Журнал ЗАКОН

Genrich Pavlovich PADVA, managing partner, Padva & Partners, Attorneys at Law, answers the questions of Yan Piskunov, editor-in-chief of the ‘ZAKON (‘Law’) magazine.

The RF Constitutional Court has come to the conclusion about inconsistency to the Constitutional Law of the Civil Code provisions, dedicated to restriction of legal capacity of physical persons, since its norms ‘do not envisage the possibility of differentiation of civil law consequences in case a person has got diminution of cerebral competence, during resolving of the issue on recognizing the citizen to lack dispositive legal capacity, proportional to the level of factual impairment in ability to understand the effect of his/her actions or to direct them.’ Before the end of the year the law-maker must bring the current legislation in line with the international practice. Evidently, the alterations should be introduced into the draft RF CC. The position of the Constitutional Court was received by representatives of governmental authorities without too much excitement. In their opinion, the courts will be overwhelmed with applications on recognizing limited dispositive legal capacity of mentally-ill citizens. Besides, concerns are voiced that the mechanism of identifying the citizen’s mental condition and restriction of his/her legal capacity will be too complicated. Do you share these concerns?

International juridical assistance during the epoch of globalizations assumes special significance both in the relations among participants of economic contacts and in personal family relations, complicated by an international element. At the same time its format, promptness and the order of its granting depend in no small measure on the object of the assistance and the contents of the national legislation of the states that participate in its granting. The authors analyze the abovementioned factors in the context of effectiveness of current international treaties on international juridical assistance between Russian and CIS countries, as well as EU. Besides, the reasons are identified that impede the conclusion of new treaties in this sphere.

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Keywords: international juridical assistance, civil litigation, court orders, execution of judgment, European Union, CIS, Minsk Convention, international treaties, reciprocity principle

The article is devoted to the problems related to proper judicial summons of foreign participants in a civil litigation. The author analyses main ways of notification on the basis of the Hague convention of 1965 and comes to the conclusion about the only legal way of a service of notice in Russia – through a central authority.

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Keywords: judicial summons, international civil litigation, judicial summons of the process’ foreign participants, the Hague convention of 1965

Video-conference-communication is a new incentive to change and improve the existing mechanisms of granting international juridical assistance. This article serves to throw light at the tendencies which can be traced at the international level and in the practice of foreign states in the application of video-conference-communication during consideration of cross-boarder judicial disputes.

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Keywords: Video-conference-communication, international juridical assistance, the Hague convention of 1970, obtaining of evidence abroad, cross-boarder judicial court proceedings

The article throws light at practical problems arising during apostilization of official documents and legalization of private-law documents, including the requirements for apostille, grounds for its annulment, control limits of law-enforcement authorities over the apostilled documents. Separately an issue on the mode of legalization of foreign arbitration awards is tackled.

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Keywords: apostille, legalization, foreign documents, apostilization, the Hague convention of 1961

The article is dedicated to one of the topical issues of an international civil litigation – competence of national courts in hearing of cases with participation of foreigners (international jurisdiction), which, in the author’s point of view, in its nature is a positive special pre-requisite of the right to litigate. On the basis of the research of the norms of international and national law and court practice the author determines consequences of non-compliance with the international jurisdiction rules, and identifies the interrelation of this pre-requisite and certain circumstances, such as the lack of the international legal judgment that has come into legal force and that has been awarded for the similar dispute, and the lack in an international court of a litigation between the same parties and in relation to the same subject and on the same grounds.

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Keywords: international jurisdiction, the right to litigate, access to justice, legal judgment of an international court, cases with participation of foreigners, lis alibi pendens

The author critically comments on the positions of RF SCC and the RF Constitutional Court in the sphere of providing access of shareholders (LLC participants) to information from the point of view of observing the balance of interests between business associations and their participants.

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Keywords: joint stock companies, limited liability companies, business associations’ participants, shareholders’ rights, the right for information

Following the results of an electronic auction a health care institution concluded a government contract which envisages the supply of several types of pharmaceutical products. In the process of the contract execution concluded at the price offered by the supplier during the auction, an arithmetic mistake was detected in the calculation of the contract amount: 50 kopeks were lost in price per one unit of one of the product types, i.e. the price quoted during the auction was ‘incorrect’. As a result the total amount of the contract should be increased by 80 Rubles. Can the parties of the government contract, which was concluded following the results of an electronic auction, sign the Supplement Agreement on the change in the contract price and accept new specification with the new contract price?

The article deals with some of the problems arising during the attempts to compensate for harm to persons who became victims of various crimes. If we take the Soviet period as a starting point, then these problems have become more acute, which is conditioned by many factors, and first of all, by the criminal policy correction, its so called ‘humanization’, by disturbance of balance of criminal-legal norms, as well as by principal changes in the organization of criminal sanctions’ execution . To minimize current problems the relevant legislative proposals are justified: on amendment of the draft Federal Law ‘On Victims Of Criminal Offense’, as well the current RF Criminal Code.

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Keywords: protection of victims of criminal offense, compensation for harm from crime, malicious evasion from satisfaction of accounts payable, economic crimes, humanization of criminal responsibility, compensation for harm from fraudulent practices

The article investigates the problems of identifying the jurisdiction of disputes resulting from inter-budget relations. The question is asked, whether such cases should be investigated by arbitration courts or by regular courts or whether they should be investigated during an administrative procedure. The analysis is provided of the judicial-arbitration practice for the mentioned issues in focus, and at the same time subjective criteria are accepted as the basis for the solution selection – the applicants and the defendants are public-law entities in the persons of their authorized bodies.

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Keywords: Jurisdiction, budget system, inter-budget disputes, inter-budget transfers

The legislative, law-enforcement and scientific circles have been lately discussing the necessity and practicability of introduction into the domestic legislation of a category of legal entities of public law. In the article the concept and characteristics of this type of organizations are worded, the issue is investigated on the presence of grounds for introduction of this category into the Russian legal framework, a possible niche of legal entities of public law in the system of the Russian juridical entities is analyzed, and the problems of their classification are considered.

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Keywords: legal entity of public law, government non-budgetary funds, public corporations, public foundations

On the basis of the analysis of international standards for procurement activities, the European Union directives, the legislation of Great Britain, the legislation of the Russian Federation on placement of government order, the article analyses problems related to the requirements presented by the government customer to a participant of the government order placement.

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Keywords: government order, government procurement, state needs, qualification criteria for the participants of the government order placement

The author contemplates the practicability of inclusion into the Russian legal framework of a structure of irrevocable authorization in case of voluntary representation, theoretical and practical admissibility of this structure and analyzes the approach of foreign legal orders to irrevocable authorization.

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Keywords: voluntary representation, irrevocable authorization, indirect representation, a representative

On the basis of the analysis of a practical situation the problems of legal qualification of a deal aimed at the alienation of a share in the authorized capital of a limited liability company are reviewed. The conclusion is made that such a deal is the first statutory attempt in the Russian law to introduce the concept of a regulatory deal, which in its essence is an artificial instrument, a phantom of a deal, and in this case – also the phantom of the transfer of the right.

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Keywords: limited liability company, alienation of a share, regulatory deal, phantom, ‘right for right’

The article is dedicated to the research of the history of origin and development of unauthorized construction norms in Russia. The author provides the analysis of the process of formation of norms on unauthorized buildings and the building leasehold from the times of legislative acts of the centralized Russian state in XV—XVII centuries and until present moment. The article assesses the draft amendments to the RF Civil Code with regard to modernization of unauthorized construction norms and re-incarnation of the building leasehold institute.

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Keywords: unauthorized building, unauthorized construction, building leasehold, superficies, draft amendments to the RF Civil Code

Critical review for the book by M. Norros ‘Judicial Cooperation in Civil Matters with Russia and Methods of Evaluation’

Extant documents of a judicial examination in relation to the pledge of the real landed estate, when a part to the case was A. Palitsyn, a famous Russian figure of the Time of Troubles (the Smuta), could be of interests for studying the history of the domestic civil law, and first of all for the research of the history of the lien development.

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Keywords: antichresis, pledge, mortgage servitude, Palitsyn, lex commissoria