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ARCHIVE FOR 2015    RUSSIAN

Декабрь 2015

CONTENT

 

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

S.A. Karelina, I.V. Frolov. Problems of the Development of Legal Policy on Consumer Bankruptcy in Russia and Their Influence on the Mechanisms of Personal Bankruptcy
The article deals with the issues of the development of legal policy on consumer bankruptcy in Russia and their influence on the mechanisms of personal bankruptcy. It covers basic misconceptions about personal bankruptcy, particularly its goals, terms and the real objective of its introduction in the Russian Federation. The authors have analysed the legal nature of bankruptcy of citizens and legal models of their insolvency and thus have come to the conclusion that the current structure of personal insolvency does not fully secure the recovery character of bankruptcy procedures available for the citizens.
Keywords: legal policy, personal bankruptcy, bankruptcy of citizens, consumer bankruptcy, bankruptcy myths, insolvency, irredeemable debt, unsoundness
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E.Yu. Olevinsky. Legal Regulation of Personal Bankruptcy — Briefly on the Essentials
The author focuses on the main issues related to the use of the Russian legislation on personal bankruptcy which came into force on October 1, 2015, particularly in light of the proposed amendments to the law.
Keywords: personal bankruptcy, consumer bankruptcy, common property of spouses
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P.V. Khlyustov. Matrimonial Property: the Issues of Formation of the Bankruptcy Estate of an Individual Bankrupt
The article discusses the main peculiarities of formation of the bankruptcy estate of an individual bankrupt in case his or her properties are considered marital. The author focuses on practical cases rather than academic issues. The article analyses the current legislation on the status of family assets in bankruptcy proceedings as well as the ways to develop legal regulation and judicial practice.
Keywords: personal bankruptcy, matrimonial property, marital property, bankruptcy estate

 

E.V. Mokhova. “Bankruptcy Tourism”: Migration of Debtors in the search of a Better Country for Personal Bankruptcy and Debt Relief
The article explores “bankruptcy tourism” which is the individual debtor’s choice of the most preferred country for his bankruptcy. The author highlights causes of the phenomenon, principles of its evolution and provisions for its occurrence. She notes that regulation of international jurisdiction of insolvency cases and mechanisms of foreign bankruptcy recognition significantly affects the growth of “bankruptcy tourism” which is confirmed by the experience of the European Union. The article provides a research of prospects for migration of the Russian debtors seeking for “bankruptcy tourism” and evaluates the corresponding legal consequences for the Russian jurisdiction. The analysis of foreign approaches to the issue of recognition of postbankruptcy discharges for individuals opens up the possibility to evaluate the prospects for their use in Russia. The author points out that despite it is desirable to acknowledge debt reliefs issued in a foreign jurisdiction, the countries reserve their right to block their cross-border effect in certain cases.
Keywords: insolvency, consumer bankruptcy, personal bankruptcy, bankruptcy tourism, COMI, Centre of Main Interests, cross-border insolvency recognition, post-bankruptcy discharge
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Judicial practice. Comments

T.A. Tereshchenko, O.E. Ganyushin. Proactive Solution: the Supreme Court Speaks out on Certain Issues of Insolvency (Bankruptcy) Procedure for Citizens
The article provides practical commentaries on a few clauses of the new Plenary Resolution of the Supreme Court of the Russian Federation dated 13 October 2015 No. 45 “On Certain Issues Regarding Introduction in Action of Procedures Applied in Cases on Personal Bankruptcy (Insolvency)”. The authors offer certain suggestions for the development of law enforcement as well as critics thereof.
Keywords: insolvency (bankruptcy) of citizens, bankruptcy procedures, debt restructuring, misuse of right
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G.S. Vasiliev. Who is the Owner of Waste Products — the Supreme Court Turns the Practice Upside Down
The article provides a critical analysis of the Decree of the Supreme Court of Russia dated 4 February 2015 No. 301- KG14-1670 compared with the earlier judicial practice. According to the Court the fee for negative influence on nature shall be paid by the entity that has produced waste. The Court adheres to the idea of perpetual preserving of the right on the generated waste. Still, this thesis hasn’t been proven by any means and contradicts to the Article 223 of the Civil Code of the Russian Federation and the Decision of the Constitutional Court of the Russian Federation dated 5 March 2013 No. 5-P. It also deviates from one of the main principles of property law, namely the rule that any property right exists only in relation to a specified material object. This means the Court disregards the will of parties to a contract as to allocation of their rights and duties concerning waste products. Finally the argued Decree turns the previous court practice upside down and makes the law indefinite.
Keywords: waste, environmental impact fee, transfer of ownership
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Discussion Board

P.A. Skoblikov. Petty Theft as Cruel Deception: the Conceptual Statement by the Lawmaker and its Analysis
One of the most notable events in the sphere of criminal law and policy of this autumn is the draft law considered by the State Duma and proposing to regard the theft of less than five thousand roubles (currently one thousand roubles) as petty. Is this decision fair and reasonable? Have the adherents of the draft law found balanced and convincing arguments for it? What consequences may follow the adoption of this law? Could there be any other solutions suggested? The author presents his answers to the questions.
Keywords: nonqualified larceny, decriminalisation of crimes, repeated larceny, repetition of crimes, professional criminality, efficacy of punishment, amnesty, contemporary criminal policy
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Theory and practice

A.A. Ivanov. Economic Grounds for Real Rights
The article is devoted to the civil law reform in the Russian Federation in light of real rights. The delay in adoption of the section of the Civil Code regarding real rights made certain public leaders and lawyers doubt the intention of the lawmaker to reform the correspondent part of the Code. The article presents additional arguments for the thoroughgoing reform of the Civil Code. Main arguments are primarily based on the analysis of four economic needs for one or several real rights. The author insists that these needs could only be satisfied by the recognition of the absolute and not relative rights along with the fixation of a closed list of such rights.
Keywords: real rights, civil law reform
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O.M. Oleynik. Agreement on Transfer of Executive Powers of a Company: Issues of Qualification and Application
The key issue covered by the article is shaping, distribution and transfer of powers of the sole executive body of a business entity. The author touches upon the matter of such powers regarded as the unity of rights, obligations and encumbrances creating the competence of a correspondent body constituting the capacity of a legal entity. The agreement on transfer of sole executive powers of a company and the admission to the certain types of activity are also subject to the analysis.
Keywords: corporate body, executive body of an enterprise, corporate management, managing company, transfer of executive powers
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G.V. Tsepov. Is it Possible To Judge anyone for a Folly? Business Judgment and its Objective Evaluation
The article is devoted to an objective assessment of business judgment. The author analyses the concepts of reasonableness and good faith of director’s activities in the interests of the organisation, and concludes that the relationship between the organisation and the director becomes more playing with the increase of the uncertainty. Due to the growing complexity of the economic system, including a sharp rise in the scale and speed of information exchange, the use of traditional legal tools is extremely limited.
Keywords: business judgment, reasonableness, good faith, interest, entrepreneurial risk, director
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N.V. Kozlova, A.S. Vorozhevich. Well-known Trademarks: the Concept and Peculiarities of their Legal Protection
Reputable brands hold a specific place among trade marks. They do more than individualise certain goods (services), they are also a symbol of special status and image which demands for the expansion of their legal protection. The purpose of the authors is to identify both the essential features of such trademarks and effective mechanisms to protect the interests of right holders.
Keywords: trademark, goodwill, violation of exclusive rights, abuse of rights, dilution of trade marks
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N.G. Eliseev. Jurisdiction Clause: How Should it be Regulated in the Unified Code of Civil Procedure of the Russian Federation?
Having considered foreign experience, the author critically evaluates the national court practice of admission of a contract clause regarding the jurisdiction over cases potentially arising out of the contract with a consumer. He proves that this clause contradicts the current law as well as infringes upon consumers’ rights. Finally, the author offers certain suggestions on the draft of the unified Code of Civil Procedure of the Russian Federation.
Keywords: jurisdiction, freedom of contract, contract of adhesion, bank deposit agreement, consumer protection, estoppel

 

D.I. Smolnikov. Myths about Standards of Proof
The author addresses himself to standards of proof, exploring three myths that are commonly associated with them. He concludes that standards of proof are no closer to the truth than the inner conviction and that they are not as objective as they may seem to be.
Keywords: standards of proof, inner conviction, sufficient evidence
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