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ARCHIVE FOR 2018    RUSSIAN

Декабрь 2018

CONTENT

 

 

Chief editor’s column

 

D.A. Medvedev The 25th Anniversary of the Constitution: Balancing Freedom and Responsibility
The article presents an overview of the 25-year history of the Russian Constitution. The author underscores the inviolability of the constitutional principles of upholding the rights and freedoms of citizens which were enshrined in the early 1990s and constitute the ideological foundation of the Fundamental Law, and notes the importance of achieving balance between freedom and responsibility to avoid distortions leading either towards pure liberalism or the interests of citizens being subsumed in the interests of society and the state. Recognising the special role of the courts in upholding the principles of a modern law-based, social and democratic state, the author identifies the key challenges facing the domestic judicial system which go beyond maintaining an independent and strong judicial branch to include fostering an equitable dialogue between national and international justice and protecting the judicial and legal sovereignty of the country. Respect for the rights of citizens is the most important, immutable duty of government, regardless of the country’s membership in a particular international organisation or convention. This is the root of our country’s self-determination and independence.
Keywords: Constitution of the Russian Federation, Fundamental Law, direct effect of the Constitution, nation of laws, protection of the rights and freedoms of citizens, international guarantees of human rights

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

E.A. Sukhanov Property Law Reform Challenges
The author examines the old diseases of domestic property law and establishes lack of progress in delivering a modern system of property rights to ensure the performance of constitutional safeguards in the current legal setting. The system should address the needs of the market, first by specifying a wider list of restricted property rights in the Civil Code. This includes: restoring the corporeal status of building lease, providing protection for possession under civil law, and reforming statutory remedies for property rights. At the same time, reforms should go beyond the scope of the Civil Code to bring amendments to the Land Code, the Urban Development Code, other codified statutes in the area of public law as well as to the standards of property law.
Keywords: property law reforms, restricted property rights, building lease, protection of possession, remedies for property rights
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A.A. Makovskaya Incomplete Civil Code Reform of Property Rights and Mortgages
This paper reviews some aspects of the Civil Code reform focusing on property rights and the conflict between the pledge provisions of the Civil Code and provisions of the Mortgage Law. Though the Code does not provide that mortgage constitutes a property right, the existing mortgage mechanism has already incorporated many of the rules that typically apply to property rights. The author concludes that proper regulation of mortgage relations can now be ensured not so much by mentioning mortgage among property rights in the Civil Code as by ensuring adequate regulations for all the real property rights, primarily land property, and removing inconsistency in mortgage regulation.
Keywords: pledge, mortgage, real property, pawn ticket, tenancy, property rights
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A.O. Rybalov Original Acquisition of Right and Prospects for Limited Property Rights
The original (other than succession-based) acquisition of a real right in the property is supposed to discharge existing easements as succession works only for derivative methods. This approach has been taken on by Russian laws and courts. Yet the limited property right implies that it can be exercised regardless the owner’s actions or the ownership as such. As a result, no matter what type of acquisition (original or derivative) is in question, any easement should remain in place if a buyer was aware or should have been aware of it or vice versa. All departures from this general rule should be made explicitly clear in the law and justified by reasonable objectives rather than tentative constructs.
Keywords: limited property rights, pledge, easement, original acquisition of ownership
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K.I. Sklovskiy Sale of Other Person’s Thing in Sight of Reforming the Civil Code of the Russian Federation
The new version of Chapter 9 of the Civil Code, including the rules on the invalidity of illegal transactions has led to a different mechanism for disputing transactions for the sale of other person’s thing (other person’s right). If other person’s thing is sold, the transaction is void as violating the law prohibiting the sale of another person`s thing and at the same time violating the rights of the owner of the thing (the owner of the property right). Only the owner can claim such a transaction in court. The parties to the transaction for the sale of another person`s thing shall not have the right to claim it, as they have neither the right nor the legitimate interest to be protected. For them, the deal is valid. But the buyer has the right to claim the transaction where he was mistaken about the ownership of the thing to the seller. The author evaluates the impact of reforms on the Civil Code and establishes that apart from eviction (Article 461) the only remedy available to the buyer of other person’s thing or right is to raise a challenge under Articles 178–179 of the Civil Code arguing for delusion or deception with regard to the seller’s ownership.
Keywords: sale of other person’s thing, invalidity of transaction, illegal transaction, right to claim invalidity of transaction, eviction
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M.A. Tserkovnikov Limitation Period for Vindicatory Action
Russian civil law sets an extremely short limitation period for seeking remedies by the owner or any other legitimate proprietor deprived of their possession and its running is affected by quite a few subjective factors. Therefore, one could rightly criticise existing statutory limitations and even suggest making changes to them. The Civil Code reform (draft proposals) seeked to abolish the limitation period for vindication. As a supporting point, the author provides an overview of the relevant French experience. Comprehensive policies are needed to protect the purchasers of government-owned property. Given the economic circumstances in Russia, privatisation results should be secured by supplemental rules for public ownership privatisations, without bringing in the rules on ordinary acquisitive prescription and good-faith acquisition which have been designed for less complex arrangements.
Keywords: limitation period, vindicatory action, good-faith acquisition, acquisitive prescription, re-evaluation of privatisation results
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A.P. Sergeev Section II “Ownership and Other Property Rights” as Applied to Intellectual Property Relations
The question whether individual property law institutes can apply to intellectual property relations has become more common recently. The author’s answer is yes because some gaps in Section IV of the Civil Code can be filled in with the corresponding provisions from Section II as the regulatory mechanisms of ownership and intellectual property are basically the same. More specifically, these include: joint enjoyment of exclusive rights, waiver of exclusive intellectual property rights, denying non-exclusive license holder the opportunity to protect their acquired IP rights against wrongdoing by third parties etc. Nevertheless, it is suggested that statutory analogy should be used for specific points while IP legislation should be further developed to bridge the existing gaps.
Keywords: property law, intellectual property law, statutory analogy, waiver of right, joint enjoyment, protection for exclusive rights holders
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Discussion Board

A.A. Petrov ‘Foolproof’ Self-Restriction of Legislator to Change Some Codes. From Idea to Implementation: Challenges Arising in Cases of Norm Conflicts
In Russia, the Tax Code, the Civil Code, and the Labor Code, are protected from sporadic and spontaneous amendments via certain adopted legal rules, incorporated into the aforementioned codes. The topos of this legal rule is that the introduction of amendments to such codes and suspension, abolition or annulment of their provisions ought to take place by means of separate federal laws and may not be included in the texts of federal laws which amend (suspend, abolish, annul) other legislative acts or have their own subject of regulation. It is a kind of legal self-restraint for federal legislature. By analogy with engineering design it is correct to describe it as a specific self-restraint device — sort of “the foolproof” in lawmaking. However, the legal analysis of modern Russian Tax Code, Civil Code and Labor Code shows contradictions and gaps in legal constructions of this measure. There are no legal consequences for the breach of these foolproof rules by federal legislator as well as by citizens, judges or other enforcers. Moreover, at least this is the fourth time that the Russian federal legislator is breaking such foolproof by passing bad amendments to the Tax Code, Civil Code and Labor Code. It is the reason why the legislative foolproof in question has had no positive influence on Russian law so far.
Keywords: lawmaking, legal writing, code, amendments act, validity of laws, conflict of norms, laws enforcement, legislative foolproof
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Press Release

 

 

Theory and practice

A.A. Rokhlin Challenges of Antitrust Regulation of Transport Infrastructure in Competitive Markets
The article examines the challenges arising in the course of demonopolisation and deregulation of economic activity in special areas traditionally regarded as natural monopolies. The competitive markets developing among the operators of railway rolling stock and stevedores in seaport terminals require a new state policy for price formation that would take account of i.a. the Eurasian Economic Union practice. The issue of price hikes has become the focus of public interest and has entailed a number of cases concerning distortion of the competition by the railway rolling stock’s operators and stevedores. The analysis of these cases reveals that the attempt at price regulation not only discourages the competition but also decreases the investment potential, degrades the transport infrastructure and undermines the value of antitrust legislation.
Keywords: natural monopolists, railway shipping, open wagon market, stevedoring services, transportation regulation, price formation, tariff regulations, competition protection
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P.S. Baryshnikov Determining Admissibility of Settlements in Economic Disputes under Public Law
This article reviews the legislation that has been drafted by the Russian Supreme Court to improve settlement arrangements in public law proceedings. It addresses the following two aspects: (1) public disputes which by nature cannot be settled amicably; and (2) administrative powers for amicable settlement of disputes. It is determined that settlement agreements cannot be used to resolve cases brought against regulations that provide for validity thereof, and there is no need to specify administrative powers for amicable settlement in substantive legislation as they are already stipulated in the Arbitrazh Procedure Code.
Keywords: amicable settlement, public law proceedings, arbirazh proceedings, fact-finding, agreement, disposition principle
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A.F. Voronov The Commissioner for Financial Services Consumers’ Rights and Availability of Justice: Just the Beginning?
This article analyses a correlation between availability of justice and the corresponding provisions of the Federal Law on Commissioner for Financial Services Consumersʼ Rights. It is suggested that the lack of alternatives, the relative complexity and the length of pre-trial procedures may hamper access to effective justice in certain categories of civil cases. It is doubtful whether the manner of ensuring the Commissioner’s operations provides for real independence.
Keywords: civil procedure, mandatory pre-trial dispute settlement procedure, availability of justice, Commissioner for Financial Services Consumers’ Rights
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P.A. Lomakina Joint Obligations of Spouses. Challenges to Proof
The article describes issues which arise in proving that one spouse’s obligation is joint, because all benefits received by the spouse under this obligation were expended on family needs. The author concludes that obligations arising out of entrepreneurial activity should not be automatically excluded form joint obligations. If assets bought by means of an entrepreneurial loan become common property, the obligation should be recognised as a joint one. Moreover, the author notes that the presumption of jointness of all spouses’ obligations is unfair. The spouse seeking to divide an obligation has to prove that all benefits received under this obligation were expended on family needs.
Keywords: joint obligations of spouses, burden of proof, family needs, obligations for benefit of family or community
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K.P. Savryga In Defence of No-Frustration Rule
There is a deep suspicion in Russian academic literature regarding fairness and efficiency of the takeover regime provided for by the joint stock company law. However, one of the most criticised elements of the modern takeover regime is its “no-frustration rule” which sets out a special procedure for certain corporate actions that may impede the takeover. But in contrast to another “controversial” element — freeze- -out, most critics emphasise the meaninglessness of the no- -frustration rule in the Russian corporate market. In this article we will explore conflicts and problems that the no-frustration rule is purported to neutralise and will decide whether or not it is relevant for Russian corporations. Our conclusion is that, despite the fact that concentrated corporate ownership is the main feature of the Russian market, 27% of public corporations still have dispersed ownership and so can benefit from the no-frustration rule.
Keywords: corporate law, takeovers, acquisitions, conflicts of interest, law & economics
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Foreign experience

E.Yu. Vitol Interbudgetary Relations: Financial Grants as Part of Financial Equalisation
The article discusses the problem of financial equalisation in interbudgetary relations through the example of regulation in Germany, Italy, Switzerland and France. The author analyses the process of distribution of financial grants between budgets in different countries depending on the levels of regulation of interbudgetary relations. Special attention is paid to intermunicipal cooperation based on various legal mechanisms. The review shows that these legal systems, regardless of the form of government, apply more or less the same principles and criteria of interbudgetary equalisation depending on the goals pursued by the legislator and country-specific geopolitical characteristics.
Keywords: interbudgetary relations, financial equalisation, interbudgetary equalisation, fiscal transfers, subsidies
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