Журнал ЗАКОН

Commentary on Decision of the Judicial Division for Civil Cases of the Supreme Court of the Russian Federation No. 5-V12-3 of May 15, 2012

Commentary on Resolution of the Presidium of the Supreme Court of the Russian Federation No. 9007/12 of November 13, 2012

Commentary on Resolution of the Presidium of the Supreme Court of the Russian Federation No. 7805/12 of October 23, 2012

Commentary on Resolution of the Presidium of the Supreme Court of the Russian Federation No. 5495/11 of October 11, 2011

Commentary on Resolution of the Presidium of the Supreme Court of the Russian Federation No. 3933/12 of September 18, 2012

This article contemplates the issue concerning concepts developed in foreign law to be applied in contracts governed by the law of Russia by the example of the institute of indemnity. The article briefly describes the scope of application of indemnity in the law of England and the USA; special attention is paid to liabilities of indemnity in sales and purchase agreements and the loss of their meaning in recent years. Issues as to achieving the result similar to indemnity are broached within the framework of the Russian civil law.

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Keywords: losses, indemnity, compensation of loss

The article examines the problems of courts establishing the causes for the liability of a head of a business entity in case if he/she should inflict damage on the entity as a result of settlement of a transaction on its behalf under risk. The author reviews the criteria of acts of a head to the extent of a reasonable entrepreneurial risk suggested at the doctrinal level and in the context of the judicial practice, makes conclusions related to the scope of application for the category of a ‘reasonable entrepreneurial risk’, the factors necessary for the head’s actions to be recognized as reasonable and faithful when concluding a transaction under risk.

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Keywords: reasonable entrepreneurial risk, responsibility of a head of a business entity, reasonableness and good faith, risk evaluation when concluding a transaction

The objective of the article is to review the procedure for bringing to criminal responsibility for cartels, to analyze the application of art. 178 of the Criminal Code of the Russian Federation, as well as the judicial decisions in criminal cases concerning restriction of competition. In accordance with the results of the study performed, the author of the article draws an inference that it is necessary to amend the Code of Criminal Procedure of the Russian Federation, according to these amendments the sole ground for criminal cases to be initiated based on art. 178 of the Criminal Code of the Russian Federation should be a decision of the board of an anti-monopoly authority as to the establishing a fact of violation of anti-trust laws. The novelty specified shall solve but several problems: formalize the participation of anti-monopoly authorities in investigating crimes of the given category and enhance the quality of decisions on bringing to criminal responsibility for them.

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Keywords: anti-competitive agreements, cartel, criminal responsibility, anti-monopoly authorities, general jurisdiction courts, law-enforcement agencies, Federal Antimonopoly Service of Russia

An agreement between a credit and an insurance institutions (both in writing and verbally) governing the co-operation of a bank and an insurance institution when issuing a loan, provided that specific risks are insured, shall meet a number of requirements. In particular, such agreements shall comply with the requirements of Law On the Protection of Competition and Regulation of the Government of the Russian Federation No. 386 of April 30, 2009 On Cases when Agreements between Credit and Insurance Institutions are permissible. Actions of credit and insurance institutions violating the mentioned requirements may be classified as tying the contractor by terms and conditions disadvantageous for it and irrelevant to the scope of the contract; a groundless rejection in economic or technological terms or reluctance to conclude the contract with individual buyers, etc. Despite the slackening of the line of the Federal Antimonopoly Service of Russia, inclusive of the lack of established practice, banks and insurance institutions are advised to take a number of actions specified in the article.

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Keywords: a bank, a credit institution, an insurance agency, an agreement, a loan, credit activities

The Presidium of the Supreme Court of the Russian Federation specified in Resolution No. 5157/12 that the amount paid on the basis of a court ruling on the approval of an amicable agreement cannot be considered as unjust enrichment, even if it will subsequently be known that the party to a dispute was lacking in the right to claim, on the procedure for the execution whereof the amicable agreement was reached. The author comes to the conclusion that the mentioned stance fails to comply with the most well-known concepts of grounds for enrichment, doctrinal developments in the sphere for determination of the nature and considerations of amicable agreement, as well as the limits of statutory force of a judicial act.

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Keywords: unjust enrichment, amicable agreement, consideration, grounds for enrichment