ARCHIVE FOR 2015 RUSSIAN
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Сентябрь 2015
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
D.O. Tuzov. Lex ‘Quasi’ Perfecta? On the New Edition of the Art. 168 of the Russian Civil Code and Fundmanental Concepts of the Civil Law Theory The article provides analysis of the new edition
of the Art. 168 of the Civil Code of the Russian Federation
in terms of the classical civil categories of invalidity and
voidability and evaluates possible negative outcomes
produced by its application by the courts. The author arrives
at the conclusion that despite the literal text of the said
amendment, the comprehensive interpretation of norms of
the Civil Code does not let one talk about any general rule
of voidability of illegal transactions or presumption of their
voidability.
Keywords:
transactions, juristic act, invalidity of transactions, invalidity, voidability, illegal transactions
K.I. Zaboev. On the Application of the Art. 168 of the Civil Code of the Russian Federation and on Public Interest The article touches upon the notion of «public interest»,
since the Art. 168 of the Civil Code states that a deal aimed
at the goal contrary to public interest shall be regarded as
insignificant. Having explored the matter of this concept, the
author comes to a conclusion that a breach of public interest
does not necessarily cause the invalidity of a transaction.
He analyses general provisions of the Civil Code on the
invalidity of deals, paying attention to the violation of rights
and interests of third parties as the grounds for recognising
a deal as invalid, and gives his opinion on their application.
Keywords:
invalidity of deals, insignificant transactions, voidable transactions, public interest
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A.Yu. Zezekalo. What’s New in the Rules on the Invalidity of Legal Transactions Made under Mistake The article describes recent amendments to the rules
of rescission of transactions in the Russian Civil Code.
The author scrutinises the renewed provisions of the Russian
Civil Code and underlines the apparent impact of the European
legal doctrine on it combined with direct introduction of
several foreign models. The legislature departs from the firm
adherence to the numerus clausus of several categories of
operative mistake and resorts to approaches of more general
character like the causality criterion. Thе categorisation of
mistake became more complex. Among the newly introduced
instances of operative mistake one should not overlook
mistake as to the person of the contracting party and mistake
as to the crucial circumstance mentioned by the mistaken
party in the declaration or otherwise apparent to the other
party. An error occurring in the expression or transmission
of a declaration is now also in the list of operative kinds.
The remedies available for the case of mistake include now
adjustment of the transaction. Meanwhile there are some
issues to be discussed later on.
Keywords:
invalidity of transaction, vitiated will, error, mistake
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M.A. Tserkovnikov. Invalidity of Transactions in the New Explanation Given by the Supreme Court of the Russian Federation It is a known fact that the revised provisions on invalidity of
transactions turned out to be different from the regulations
conceived by the authors of the Concept of Development
of the Civil Legislation. Therefore it seems to be highly
important that the reformed rules were explained in the
Resolution adopted at the Plenary Session of the Supreme
Court of the Russian Federation No. 25 dated 23 June 2015
«On the Application of Certain Provisions of Section I of
the First Part of the Civil Code of the Russian Federation».
The article provides a brief review of certain explanations
thereof.
Keywords:
invalidity of transactions, voidable transactions, invalid transactions
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V.A. Belov. Civil Nature of Transactions Constituting an Abuse of a Dominant Position Federal Law No. 135-FZ dated 26 July 2006 on the
Protection of Competition contains a wide range of various
limitations and restraints, including the prohibition on
abuse of a dominant market position. Some of the actions
qualified as similar abuses are represented by transactions,
primarily by contracts. What are the consequences of such
transactions? Are they valid or void? If they are void, are
they insignificant or voidable? Despite the Law on the
Protection of Competition regulates different transactions,
it gives no answer to these questions.
Keywords:
void transactions, insignificant transactions, voidable transactions, transactions relevant to violation of law
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D.I. Stepanov. New Legal Regime for Challenging Major Transactions: Reform for the Sake of Reform? Under the heading ‘major transaction’ sale or lease of all
or substantially all corporate assets requires pursuant to
current Russian corporate statutes approval either by board
of directors or by shareholders. The essay provides detailed
in-depth analysis of pending bill introducing new legal regime
for this type of corporate transactions, though the analysis
below is limited mostly to issues of shareholders’ derivative
claims to declare such a transaction void. The author argues
that proposed amendments are excessive and suboptimal as
compared to current legal regime; the only thing which might
be feasible to consider for any changes is a set of narrowly
tailored amendments in order to shift burden of proof from
claimant to defendant and other, quite technical improvements
proposed by the bill and analysed in this paper, apart from
that no enhancements are needed. The paper concludes with
some broader observations which might be applicable to
transactions with conflict of interests when directors breach
fiduciary duty of loyalty or usurp corporate opportunities.
Keywords:
major transactions, related-party transactions, minority rights
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Press Release
Theory and practice
V.A. Alexeev. Is Independence in Turnover a Criterion for Classifying Property as Real Property? The author substantiates the opinion that independence
in turnover should not be considered as a criterion for
classifying property as real property. In this regard, such
concepts as the result of works aimed at the improvement
of a land plot, a part of a principal, an appurtenance to and a
part of a unified real property complex have been considered.
Keywords:
attributes of real property, improvement, compound property, principal and appurtenance, unified real property complex
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A.A. Kostin. Certain Issues regarding Examination of Evidence Obtained Abroad The article addresses several issues concerning admissibility
of evidence obtained abroad at the trials pending with Russian
courts. It includes a detailed analysis of the lex fori principle
and its implementation towards examination of evidence
obtained abroad (including the matter of interrelation
between national procedural and applicable foreign law
regarding the evaluation of such evidence). Taking regard
to the analysis of lex fori principle the article discusses the
following issues: a) admissibility of foreign documentary
evidence; b) court-appointment of examination of physical
evidence and admissibility of foreign expert-witnesses
opinion; c) manner of taking evidence form the foreign
witness.
Keywords:
international civil procedure, legal assistance in civil and matrimonial matters, examination of evidence abroad, taking of evidence abroad, affidavit
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A.T. Bonner. Artificial Insemination: Achievements and Mistakes of the Medicine and Broken Lives This article is the concluding part of the research on
the legal problems following the use of assisted
reproductive technologies in Russia. The author continues
to analyse courts practice and reveals the collisions caused
by the insufficient regulation of this delicate sphere.
Special attention is paid to the issues of the anonymity
of gamete donors. Finally the author cites key provisions
of the Belarusian law on the use of assisted reproduction
technologies and claims that this experience could be
adopted by Russia.
Keywords:
artificial insemination, assisted reproduction, implantation of embryo, surrogation, paternity, family law
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Foreign experience
M.J. Schermaier. The Doctrine of Mistake in the European Legal Thought The possibility to void a contract or a deed on the grounds
of mistake is one of indisputable rights of contemporary civil
law. This is a point of collision between the theory of the will
and the theory of confidence protection. Still, to understand,
why this rule exists and what compromise between will and
confidence has been found in the codification, one should
be aware of philosophical and theological models affecting
the doctrine of mistake. These models demonstrate
the European heritage being the basis for contemporary civil
law systems.
Keywords:
deals, transactions, history of the European law, mistake in deal, doctrine of mistake, theory of will, theory of confidence, philosophy in private law, theology in private law
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P. Garbarino. Critical Thoughts on the Invalidity of Illegal Deals on Cultural Property in Italy This publication is the translation of an essay by Prof. Paolo
Garbarino on the problems of the invalidity of deals on
cultural property effected in contradiction to public order in
the Italian law. In terms of the recently amended provisions
of the Russian Civil Code on the invalidity of deals the
article becomes of particular interest for a Russian reader
since it touches upon essential issues of the doctrine of
the invalidity of legal acts. In particular, the author critically
regards as ill-conceived the position taken by the Italian
courts considering the invalidity of illegal deals as “relative”
so no one but the state can refer to it. The author definitely
proves that such restricition both contradicts to the legal
definition of invalidity given by the Italian Civil Code and,
being synthetic, does not meet the social demand.
Keywords:
cultural property, Italian law, transactions, invalidity of transactions, insignificance of transactions, relative invalidity
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