Журнал ЗАКОН

Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 305-ЭС17-21628, 18 May 2018 in the Light of Decision of the RF Constitutional Court No. 36-П, 15 July 2020 The article analyses judicial practice on compensation for harm caused by wrongful administrative compulsion. It focuses on two judgments of the Supreme Court and the Constitutional Court. These decisions determine the grounds for compensation of damages and in particular consider the question whether the state should be liable when administrative liability proceedings are discontinued due to lack of corpus delicti. The author critically examines the prevailing approach in judicial practice, reveals a tendency for a transition to a stricter understanding of state responsibility in this area, and proposes directions for improving legal regulation and law enforcement in the analysed category of cases.

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Keywords: compensation of damage, administrative liability, rehabilitation, state liability, tort

Commentary on the Judgment of the Constitutional Court of the Russian Federation on the Constitutionality of Article 234(1) of the Civil Code of the Russian Federation due to the Complaint of Citizen V.V. Volkov, dated 26 November 2020, No. 48-П The judgment of the Constitutional court of the Russian Federation No. 48-П, dated 26 November 2020, can signify a turning point in the practice of usucapio, allowing for the first time in Russia usucapio without good faith in the usual sense. Although some reasons for this decision give rise to criticism, in general, its practical significance should be supported.

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Keywords: usucapio, good faith

Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 310-ЭС20-6179, 8 October 2020 The article presents a critical assessment of the position of the Chamber for Economic Disputes of the RF SC formulated in the judgment dated 8 October 2020 No. 310-ЭС20-6179 concerning the possibility of establishing a natural (non-monetary) form of rent in a lease of publicly owned land. An alternative model of qualification of agreements containing such terms is also offered for similar disputes in the future.

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Keywords: lease, rent, freedom of contract, investment agreements, real property

The paper is about the netting (balance) concept. The author analyses and criticises existing views on legal nature of the concept. According to the article netting is not just an offset or another legal transaction but not a legal fact at all. There are several key precedents of Supreme Court of Russia Federation under the author’s view where differences between netting and other grounds for termination of obligations (deal, performance) are set out. It is argued that main area for netting is avoidance of unjust enrichment when the contract is not terminated. But netting can be a result of a special contract. There is a demarcation line between termination agreement (or ‘automatic offset’, as it is sometimes called) and netting.

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Keywords: legal facts, netting (balance), termination of obligation, unjust enrichment, offset

For the first time, a Russian translation and a detailed article-by-article commentary on Title I, ‘On Obligations in General’ (articles 1173–1320) of Book Four of the Italian Civil Code in force (as at 31 December 2020), adopted in 1942, is published. This title is essentially the General Part of Italian law of obligations. This issue publishes the third and fourth chapters of the Title: ‘On the Non-Performance of Obligations’ and ‘On Means of Terminating Obligations Other than Performance’. Part 1 (chapters I and II) is published in The Herald of Economic Justice of the Russian Federation No. 1 for 2021.

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Keywords: Italian Civil Code, Codice civile italiano, law of obligations, obbligazioni, non-performance of obligations, inadempimento delle obbligazioni, debitor’s delay, mora del debitore, contractual liability, responsabilità contrattuale

Musical works are becoming more and more popular these days and they are moving into digital sphere: a lot of devices can now play music, there are various ways to share music pieces. The only natural reaction is to protect the rights of the authors. However, one should not forget about equitable rights given to the society at large – it is important to ensure that there is an adequate balance of interests guaranteed by exceptions and limitations to copyright. The article consistently examines various copyright exceptions like private copying, educational exceptions, quotation, illustration, parody, exceptions for libraries, performance during ceremonies and some other exceptions in their application specifically to musical works. The purpose of the article is to systemise copyright exceptions to musical works in the law of Russia and Germany. Although it is impossible to create a fine system from the general to the specific, using a comparative method this article provides for some criteria for classification of the copyright exceptions in the sphere. As a result, the article indicates some problems of modern Russian regulation including the test for public performance, usefulness of economic reasoning while proving the impossibility of use, unnecessarily strict norms concerning sheet music, chaotic exceptions in the educational sphere, difficulties with the splitting parody regime etc. These findings may be used in the process of improvement of Russian legislation.

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Keywords: copyright, musical work, copyright exceptions, copyright limitations, illustration, quotation, parody

The second part of the court practice review examines some issues connected with restoration of a participant’s corporate rights, analyses court practice on the problem of contesting a participant’s withdrawal from a limited liability company and critically evaluates the practice of discounting of minority interests upon payment of the actual share value.

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Keywords: limited liability company, withdrawal from a limited liability company, real share value, minority shareholders