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ARCHIVE FOR 2011    RUSSIAN

Ноябрь 2011

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

B.A. Musin A law’s substance is seen through its real-life enforcement
Valery Abramovich MUSIN, Head of the Civil Procedure Department of the Law Faculty in the St. Petersburg State University, responds to the questions of the LAW magazine’s associate editor-in-chief, Vladimir Bagaev
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The Event. Comments of the Experts

Uniform Qualifying Examination for lawyers
On October 12, 2011, on a regular meeting of the Association of Lawyers of Russia, Igor Manylov, Chairman of the Board of the ALR, stated the need for introduction in Russia of a uniform qualifying examination for lawyers. The examination’s concept is to be prepared by late 2011. There are discussions for introduction of a voluntary professional exam, as well as an obligatory one for lawyers whose activity consists in assisting people in legal matters. We asked our experts to assess this idea. Which approach to testing legal proficiency is optimal for Russia? Can a uniform qualification examination improve the quality of legal assistance in Russia?

 

Topic of the issue

B.A. Belov A promissory note can be useful for Russian business, particularly as a next step of its becoming more civilized
Vadim Anatolievich BELOV, Doctor of Law, Professor of the Commercial Law Department of the Law Faculty in the M.V. Lomonosov Moscow State University answers the questions of the LAW magazine’s associate editor-in-chief, Vladimir Bagaev
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A.A. Vishnevsky Holders of the bills of exchange: similarities in English and Geneva systems of the law of bills of exchange and promissory notes
The article asserts the existence of different types of holders of the bills (notes) in the Russian law, differing from each other by the scope of their rights and the estoppels possible against them. The topic is considered from a comparative law approach.
Keywords: bill of exchange, rights of the holder of a bill (note), estoppels against the holder of a bill (note)
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V.V. Grachev Offset of notes
The article treats the problems regarding of unilateral offset of note liabilities. The author considers positive and negative background of offset, characterizes an offset as a reversible transaction.
Keywords: promissory note, note claim, offset, transaction
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V.Ya. Rikhterman, O.I. Koyda. Several aspects regarding calculation and collection of note interests and fines
Despite the fact that the modern exchange law has been applied for a considerably long period of time, and many questions arising in the course of the promissory notes’ business circulation have already been addressed in one way or other both in theory and in practice, there are a number of issues remaining still relevant. In this article, the authors examine certain controversial aspects related to the procedure for calculation and collection of note interests and fines.
Keywords: promissory note, note interests and fines, delay of note drawer, delay of note holder.
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Discussion Board

G.P. Chernyshov Change or definition of a practice for application of a law as a basis for review of effective judicial acts
Established by the resolution of the plenary session of the Supreme Commercial Court of the Russian Federation, the institution for review of judicial acts based on newly discovered (now – new) circumstances underwent over a relatively short period of its existence in our law a very interesting transformation, received numerous amendments, and created many problems in the practice of law enforcement. This article is dedicated to evolution and contemporary state of the judicial practice in this respect.
Keywords: precedent, Supreme Commercial Court of the Russian Federation, review based on new circumstances, judicial practice.
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Judicial practice. Comments

B.R. Karabelnikov Abuse of a right cannot serve a basis for filing a claim
Satisfaction of a claim to consider transactions void (or invalid) with the reference to Art. 10 the Civil Code of the Russian Federation cause serious concerns. According to the authors, filing of such claims is a sign of the bad faith of plaintiffs, and their satisfaction by Russian courts – a sign of considerable problems in the law enforcement. Such a practice does not conform to the place and role of this article in the system of norms in the general section of the Civil Code.
Keywords: abuse of a right, void transaction, good faith in the civil law.
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Theory and practice

A.P. Sergeev, T.A. Tereschenko Civil legal consequences of cancellation of a mining license
Using an example of cancellation of a mining license, this article proves inadmissibility to determine as void the non-normative acts of the consequences set forth by the law for void transactions, including inapplicability of the limitation period.
Keywords: licensing, mining, cancellation of a license, Subsoil law of the Russian Federation
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A.S. Selivanovsky, M.E. Selivanovskaya. Transition from licensing to the self-regulation
The article treats the aspects related to introduction of obligatory membership in a self-regulated organization instead of obtaining a license in an authorized state body. There is a comparative analysis of advantages and disadvantages of the self-regulation in comparison to the licensing.
Keywords: self-regulated organization, business entities, consumers’ interests, conflict of interest, compensation funds.
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A.V. Ilyin. Application of the limitation of action by a court of law
The court of law’s authority regarding application of the limitation of action due to the nature of this institution is based on the very essence of the judicial authority, and not declaration of a will of the parties to a dispute. Based on this, the author proves that it is necessary to provide a court of law with a right to apply ex officio the consequences of the omission of the limitation of action.
Keywords: limitation of action, right of claim, right to legal aid.
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V.A. Savinykh. Termination of joint obligations
The author analyzes from the standpoint of different approaches to the nature of joint obligations, how application of certain approaches to termination of the obligations influences and transforms the joint obligations.
Keywords: joint obligations, approaches to termination of the obligations, concepts of joint obligations.
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A.K. Bayramkulov. Legal instruments for forced redemption of stock from minority shareholders
The article constitutes an attempt made by the author to comprehend legal mechanics for redemption of stock from minority shareholders (squeeze-out rule) through a prism of law-enforcement practice with consideration of foreign experience.
Keywords: forced redemption of stock, squeeze-out, protection minority shareholders’ rights.
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T.V. Ovcharenko. The role of a court of law in reconciliation of the subjects to a disputed legal relation
The article is dedicated to the problems of a court of law’s encouragement of peaceful settlement of disputes. The author denies a possible combination of responsibilities as a judge and conciliator. A need is proved for establishment of a system of steps supporting peaceful settlement of disputes.
Keywords: court of law, peaceful settlement of disputes, amicable agreement, mediation.
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I.V. Popov Initial contractual obligations vs. obligations for reimbursement of damages due to non-fulfillment or improper fulfillment of a contract
The article researches the structure of obligations in case of violation of a contract. According to the article’s author, simultaneously, there are both initial obligations and obligations regarding reimbursement of damages incurred due to a contract’s violation. Such an approach provides a right to recover damages within a procedure determined by a law or a contract. The article contains an analysis of relationship between an original obligation and the obligation regarding recovery of damages incurred by a contract’s violation.
Keywords: obligation, damages, improper fulfillment of a contract
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Foreign experience

A.Y. Medvedev Absolute liability of a legal entity as a principle: history of the question in the English law
Tracing the evolution of an English corporation’s liability, the author arrives at a conclusion that limited nature of liability was not originally treated as an inherent consequence of a corporation’s property isolation. The article contains a brief analysis of the discussion accompanying legislative establishment of limited liability. According to the researcher, the limited liability of a legal entity even at the present is to be a subject of a separate discussion to confirm the need to preserve or change the general rule.
Keywords: legal entities, liability of a legal entity, limited liability, bankruptcy, competition of jurisdictions, reform of civil legislation.
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Actual classic