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ARCHIVE FOR 2014    RUSSIAN

Май 2014

CONTENT

 

 

Chief editor’s column

Y.B. Piskunov. Editorial
Lawyers practicing in family law know that norms of Family Code regulating property relations of spouses underwent no changes since the Family Code has been passed in 1995.
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Interview of the issue

V.V. Blazheev. Lawyer has to be trained fundamentally
Rector of Kutafin Moscow State Law University Viktor Vladimirovich Blazheev replies to questions by Yan Piskunov, chief editor of “Zakon” journal
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The Event. Comments of the Experts

Temporary agency work: pros and cons
Legislator has finally made an attempt to regulate one of the critical issues in Russian labor law – the temporary agency work issue. Federal law of 05.05.2014 № 116-ФЗ coming into effect on January 1st, 2016 and conventionally named “Law on Prohibition of Temporary Agency Work” draw mixed reviews in business community and legal professionals. We have asked our experts to evaluate legal effects of new regulation by answering to the following questions:
1) How would you appreciate the existence of temporary agency work in Russia?
2) Is it reasonable to preserve it and, if yes, in what form should it be done?
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Topic of the issue

L.A. Novoselova, U.V. Petrova. Legal aspects of assessment of compensation as a protective mean in the intellectual property law
The article is devoted to payment of compensation for committed violation which is one of means for protection of sole rights.Authors regard application of the protective mean in Russian law and legal practice as well as analyse the problems of compensation assessment in the cases of a simultaneous violation of both copyright and related rights.
Keywords: compensation for violated right, copyright, copyright related rights, sound records, sole rights
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A.P. Sergeev, T.A. Tereshenko. Right on award of authors of utility objects of intellectual property: history of false choice
The article quotes the question of the duties of holder of rights on utility solution to its author in the case of loss of effect by a patent n view of non-payment of patent fee recently considered by the Constitutional Court of the Russian Federation. Authors arrive at the conclusion that the employer in the mentioned case remains obliged to pay the due award to the authors of utility solution. The article also presents significant conclusions taken out of the correspondent Decision of the Constitutional Court of the Russian Federation of 05.03.2014 № 497-O that are useful for change of courts practice in the matter of protection of intellectual rights and will contribute to its uniformity.
Keywords: intellectual property, patent law, utility invention, utility model, employee’s utility model, award, constitutional control
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I.V. Nevzorov. Intellectual property in the year 2114. Seeking to guess the future
The article provides analysis of possible tendencies of development in the intellectual property rights for the next century. Among other thesis of his brief prognosis author touches upon the issues of shaping of the new objects of intellectual property with a possible division of a consolidated object of legal protection of intellectual rights, globalisation of the intellectual property rights protection system as well as prospects of a drastic revision of the concept of intellectual rights per se.
Keywords: intellectual property, items covered by copyright, conditional sole right, consolidated object of legal protection of intellectual rights, open content concept
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F.I. Dubovik. On the question of the nature of license agreement or Why does the granting of right performed in the agreement not granting the right?
Aim of present article is, firstly, to set the problem of substance and nature of the license agreement, license rights and of the character of relationships between rightholder, licensee, third persons and, secondly, to describe possible practical outcomes of conclusions made by author. He proves the idea that the right to use the result of intellectual activity or the mean of identification belonging to licensee on the basis of license agreement is not a subjective civil right and license agreement is an agreement for granting/transfer of such subjective civil right.
Keywords: license agreement, subjective civil law, intellectual property, license holder rights
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V.V. Orlova, U.A. Yakhin. Legal regulation of know-how
Authors of the article face in their practice lack of understanding of the question concerning approaches to the necessity of protection of all confidential information in trade secret regime as well as of problems arising of determination of award amount for utility results of intellectual activity created in particular organisations. It is obvious that actual legislation suffers from irrelevance which leads to misbalance in regulation of such relations. At the same time the novelties of legislation coming into effect in the nearest time would let us give an answer to present questions and build well-balanced relations between staff and employer within organisations. Essence of these alterations as well as the things needed to be done by legal specialists of the companies is touched upon in present article.
Keywords: know-how, work secret, utility results of intellectual activity, utility invention, invention, utility model, industrial prototype, trade secret, authors award
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E.U. Gorodisskaya. Trademark rights succession
The article focuses on the issue of succession of rights on trademark in the case of death of sole proprietor. Author analyses eventual means of remedy for heirs in regard to the actual legislation and courts practice. Gaps in the new legal regulation as well as the necessity of their elimination are also exposed in the article.
Keywords: succession, passing of sole rights, trademark, registration of sole rights passing at the Federal Service for intellectual Property (“Rospatent”), sole proprietor
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P.V. Sadovski, I.M. Kosovskaya. Recovery of indemnity for illegal use of trademarks in light of the latest courts practice
The article explains actual issues of indemnification for illegal use of trademarks faced by legal specialists in the sphere of adjudication of disputes combined with intellectual property. Authors analyse particular examples of precedents that let us to take a look at the latest tendencies in the topic. Moreover authors cover international approaches to understanding of the legal nature of indemnity for illegal use of sole rights.
Keywords: trademark, means of identification, sole rights infringement, indemnity for copyright holder
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A.V. Semenov State, Senseless and Sledge” or Peculiarities of the national opt-out class action in the culture sphere
The article points out development of the system for collective management of copyright and related rights in Russia in view of the contemporary law enforcement practice and with regard to its historical prospects. Author arrives at the conclusion that the mentioned system does not even resemble the system for protection of individual rights for optimisation of rightholders’ expenditures in its present state but is a certain para-fiscal fee ensured by judicial restraints. Judicial interpretation of procedural mechanisms used herein provides a fruitful ground for misuses and exceed of granted authority of companies for collective management of copyright.
Keywords: copyright, related rights, sole rights infringement, copyright protection, collective management, class actions, group actions, indemnification, punitive damages
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News of the community

V.A. Korotkov. Electronic archive system: new dawn for information support of international justice
The following is stipulated by the Federal Target Program “Judiciary System Development of Russia for 2013-2020”:
  • Creating of conditions for adoption of the digital legal procedure, receiving of copies of documents and familiarisation with case materials in electronic format;
  • Providing of long-term permanent storage and guaranteed preservation of digital copies of judicial documents;
  • Creating of points for scanning of judicial documents;
  • Application of video and audio logging of court sessions;
  • Facilitating of the digital conversion of court archives.
Provided digital archive solution and its efforts can be illustrated through an example of magistrates’ courts of Tyumen oblast.

 

Theory and practice

R.M. Khodynkin Article 162 (item 1) of the Russian Civil Code in the interpretation of British court: tracing the Berezovsky v.s. Abramovich case
The article examines legal nature of the Russian Civil Code norm containing prohibition on use of human evidence as legal evidence by the written transaction form defect. It is shown in the High Court case against Abramovich that assignment of the norm to the rule of substantive law or, on the contrary, to the procedural law may directly affect on the outcome of a case in foreign court. Author also explores the important subject of whether the limitation set by item 1 of the Article 162 also contemplate prohibition to use pleadings of the parties as evidences.
Keywords: invalidity of legal transaction, transaction form defect, human evidence, pleadings, subsumption problem

 

A.T. Bonner Echoes of war. Debating on military decorations
Author appeals to such unusual object of civil law rights as state decorations, legal regulation of turnover of which in Russia can be recognised as controversial. He shows that the Russian law as well as diverse courts practice interferes with realisation of reasonable legal entitlement of successors of the state decoration receivers.
Keywords: state decorations, objects of civil law rights, limited proprietary right, succession
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D.A. Kotenko Crowdfunding – innovational instrument for investment
The article describes the main features of crowdfunding phenomenon and provides legal classification of its kinds known for today. General analysis of legal regulation of aspects of crowd financing in the USA as well as analysis of development of the institute of crowdfunding in Russia is provided in the article.
Keywords: crowdfunding, crowd financing, investment, economy of knowledge, solidarity, Internet
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F.A. Tasalov. Development principle of competition in contract systems of Russia and the USA:
The article provides analysis of issues combined with the principle of competition assistance in the US Federal legislation on procurement of goods, services for needs of the public procurement authorities and in the Russian laws on contract system in the sphere of state procurements. Doctrinal positions of US and Russian scholars on the researched question are presented in the article. There are also proposals made for the purposes of improvement of the Russian legislation.
Keywords: competition, contract system, public procurement
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T.I. Shaykheev Violation of anti-monopoly legislation through setting of monopolistic high and monopolistic low prices
The article looks at a special type of misuse of the dominant position on market by economic agent – at setting of monopolistic high and monopolistic low prices. It presents the research of understanding of the term in legal literature with examples from legal precedents.
Keywords: anti-monopoly legislation, economic agent, misuse of the dominant position on market, monopolistic high price, monopolistic low price, financial organisation, unreasonably high (low) price of financial service
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I.I. Zikun Nature of lien: comparative legal review
Author handles eight existing approaches to the nature of lien and arrives to the conclusion that all of them are groundlessly simplifying the nature of enforcement institute. Comparison of approaches of various legal systems lets us recognise four main elements constituting the nature of lien.
Keywords: nature of lien, priority right, expectation rights, secondary rights
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S.I. Kalinin, O.V. Ushakov, A.A. Filchukov Securitisation and project financing in Russia: new legal environment
Federal Law of 21.12.2013 № 379-ФЗ “On Alterations to Certain Legislative Acts of the Russian Federation” known at the stage of its development as the draft law on securitisation is published on December 23rd 2013. The law provides for an opportunity of securitisation of the mortgage assets and creates legal basis for performing of project financing transactions including the introduction of such institutes as specialised companies, nominal account agreement and escrow account agreement. Present article contains analysis of the mentioned novelties.
Keywords: securitisation, project financing, bond issue, specialised company, SPV, nominal account, escrow account
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