ARCHIVE FOR 2011 RUSSIAN
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Март 2011
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Expert assessment of legal acts: law or policy? The idea to carry out public expertise of resonant cases expressed by the retired judge of the Constitution Court T.G. Morschakova was ambiguously perceived by lawyers. Many saw in that initiative encroachment of provisions of the Constitution guaranteeing independence of judges. The Chairman of the Constitution Court V.D. Zorkin supported the initiative noting that powers of judges are closely linked to their responsibility which supposes subordination to the public. We asked our experts to express their opinions on both the necessity of public control over resonant cases and on the form of such control.
Super professional
Topic of the issue
R.N. Kurmaev To the problem of responsibility of management bodies of business entities The problem of indemnification of losses caused to a company by guilty actions of the management is conditioned by insufficient efficiency of norms applicable in this area. Assessing the court practice on such cases, the author studies the issues of proving of guiltiness, amount of losses justifying the argument on advisability to pass the burden of proof of fairness and reasonability of actions of the management to the management of the company.
Keywords:
responsibility of management bodies of a legal entity, liability of the management, guiltiness, unfairness, reasonable risks, losses of the company
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G.K. Smirnov Basic lines of development of criminal legislation in the area of protection of corporate relations Under the present conditions, the criminal law remains the one which is the least reformed and adopted to the established system of corporate relations. At the same time, this law is designed to protect these relations against the most dangerous social phenomena. This article analyzes amendments recently introduced into criminal laws in the area of corporate relations, determines tendencies of its development as well as the essential directions of further improvement.
Keywords:
corporate relations, criminal policy, crimes in the area of corporate relations, repression of the criminal law, humanization of the criminal law, criminal liability of legal entities, investment protection
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M.I. Grigoryev Legal consequences of violation of corporate agreements under Russian law The author considers problems of application of measures of civil legal liability in case of non-observance of shareholder agreements and contracts on exercise of rights of members of Limited Liability Companies. The article covers the practice and perspectives of application to shareholder (member) agreements of such measures as enforcement of fulfillment of an obligation in kind, indemnification of losses, compensation, penalties.
Keywords:
shareholder agreement, contract on exercise of members’ rights, agreement of members, corporate contract, measures of civil legal liability
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A.E. Molotnikov Corporate liability: tendencies and perspectives The article touches upon perspectives of change of the institute of corporate responsibility, causes of such initiatives as well as probable efficiency of new legal provisions. Special attention is paid to practical problems faced by participants of corporate relations as well as legal novelties proposed in the draft amendment to the Civil Code of the RF.
Keywords:
corporation, corporate relations, corporate responsibility, shareholder responsibility, responsibility of the holding company, responsibility of members of management bodies
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Chairman of a court
Theory and practice
V.M. Sherstyuk Minutes of the court session at the arbitration court of the first instance The work considers the meaning of the minutes of the legal session and requirements thereto; assesses advantages and disadvantages of amendments and supplements introduced into article 155 of the CAP of RF by Federal Law dated 27.07.2010 No. 228-FZ, legal consequences thereof. Suggestions on minuting improvement at the arbitration court of the first instance are made.
Keywords:
minutes, minuting, audio recording appliances, judge, secretary, instance of appeals and cassation
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A.S. Vlasova The presumption of fairness in disputes resulting from the corporate relations The article describes particularities of application of the presumption of fairness in corporate disputes. On the basis of the analysis of the theory of law and practice of law application the author justifies inadmissibility of confusion of the presumption of fairness and the principle of fairness and fairness requirement.
Keywords:
fairness, presumption of fairness, principle of fairness, requirement of fairness, corporate disputes
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A.E. Popov Particularities of takeover of Russian companies with American shareholders Methods of protection of rights granted to shareholders should be equal. However, this principle is not observed at takeover of Russian companies having American shareholders since American investors are subject to both Russian and US laws. The article considers related theoretical and practical problems.
Keywords:
acquisitions, methods of protection of shareholder rights, Williams Law, tender offer
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D.V. Ivanova Problems of the legal regime of unauthorized construction Deliberate construction as a legal phenomenon may be presented in various aspects: as a thing, legal violation and sometimes as a method of acquisition of the ownership right. Correct qualification and clear separation of types of legal violations admitted at erection of a building determine the decision of problems of objectiveness of results of deliberate construction operations.
Keywords:
unauthorized construction, object of civil rights, creation of the ownership right
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M.L. Krasnobaeva Rights of the seller for the goods not paid up by the purchaser The author considers the right of the seller to require return of the goods not paid up by the purchaser. This matter has become especially topical recently becoming the subject of discussions at the SAC and SC of the RF in the joint Resolution of the Plenums “On certain issues of the practice of dispute settlement associated with protection of ownership and other property rights”.
Keywords:
sale on credit, the right for return of the goods, unjustified enrichment
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K.B. Koraev Confluence of lenders’ rights as an insolvency condition The author believes that confluence of lenders’ rights is one of the material signs evidencing insolvency in the legal meaning and requiring application of the bankruptcy law. Absence of such a condition in the effective laws evidences on deficiencies in legal regulation thereof.
Keywords:
insolvency, bankruptcy, confluence of lenders’ rights
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E.I. Sycheva The agreement on jurisdiction in arbitration proceedings The article analyzes positions of Russian scientists as regard to relation of agreements on jurisdiction to matters of the substantive law and procedural law (taking into account foreign laws). The subject-matter and form of this type of agreements are described.
Keywords:
agreement on jurisdiction, relations under substantive law, agreements under procedural law, contractual jurisdiction, written form, subject-matter of the agreement
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A.A. Arkhipov Periods of limitation in the tax law The author considers particularities of legal regulation of periods of limitation in the tax law, analyzes legal positions of superior court instances and practice of arbitration courts, compares effective norms of the Tax Code of the RF and norms which became ineffective, reveals advantages and disadvantages of legal novelties.
Keywords:
period of limitation, counting of a tern, preclusiveness, bringing to liability, collection of penalties
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Foreign experience
I.R. Medvedev Interrogatory in the civil procedure of the USA: execution and formalization The article touches upon particularities of execution and formalization of an interrogatory (written questioning of parties). Having analyzed court acts resolving the problem of limitation of the number of questions in the interrogatory and defining the term “sub-questions”; summarizes cases of excess of the number of questions; covers the discussion on counting of questions at procedural complicity.
Keywords:
legal proceedings, US law, interrogatory, execution of interrogatory, interrogatory structurei
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Actual classic
