ARCHIVE FOR 2015 RUSSIAN
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Июль 2015
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.Yu. Aleksandrov, D.S. Krasnoshtanov. Civil liability of persons controlling the debtor in bankruptcy proceedings Liability of persons in control of the debtor becomes an
increasingly pressing problem of bankruptcy proceedings.
Controlling persons may be held secondarily liable for the
debtor’s indebtedness in case of insufficiency of the latter’s
assets. The amendments recently introduced to the Part One
of the Russian Civil Code also provide additional options for
recovery of damages from controlling persons. The authors
analyse the practice of application of both mechanisms
(bringing the persons in control of the debtor to secondary
liability, and recovery of damages), compare them and mark
out their main features.
Keywords:
bankruptcy, controlling persons, secondary liability, recovery of damages
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I.A. Makarov. On the arbitrability of disputes over the current debts’ recovery from the insolvent party In spite of a huge amount of judicial decisions considering
the disputes over the enforcement of arbitration awards
on current debts’ recovery from the bankrupt, courts’
practice is hardly unified. The issues of arbitrability of
such disputes, including the introduction of amendments
to the corresponding legislation, as well as the issues
of the procedure for enforcement of the awards, remain
controversial.
Keywords:
current payments in bankruptcy, arbitrability, enforcement of arbitration awards, issue of a writ of execution
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E.A. Ostanina. Indemnity in case the debtor is insolvent New rules regarding indemnity have not been associated
with familiar standards yet. Its efficiency depends on its
conjunction with other civil law institutes. In particular,
does the right of indemnity participate in a contest in case
of the debtor’s insolvency? The author insists that, as a
general rule, this requirement is to be included in the list of
creditors’ claims but describes the methods to prevent the
abuse of law.
Keywords:
indemnity, abuse of law, insolvency
M.Yu. Garanin. The issues of challenging the provisions of an employment contract in bankruptcy proceedings The article touches upon challenging the provisions of an
employment contract on pay increase and bonus payments
in bankruptcy proceedings and reveals contradictions
in courts’ practice of recovering funds received by the
employees of the debtor. The author focuses on the priority
of the labour legislation over the bankruptcy legislation
which keeps labour contracts valid and does not assume
collecting salaries from employees. To recover the debtor’s
and bankruptcy creditors’ interests damaged by labour
contracts and contract payments, the author suggests to
lay legal responsibility on the individuals who made or
changed the contracts and executed payments on behalf
of the debtor.
Keywords:
challenging the transactions in bankruptcy proceedings, employment contract, agreement with a sole executive body, golden handshake, subsidiary liability in a bankruptcy case, liability of members of the body corporate
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Discussion Board
V.A. Belov. “Forbidden” civil law, or what is civil law silent on? The present article is the continuation of the series of
publications regarding the “secret knowledge”, which
is forbidden in the Russian civil law studies due to the
dogmatic thinking that separates any alternative stream
of legal thought except for the one corresponding to the
conventional dogma. That’s why the Russian law students
have no possibility to take a look on many civil law institutes
from different perspectives, which adversely affects the
national legal science. The author tries to challenge certain
stereotypes established in the Russian law schools during
civil law studies.
Keywords:
civil law, civil law teaching, legal education
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Press Release
Theory and practice
A.T. Bonner. Legislation on assisted reproduction and practice of its enforcement by courts need to be improved It is well known that the scientific progress is generally ahead
of law. In terms of the Continental legal system it could
mean that further filling of such gap should be made by a
legislator staying relevant to the evolvement of new legal
relationships. Special attention to the establishment of case
law is needed when courts begin to pass judgments being
bizarre as a matter of law and of fair balance of interests,
which becomes apparent in the context of judicial formalities
dominating over the judges’ minds. If we won’t manage to
correct the wrong tendencies of judicial practice, all spheres
of legal regulation will be affected by the general poor state.
Certain cases described by the author of the article vividly
illustrate this situation.
Keywords:
assisted reproduction, implantation of embryo, surrogation, parenthood, family law
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A.V. Danilenkov. Indemnification for moral harm in family law relations The article is focused on the analysis of actual issues,
regarding the institute of the compensation for moral harm
as applied to familiy law relations. The article especially
emphasises the option to seek the indemnification for moral
harm in case of the infringement of the parent’s right to
maintain a direct contact with his child; the aforementioned
entitlement is construed as an immaterial personal right
(immaterial benefit), which should be conferred upon the
affected person with the civil law protection.
Keywords:
compensation of the moral damages, effective remedy, European Court of Human Rights (ECHR), family life, sole custodial parent
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A.V. Neznamov. Payment for a unilateral termination of a contract In many cases, parties to a real estate lease contract or a
service agreement stipulate that its unilateral termination
by one party entails payment of a certain amount (fine,
penalty, compensation for termination, loss of profits etc.)
to other party. This article deals with the legal nature of such
payment and tendencies of judicial practice regarding it`s
qualification and possibility of its enforcement.
Keywords:
real estate lease contract, service agreement, unilateral termination of contract, fine, compensation for termination, security deposit
A.V. Padiryakov. Recovery of damages and contractual remedies under the law of England and Russia The present research offers an overview of damages
and other contractual remedies available to parties
under Russian and English law. The overview reveals
a fundamental difference between the legal systems of
the two countries which entails difference in available
remedies and mechanisms for their implementation. There
are remedies in the English law which are not known to
the Russian law, and there are remedies not developed
in England but widely recognised by the Continental
(including Russian) legal system. The implementation of
the same remedies could be based not only on different
mechanics but on the different ideology.
Keywords:
damages, liquidated damages, injunction, indemnity, remedies, English law
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E.A. Evdokimova Superpriority of a certain category of security holders: comparative law research The article is devoted to the analysis of superpriority of
acquisition finance device (purchase money security
interest) — a phenomenon that is not known to the Russian
law yet. However, after introducing in Russia the system of
registration of proprietary security interests under which the
priority of rights is determined according to the moment of
registration as well as taking into account the possibility of
security interests in future assets the issue of superpriority
becomes relevant also for Russia. The author considers
foreign experience, reasons of giving superpriority to
purchase money security interest and tries to find an
answer to the question whether Russian legislation should
use foreign experience and also provide for superpriority of
purchase money security interest.
Keywords:
proprietary security interest, priority, superpriority, priority rank, acquisition financing, purchase money security interest, acquisition finance device, registration of security interests, seller’s security interest
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Foreign experience
S.V. Glandin. Winding up a bvi business company by its creditors It is highly unusual for Russian beneficiaries to wind up a
BVI business company. However the English law applicable
on the Virgin Islands entitles members and creditors to
remedies unknown in the Roman law countries, e.g. Russia.
As an outcome, the fact that the insolvent BVI business
company is wound up pales into significance against
derivative results and benefits provided by the uncovered
information. Special emphasis is laid on liquidators’ powers
and creditors’ rights in the course of the liquidation of an
insolvent company.
Keywords:
winding-up, insolvency, BVI Business Company, creditors’ rights, liquidator’s powers, English law
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