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ARCHIVE FOR 2013    RUSSIAN

Октябрь 2013

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

Schekin D.M. “Tax law is gradually becoming less formal not only in our country but around the world”
Managing partner of law firm “Schekin and Partners” Denis Mikhailovich Schekin is answering the questions of editor-in-chief of magazine “Zakon” Yan Piskunov
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The Event. Comments of the Experts

The unification of the superior courts
In the near future the judicial system of Russia will be substantially reformed. For jurisdiction collisions resolution purposes the President came forward with an initiative of unifying two parallel acting highest judicial authorities into a single Supreme Court. Some time ago, when such a possibility was not seriously discussed, we suggested our experts to argue about a possible unification of the systems. Today it is rather interesting to re-read these - more than urgent - opinions.

 

News of the community

 

Topic of the issue

J. Kelly “The English law contains an accurate set of principles, which control stripping off the corporate veil”
Partner of the London office of international law firm Cleary Gottlieb Steen & Hamilton LLP Jonathan Kelly answers the questions of Zakon.ru project manager Vladimir Bagaev.
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Goltsblat A.A., Trusova E.A. Stripping off the corporate veil in the judicial and arbitration practice of Russia.
The independence and liability limit principles, which underlie the concept of a legal entity, not infrequently serve as a means of various kinds of abuses. The contemporary doctrine has developed a method to fight this phenomenon – the so called concept of stripping off the corporate veil, which has recently been apprehended in Russia too. Based on the analysis of the law-enforcement practice the authors mark out universal criteria for applying this concept by domestic courts.
Keywords: stripping off the corporate veil, legal entity, independence, liability limit, affiliation, liability of the holding company, Control Person
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Tay Yu.V., Arabova T.F. Too heavy to lift the veil
Under the conditions of the Russian reality in entrepreneurial relations the theory of stripping off the corporate veil is one of few mechanisms, able to help defend from abuses of unconscientious economic agents. Based on their own experience the authors investigate into the problems, confronted by use of this tool in Russia today, and also cover stands of superior courts, which beneficially influenced standards of proving connectedness of unfairly acting affiliated persons.
Keywords: company law, liability, stripping off the corporate veil, affiliation, interested party transactions, burden of proof
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Nazykov A.L. Resulting trust v. piercing the corporate veil: in what cases assets of the company should be considered belonging to its Control Person
The registration of property in favor of the affiliated company is a widespread phenomenon, caused by various reasons. At first sight piercing the corporate veil may seem a short way to the assets, secreted by a legal personality of the company. The contemporary English judicial practice has found a way to agree the principle, established in case Salomon v. A. Salomon & Co. Ltd. (1897), with the interests of the persons, seeking the recognition of company’s assets as property of its Control Person. Among other things the author investigates into the new approaches, used by the English court in case Prest v. Petrodel Resources Ltd.
Keywords: piercing the corporate veil, stripping off the corporate veil, legal entity, corporation, affiliation, founder liability, trust
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Karnakov Ya. V. Revisiting the question of affiliation of non-state pension plan
The controversy, surrounding the definition of the criteria of the affiliation and expediency of the consolidation of their exhaustive list in the legislation, has recently hardened. In this article the author shows with a specific reference how loopholes in the law can be used to achieve an apparent independence between the de facto mutually dependent organizations, directly or indirectly participating in the entrepreneurial activity. A special attention is being paid to the problem of the recognition of the affiliation of noncommercial organizations according to the Russian law. The conclusions, based on the research results, may turn out to be useful not only for a law enforcement official, but also for a law-maker when solving the issue about reforming the affiliation regulations.
Keywords: affiliated persons, non-state pension plan, noncommercial organizations, judicial founder liability
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Judicial practice. Comments

Vorobyova I. O., Bykov V. P., Finogenov A. V. The consideration of the cases over challenging the transactions of the bankrupt obligator: practical issues
The article analyses a judicial practice regarding the cases over the voidance of the transactions of the bankrupt obligator. The terms of challenging the transactions, concluded by the legal entities going through insolvency proceedings, are investigated into in detail. Based on the analysis of the accepted practice of arbitration courts, the peculiarities of challenging the transactions of the obligator as per the special grounds, specified by the bankruptcy Law, have been revealed.
Keywords: bankruptcy, insolvency, invalid transactions, suspicious transactions, preference transactions, challenging the transactions of the obligator
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Theory and practice

Galperin M.L. The levy of execution upon the sole dwelling of the obligator-citizen: is there a regulatory solution?
The article is a continuation of a series of the publications of the author in magazine “Zakon” ( 2011, Issue No. 7, 2912, Issues No. 4,5,9), dedicated to the urgent problems of contemporary enforcement proceedings and ways of its development. This time the author considers the development of a legal mechanism of the levy of execution upon the sole dwelling of the obligator-citizen.
Keywords: civil procedure, enforcement proceedings, dwelling, right of housing, property exemption.
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Trukhanov K.I. The decisions of the meetings – a new category in the civil Code of the RF.
Federal Law No.100-ФЗ1 as of 05.07.2013 has substantially supplemented the Civil code of the RF, having introduced into it chapter 9.1 “The decisions of the meetings”. The author states his opinions on the legal nature of the decisions of the meetings and investigates into the issues of the practical usefulness of the new provisions of the Civil code.
Keywords: the decisions of the meetings, corporate actions, transactions, limitation of action.
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Anikina O.V., Gorodnyanskaya V.V. Securing obligations by the independent joint security: the possibilities of the current regulation, amendments to the Civil Code of the RF.
The article considered the current regulation of performance bonds in the RF and international standards for on-demand guarantees, the tendencies of the Russian arbitration practice with regard to performance bonds, as well as related changes in the Civil code of the RF to be planned. The authors analyze the problems of collection on guarantees (including the issue of the good faith of beneficiary and indemnitor actions) and expound on approaches to phrasing the conditions of a guarantee.
Keywords: performance bond, independent joint security, beneficiary, indemnitor, good faith, abuse of right, securing obligations.
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Suprun V.V., Maidarovsky D.V. Contemporary problems of the legal regulation of the lease.
The article considers the problems of reforming the regulations of the civil legislation on lease arrangements. The acts of interpretation, the judicial established practice in applying the law on the issues of the classification of relations prior to the moment of the state registration of the lease arrangement, of the relations on the use by the leasee of a part of the property, as well as a range of problems, associated with the conclusion of the contract on letting of an immovable product, have been analyzed in detail.
Keywords: lease arrangements, right to thing, right in personam, possession
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Yudin A.V. Beyond-litigation applications on civil cases: a notion, kinds, the order of revealing and consequences.
The changes, introduced into the legislation, require that beyond-litigation applications filed to the court be made public and served to litigation participants by means of posting this information on an official court website. The author dissects the notion of “beyond-litigation application”, proposed by the legal and regulatory act, considers problems arising in association with revealing such an application.
Keywords: beyond-litigation application, non-litigation application, independence of the judiciary, relevance of evidence, interference in the court procedure of work, the revealing of beyond-litigation application
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Abrosimova E.A. The co-relation of the public and private interests in the commercial legislation on arranging the commercial intercourse
The article considers the issues of the legal regulation of arranging and processing commercial intercourse with account of the interests of its participants and the state, the recommendations on striking an optimum balance between the private and public interests in the commercial intercourse have been given.
Keywords: economic law, processing of the commercial intercourse, management of trade, private interest, public interest, trade development strategy
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Bratko T.D. Constitutional frameworks of the concept of fiscal incentives in the legal systems of Russia and foreign countries
The article presents the comparative analysis of the constitutional and legal regulation of fiscal incentives in Russia and abroad, and considers the problems of using tax law principles, closely associated with constitutional positions, during the solution of the cases which challenge the regulations, establishing fiscal incentives.
Keywords: tax law, taxes, incentives, constitutional principles of taxation, non-discrimination principle
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Foreign experience

Ian Ivory, Benedict West, Ed Stuart The use of English law in Russian transactions: Dispelling the Myths
The authors dwell upon main wrong beliefs, which, in their opinion, are characteristic of Russian lawyers when assessing the concepts of English law used for regulating commercial legal relations. They investigate into the role of parent case, of contractual freedom and the construction of contractual stipulations, as well as the use of the good faith principle in English law.
Keywords: English law, common law, equity law, statute, parent case, contractual freedom, implied terms of the contract, contract law, good faith
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