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ARCHIVE FOR 2015    RUSSIAN

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.R. Sultanov. The ECHR has given a chance to the Supreme Court of the Russian Federation, recognising the second cassation in the civil proceedings
The article analyses the ECHR decisions on the recognition of the third and fourth judicial instances in Russia as an effective remedy. The author draws conclusions about how courts’ practice would change henceforth.
Keywords: supervision, revocation, ordinary court, civil procedure, the ECHR
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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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