
transactions involving shares in the exclusive right. Accordingly,
he formulates legislative proposals that would help
improve the situation.
intellectual property, object of civil law, intellectual rights, share in rights, joint ownership, intellectual property transactions
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T.S. Lyubarskaya, N.S. Lashkov Contemporary Issues in the Law Applicable to the Security Interests in Movable Property in Russia and Abroad
This article explores the conflict of laws rules applicable
to the security interests in movable property and IP rights.
The authors concentrate their research around “pros” and
“cons” of lex rei sitae as a default connecting factor for secured
transactions with movable property. Further, the authors
consider “pros” and “cons” of lex loci protectionis as a default
connecting factor for secured transactions with intellectual
property rights. Other approaches to international regulation
of security interests are also analysed in the article.
pledge, security interest, movable property, intellectual property, conflict of laws, lex rei sitae, lex loci protectionis
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A.A. Kostin International Treaty as the Basis for Recognition and Enforcement of Foreign Judgments (It’s Past, Present and Future)
The article provides a political and legal analysis of the provision
establishing that treaty is a precondition for the recognition
and enforcement of a foreign judgment. The author suggests
that this statutory provision came into existence at the turn of
the nineteenth century and its primary purpose was to ensure
the equality of concessions between states in the field of
justice. It is further noted that the reciprocity provision served
the same purpose as the international treaty and that was
the reason why it spread to legislations of several European
countries (Germany, Romania etc.). As regards the Russian
legal framework, the author discusses the correlation between
existing national legislation and the right to fair trial under
Art. 6 of the European Convention on Human Rights.
recognition and enforcement of foreign judgments; international treaty; international civil procedure
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S.A. Puchkov Moral Damages as an Exceptional Remedy in International Investment Disputes
Moral damages are an exceptional remedy in investment arbitration.
Indeed, the dispute resolution mechanism has developed
to protect economic rather than personal interests. Nevertheless,
in some cases investment tribunals have awarded
moral damages on top of compensation for commercial loss.
These cases include exposure of investors to acts of egregious
behaviour totally unacceptable in a civilised society,
e.g. physical attacks on investors and/or their employees.
Investment jurisprudence dealing with moral damages lacks
uniformity and, therefore, it is impossible to portray a typical
investment case where moral damages are recoverable.
However, certain guidelines can be extracted from the cases
analysed in the article. The article offers practical recommendations
on evaluation of the prospects of success of claims
for moral damages and gives a number of tips on presentation
of evidence and managing the process.
international investment arbitration, moral damages, investor protection
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N.A. Sutormin Class Litigation in the USA: Past And Present
The author analyses historical development of class action
in the USA, main trends in its reform and gives estimation
of its advantages and drawbacks. The author concludes that
class action is an advanced institute of procedural law and its
further modernisation is set to continue. The article contains
the Russian translation of Rule 23 оf the Federal Rules of Civil
class action, group action, multi-party action, class litigation, history of civil procedure law in United States, U.S. Federal Rules of Civil Procedure
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