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ARCHIVE FOR 2012    RUSSIAN

Август 2012

CONTENT

 

 

FROM THE EDITORIAL OFFICE

 

 

INTERVIEW OF THE ISSUE

Bolshova A.K. ‘A Single Law On Pre-Court Dispute Resolution Is Required’
In her interview to the ‘Moskovskiy Yurist (Moscow Lawyer), Alla Konstantinovna Bolshova, ex-chairwoman of the Arbitration Court of Moscow, touched upon the methods with the help of which it would be possible to lessen the load on the judges and enumerated drawbacks of the Law on Mediation.
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BUSINESS CHRONICLES

Bevzenko R.S. How to extra-judicially levy execution in relation to the pledge?
Commentary to the Decree of the RF SCC Presidium of 10.04.2012 No 15085/11
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Pavlov A.A. From which moment the heirs of the share in LLC acquire the right to manage the company?
Commentary to the Decree of the RF SCC Presidium of 27.03.2012 No 12653/11
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Gromov S.A. Is the pledge of the leasing object eligible?
Commentary to the Decree of the RF SCC Presidium of 22.03.2012 No 16533/11
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Karnakov Ya.V. When physical persons can be recognized affiliated?
Commentary to the Decree of the RF SCC Presidium of 22.03.2012 No 14613/11
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Kopylov A.V. How to attain the establishment of servitude?
Commentary to the Decree of the RF SCC Presidium of 28.02.2012 No 11248/11 57
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PROBLEM

Belov V.A. Security Papers Under The Draft Amendments To The Civil Code Of The Russian Federation
In April 2012 the RF President introduced to the State Duma a draft amendment to the RF Civil Code. Among rather curious amendments the author quotes extensive innovations in the securities’ regulation. The author comes to the conclusion that the subdivision of the securities’ institute into certificated securities and uncertificated securities is exceedingly disputable, and the issues of the protection of the securities’ owners remain unresolved.
Keywords: security papers, uncertificated securities, former legalization, securities to bearer, order and registered securities; share register; restoration of rights for the lost securities; improvement of the RF Civil Code
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PRIVATE LOOK

Kurbatov A.Ya. Transactions With Securities In Banking Operations
The article is dedicated to the study of the issue of participation of the banks and other credit institutions in the securities market. Analyzing the judicial personality of credit institutions the author comes to the conclusion that the formal impossibility to carry out certain transactions with securities by non-banking credit organizations contradicts the essence of their operations. Also the article provides differentiation between securities, payment instruments and informational documents of credit organizations.
Keywords: bank, credit organization, security papers, saving book, certificate, payment instrument
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Selivanovskiy A.S. Some Problems Of Securities Trust Management
The article is devoted to the study of the institute of the custodian’s responsibility in the securities market. In the article it is noted that the current existing statutory regulation of this institute does not correspond to the needs of the economic turnover and is in need of changing. The author suggests, in particular, to determine de jure positive duties of the securities’ manager, as well as to reject the classical understanding of indemnification.
Keywords: discretionary (trust) management, securities, responsibility, manager’s duty, losses
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Grachev V.V. On The Promissory Note Capacity For Legal Relations Under The Russian Legislation
The article gives a definition of the promissory note capacity for legal relations, of promissory note dispositive legal capacity and articulates the concept of a promissory note capability as a pre-requisite to a person’s participation in promissory note legal relations. The author reviews types of promissory note capacity for legal relations and characterizes the capability of each person at civil law to be a participant of a promissory note liability.
Keywords: promissory note, promissory note capacity for legal relations, promissory note capability, promissory note legal relations, promissory note liabilities
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Vasilyeva T.V. Some Procedural Matters Of Investigation By An Arbitration Court On Early Termination Of Legal Protection Of A Trade Mark Due To Its Non-Use.
The article tackles the issue on proper defendants in disputes about early termination of legal protection of a trade mark, as well as the peculiarities of notification of a foreign possessor of the right for the trademark. The author thinks that the possessor of the right for the trademark should be brought up as a defendant, not Rospatent. In the disputes with participation of foreign persons the author recommends to plaintiffs to attach to the complaint an abstract from the foreign state trade register.
Keywords: Key words: trademark, termination of legal protection, Rospatent, proper defendant
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Aleynikova V.V. Civil Responsibility Of Business Associations’ Executive Bodies: Experience Of England And Russia
The article reviews topical issues from the point of view of theory and practice, which relate to the civil responsibility of sole executive bodies of business associations in accordance with the provisions of British and Russian legal orders. The author investigates the character of the legal bonds between a legal person and the body of its management, provides classification of civil law duties of sole executive bodies and members of collective executive bodies of business associations, and interprets the contents of each duty (responsibility) within the framework of the classification group.
Keywords: conscientiousness, reasonableness, prudence, faithfulness, fiduciary duties, act in the company’s interests
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Fedorov S.I. Possibilities And Legal Consequences Of The Participation Of Third Parties In Business Associations’ Management
The author investigates the participation of third parties in shareholders’ agreement; the transfer of the powers from the sole executive bode of a business association to the managing organization or manager; the attraction of employees to the corporate administration of affairs, granted in Anglo-Saxon and continental-European juridical families; also their comparative characteristics are provided. Special attention is paid to both planned alterations in the civil legislation related to the problem under review, and to the already adopted Federal Law of 03.12.2011 No 380-FZ ‘On Economic Partnerships’.
Keywords: corporate management, third parties, legal person, shareholders’ agreement, transfer of the right of a sole executive body, management agreement, supervisory board, economic partnership, simplified joint stock company
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Gorbik K.Ye., Statsenko A.A. Will The Simplification Make It Simpler? Problems And Their Solutions
The article tackles the problems related to simplification of the order of proceedings in arbitration courts. Among positive characteristics of the latest changes in the RF APC, related to the simplified procedures, the author mentions the necessity of the parties’ consent for the use of this procedure and the possibility of a transfer from a simplified procedure to a normal one. The author suggests establishing a special order of countermand of judicial acts adopted within the framework of the simplified procedure.
Keywords: incontrovertibility of demands, admission of the claim by the defendant, insignificant amount of the claim, groups of cases, investigated in accordance with the simplified procedure.
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Polonskaya K.D. Certain Issues Of Application Of The Salini Test By ICSID Tribunals During Definition Of The Investments’ Concept
The article studies the practice of investigation of investment disputes by tribunals of the International Center for Settlement of Investment Disputes where the main problem is the definition of an ‘investment’ concept. In order to resolve this problem in the tribunal practice the Salini test was developed, though its application is ambiguous.
Keywords: investments, Salini test, the International Center for Settlement of Investment Disputes, transaction
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Trubinova Ye.I. The Problems Of Recognition Of The Action For The State Registration Of A Trademark As An Act Of Unfair Competition
The interrelationship of the right for the trademark and the right for protection from unfair competition is an under-investigated problem, but it requires a doctrinal solution. The article id dedicated to the analysis of the judicial practice and the practice of Federal Antimonopoly Service, to identification of main and optional characteristics of unfair competition during submission of an application for the state registration of a trademark.
Keywords: unfair competition, trademark, cancelling of legal protection, state registration, FAS, Rospatent
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Levina D.A. Initial Impossibility Of Execution In An Obligation
The article investigates main points of view on the consequences of the initial impossibility of an obligation execution. The author comes to the conclusion that the most justified model is the model under which the initial impossibility of an obligation execution does not entail the nullity of an agreement.
Keywords: obligation, impossibility of execution, invalidity of a legal transaction
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ASSOCIATION OF LAWYERS OF RUSSIA

 

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