ARCHIVE FOR 2015 RUSSIAN
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Ноябрь 2015
CONTENT
FREE TRIBUNE
Vadim Belov The 25th Ruling of the Plenum: Interpretation or… Lawmaking? Almost one century ago the Civil Law Review journal published the article Lawmaking Under the
Guise of Interpretation of Laws by N.I. Lazarevsky. The article urged contemporary constitutional
states to abstain from using so called abstract interpretation of laws, i.e. an interpretation that is not
connected with the consideration of a certain case and at the same time obligatory for everyone for
indefinite future. One of the last big causes to recall this warning is the 25th Ruling of the Plenum of
the Supreme Court of the Russian Federation of 23.06.2015 «On Application of Certain Provisions of
Section I of the First Part of the Civil Code of the Russian Federation»: most conservative estimates
demonstrate that in its 133 sections it has more than 50 rules unknown to the Civil Code of the Russian
Federation. Although one could agree with the substance of some new rules, it is hardly correct that
lawmaking is performed not only by the legislative but also by the supreme judicial authority.
Keywords:
interpretation of law, void transactions, obligation, restitution, agency
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Anton Tomsinov Assurance of Facts and Reimbursement of Losses under Russian Law in Comparison with Representations, Warranties and Indemnity under English and American Law Russian courts have always been reluctant to enforce contractual obligations that were based
on assurance of facts or could be regarded as reimbursement of losses that was not liability in
technical sense. This happened despite the fact that contractual clauses to such effect are generally
in compliance with the principle of freedom of contract and useful for business. Now situation
has changed. Recent amendments to the Russian Civil Code included assurance of facts and
reimbursement of losses into its text. It is not clear, however, how courts will interpret these changes.
New rules of the Civil Code require detailed elaboration in contracts but the courts has always been
wary to give too much contractual freedom to the parties. The text of the new articles 431.2 and 406.1
of the Russian Civil Code gives ground to conclusion that in general new institutes of Russian law are
close to representations, warranties and indemnity under English and American law. The text of these
articles does not limit freedom of contracting parties save for several exceptions. The reason for
concern exists, however. Some issues that arise in modern contractual practice in foreign countries
would require significant deviation from the default rules of the Civil Code and, therefore, the courts
would need to rely on the terms of contracts alone. The fact that the law does not mention such
options (even in the form of general allowance) might seem suspicious to the courts that could as a
consequence ignore relevant clauses or strike them off.
Keywords:
assurance of conditions, reimbursement of losses, freedom of contract
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Sergey Budylin The Precedent at a Crossroads. A Brief History of Judicial Law-Making in Russia Over the last decade the judicial precedent came to the forefront as a source of Russian civil law,
mostly due to the activity of the Supreme Arbitrazh Court of the Russian Federation (VAS). What
has changed after the fulminant 2014 judicial reform in the course of which the VAS was disbanded?
Does the reform mean an untimely death of the precedent? The author believes that the precedential
system continues to exist in the new situation, albeit in a truncated form. The Chamber for Economic
Disputes of the Supreme Court of the Russian Federation has become a de facto heir of the VAS
Presidium. However, for judgments of the Chamber to gain the same authority as VAS judgments,
and with it a similar precedential force (de facto if not de jure), the technical quality of the legal
reasoning found in the Chamber judgments must be considerably improved.
Keywords:
Russia, Supreme Arbitrazh Court, Supreme Court, judicial reform, sources of law, precedent, legal reasoning
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Vadim Alexeev The Concept of a Land Plot and Its Definition in Russian Legislation The article analyses the new definition of a land plot that was included in article 6 (section 3) of the
Land Code of the Russian Federation in 2014. The former definition required the borders of a land
plot to be established according to a certain legal procedure. This requirement is omitted in the
new definition. Instead, the law regards as a land plot a part of the land surface that has individual
characteristics. The article suggests that it does not really change the concept of a land plot since the
position of its borders is the only feature that could individualise it. A new version of the definition of
a land plot is proposed in the article.
Keywords:
land plot, immovable property, borders of a land plot
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Evgeniy Suvorov On Certain Issues of the Bankruptcy Moratorium and Its Restrictions under Russian Law The article considers issues related to the mechanism that protects the value of an insolvency estate
against individual action by one of its creditors (moratorium, suspension, stay). Under Russian law,
this mechanism exists in three forms: prohibition of individual actions against debtor (1), prohibition
of performance by debtor (2), prohibition of securities (3). The author describes the essence of
these types of prohibitions, which follows from the main principle of bankruptcy law, i.e. the pro rata
principle. There are certain exclusions to these bans, however. The article explains these exclusions
and analyses them. The author admits that such exclusions are possible as long as they do not
violate the pro rata principle, i.e. do not lead to the satisfaction of a creditor to the detriment of other
creditors.
Keywords:
bankruptcy moratorium, bankruptcy, bankruptcy proceedings
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