ARCHIVE FOR 2013 RUSSIAN
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Сентябрь 2013
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Class actions and multiple losses in the Russian law Senior officials of the Federal Anti-Monopoly Service have repeatedly expressed the need to develop private-law principles in the Russian competition law. Nowadays, solution of this task is primarily associated with the introduction of the possibility to file lawsuits from numerous consumers, as well as with creation of the mechanism of multiple losses and distribution of collected amounts for the benefit of the victims. The competition roadmap requires that the relevant draft laws be prepared in October and November of the current year. The possibility of choosing between the American and the European ways of development of new institutions is under discussion. Which way should Russia follow? What challenges the domestic legal system will face due to implementation of the above mechanisms?
Topic of the issue
A.Ya. Kurbatov The Principle of Inadmissibility of Abusing Rights: Old Problems Remain, New Problems Arise The article deals with both well-known problems of application of the principle of inadmissibility of abusing rights and those that have arisen due to the amendments to the Civil Code of the Russian Federation, in particular due to introduction of the principle of good faith as the basic principle of the civil law and the concept of circumvention of the law with unlawful purpose as a form of abuse of rights. The author asserts that the Russian law is turning into a haphazard set of evaluative categories and that courts are granted with unlimited rights of their application.
Keywords:
abuse of rights, good faith, circumvention of the law
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E.D. Suvorov Actions in Circumvention of the Law: Legal Qualifications and Consequences The new edition of Article 10 of the Civil Code of Russian Federation defining actions in circumvention of the law as a form of abuse of rights was enacted on March 1, 2013. Did the emergence of this disposition achieve the goals set forth by its developers? The present article sets forth the mechanisms of qualifications of relevant actions as committed in circumvention of the law and application of legal consequences provided by the legislator for the recovery of interests affected by the circumvention of the law. In other words, the article envisages specific methods of application of the disposition ‘Circumvention of the law is prohibited’ in the law enforcement practice.
Keywords:
circumvention of the law, abuse of rights, re-qualification, invalidity of transactions, simulated transactions
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A.E. Tarasova Competing Technologies: Circumvention of the Law along with Parallelism of the Legislation and the Law Enforcement Practice The article contemplates problems of practical qualification of a new form of abuse of rights, namely actions in circumvention of the law with unlawful purpose, in relationships of shared construction of apartment buildings and other real estate. The author performs analysis of the legislation requiring special protection from actions of participants in the regulated relations related to circumvention of the law, with view to specific features of the method of regulation of civil-law and adjacent relations. The author considers the legislation and the law-enforcement practice in the field of shared construction of apartment buildings (houses) as possessing characteristics of the parallel regulation and reveals the essence of the aforementioned phenomenon.
Keywords:
circumvention of the law, abuse of rights, unlawful purpose, shared construction participation agreement, parallel legislation
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V.S. Kutuzov Construction Competition as a New Legal Phenomenon The article defines a relatively new legal phenomenon of building development, which, according to the author, shall bear the name of ‘Construction competition’. Its essence lies in the imposition by the first developer of certain conditions relating to architectural planning and engineering solutions to owners of neighboring land plots. The author investigates various means of public and private law protection against such abuse. Expansion of the principle of unity of land and real estate with subsoil is one of solutions to the relevant problem advanced by the author.
Keywords:
construction competition, building leasehold (superficies), urban development zoning, land planning, negatory lawsuit, abuse of rights
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A.S. Vorozhevich Patent Trolling: Nature, History, Legal Mechanisms of Counteraction Patent rights, being the key corporate assets, are now widely used as a tool of raider attacks and suppression of competitors. The article characterizes specific activities of patent holders committed in violation of the limits of protection of exclusive rights, namely the patent trolling. The author delves into the nature of the above phenomenon and the legal mechanisms of counteraction to it.
Keywords:
exclusive right, patent holder, limits of protection of rights, abuse of rights, patent trolls
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Theory and practice
T.N. Neshataeva Choosing the Path of the EurAsEC Court: Legal Positions and Protection of Rights The article is concerned with analysis of the first experience of the EurAsEC Court as a supranational authority. The author points out peculiarities of the Court functions, of provisions of the EurAsEC Court Statute and of the Treaty on Appeal to the Court of the Eurasian Economic Community of Business Entities in Disputes within the Customs Union and certain features their resolution, as well as provides an overview of the key legal positions of the EurAsEC Court on matters which are not clearly or completely regulated by the law of the Eurasian Economic Community.
Keywords:
Court of the Eurasian Economic Community, the Customs Union, the Common Economic Space, judicial interpretation, execution of a judicial act
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M.Sh. Patsatsia Submission of Several Counter-Claims in one Trial: Pro et Contra The counterclaim is one of the most important, often irreplaceable procedural methods of protection of the defendant’s rights and at the same time can represent a means contradicting with the justice objectives and the principles of arbitration and civil proceedings. The article is dedicated to non-obvious and controversial cases of submission of several counter-claims. The author addresses Pro et Contra of the procedural action, advancing his own point of view on the subject.
Keywords:
counter-claim, arbitration proceedings, civil proceedings, abuse of procedural rights
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N.V. Ivanov Legal Protection of Consumers’ Interests during Concert and Entertainment Events The article focuses on issues concerning protection of interests of consumers visiting concerts and entertainment events. The author envisages typical cases of violation of consumer rights in this area, such as refusal to return or exchange the purchased ticket, performance of musical works to the phonogram without prior notification of the audience, late start of the concert, including due to performance of artists not stated in the show bill. The author investigates the existing legal norms and sanctions for their violation.
Keywords:
consumer, consumer rights, concert and entertainment services, right to return the purchased ticket, information on the service, phonogram, penalty
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V.A. Kolosov Parody in the Copyright System This article investigates the topic little studied in the modern Russian legal doctrine, in particular the legal nature of parody works. The issues raised by the author of the article are without any doubt acute, because the parody is a common form of the free use of product not requiring the right holders’ consent and payment of any compensation, which was for the first time introduced in the fourth part of the Civil Code of the Russian Federation. The author puts forward approaches and criteria for distinguishing between the parody and illegal use of the product.
Keywords:
copyright, parody, exclusive rights, free use of the product, illegal processing
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O.A. Kuzmina Legal Regulation of Participation in the Shared Construction of an Apartment Building
Issues of participation in the shared construction of apartment buildings have great social significance. Despite numerous attempts of legislators to regulate this sphere, the competent authorities and judicial practice failed to achieve unity as yet. Presence of lacunas in laws and lack of a clear system of legal regulation lead to numerous violations of rights and interests of interest-holders. The article discusses problems relevant to interpretation by courts of the legally imposed restrictions. The author highlights recent legislative amendments aimed at ensuring protection of individuals being the vulnerable party to the relevant contractual relationship.
Keywords:
shared construction of apartment buildings, renovation, real estate, developer, investment activity, entrepreneurial activity
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