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Апрель 2015










Vadim Belov Independent Guarantee in the Amended Civil Code of the Russian Federation and in the Sources of International Trade Law
General rules on obligations and contracts in the Civil Code of the Russian Federation have been significantly amended by the Federal Law No. 42-FZ of 8 March 2015. The amendments, which had been widely and actively discussed prior to their adoption, will come into force on 1 June 2015. This article analyses some of the new rules related to the independent guarantee, formerly known as bank guarantee, in Chapter 23, § 6 of the Civil Code and compares them with the UN (UNCITRAL) Convention on Independent Guarantees and Stand-by Letters of Credit of 11 December 1995, as well as some international unifications of private law. This comparison helps to see the sources of the new Russian rules and to give a preliminary assessment of these rules which is, unfortunately, not always positive.
Keywords: independent guarantee, obligation, security, bank guarantee
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Sergey Budylin Splitting in Half: Personal Bankruptcy and Family Property in Russia and Abroad
The article discusses creditors’ rights for family assets in the course of bankruptcy in England, the U.S., and Russia. The status of family assets in case of bankruptcy has become a timely and relevant topic because new Russian legislation on bankruptcy of individuals other than entrepreneurs should come into force in July, 2015. Across the world national particularities of family property status have a major impact on the entire bankruptcy procedures as well as have a great significance for the determination of creditors’ rights. It especially concerns Russian and other jurisdictions, which establish joint tenancy over matrimonial property.
Keywords: personal bankruptcy, matrimonial property, community property, England, U.S., Russia
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Evgeny Gorbunov On Persons Acting without Power of Attorney on Company’s Behalf: towards Reform of Legislation on Commercial Companies
This article explores the recent changes in the Russian Civil Code which allow a сommercial company to have several persons acting on its behalf without a power of attorney. Different models of executive bodies of legal entities are being analysed de lege lata and de lege ferenda. The author proposes to establish a set of regulations regarding persons acting without a power of attorney on company’s behalf which will prevent such persons being regarded as a sole executive body or a chief executive officer. This practice is argued to allow shareholders to establish a hierarchy of a company's executive bodies or officers. The suggested hierarchical model is demonstrated by the example of state industrial enterprises of the Soviet economy.
Keywords: representative, sole executive body, executive organ
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Alexey Argounov The Legal Basis of the Dispute in the French Civil Procedure
This article examines the problem of identitiy of claims and discusses legal basis as an element of identity by the example of new practice of the French Court of Cassation. According to its caselaw the parties involved in the dispute should raise all possible claims derived from the same facts, and must specify the possible legal grounds for claims in one process. In case the parties fail to do so, such a mistake cannot be rectified by filing a new suit with a different claim. The court would consider the new suit as identical to the previous one because it is based on the same facts. It does not matter that this time the claimant asks for other remedies or provides different legal ground for his claim.
Keywords: claim, cause of claim, subject matter of claim, identity of claims, legal ground of claim, remedies, principle of free exercise of rights, adversarial principle


Ahdrey Rybalov There Should Be No Secret Rights to Real Property
The article investigates the judgment of the Constitutional Court of the Russian Federation № 5-П of 24 April 2015 which considered the constitutionality of Art. 19 of the Federal law on the implementation of the Russian Housing Code. Based on this article, the ordinary courts decided that family members of the owner of residential property could exercise their non-registered right to use this property against its purchaser when it is sold to clear mortgage debts. The Constitutional Court declared that such approach, and the article itself, violates the Constitution. The article examines grounds for this decision as well as its possible consequences, and argues that it shall have a great influence on the further development of the Russian property law.
Keywords: publicity of property rights, real estate encumbrances, right to use residential property, bona fide purchaser, exigibility of property right
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