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ARCHIVE FOR 2016    RUSSIAN

Март 2016

CONTENT

 

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

R.S. Bevzenko. The Concept and the Origin of real Security
The paper deals with the reform of the law on real security that came into force on July 1, 2014. The author analyses the notion of real security as a right in rem, its effects (priority of the security holder, effectiveness against third parties etc.), and other basic principles of the legislation on real security that are laid down in the articles 334 and 334.1 of the Russian Civil Code.
Keywords: real security, mortgage, statutory pledge, attachment, security
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L.Yu. Vasilevskaya. Legal Qualification of Pledge Management Agreementrch
The paper is devoted to pledge management agreement — a new institution of Russian civil law. On the basis of the analysis of different rules on pledge in the Civil Code of the Russian Federation, the author substantiates her opinion on the legal nature of this kind of agreement, considers the scope of its application and peculiarities of legal regulation, and, finally, allocates its basic distinctive features, drawing attention to the conflicting provisions of the Code.
Keywords: pledge, pledge management, plurality of creditors, pledger, pledgee, pledge manager, representation
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E.A. Ostanina. On the Independence of the Guarantee and the Demand of the Principal to the Beneficiary
The new court practice does not allow the guarantor to go into the details of fulfilling the obligation secured by the guarantee. What impact would it have on the rights and duties of the debtor in this kind of obligation? Will it cause unjust losses for him? The paper looks for answers to these questions.
Keywords: independent warranty, unjust enrichment, damage
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A.V. Evdokimov. Categories of Independent Guarantees
The paper presents the systematisation of independent guarantees and the analysis of their features. For the purposes of creating a universal approach the author proposes to divide guarantees into types and kinds, thus making it possible to delimit the types of the guarantees which are the most well-established in practice and consist of performance bond, payment bond, retention bond, warranty bond and tender bond. In addition to the widely accepted kinds of guarantees, the new classifications are presented. They let the author lay special emphasis on other important features of the guarantees. Clear systematisation of guarantees provides for a better clarification of the rules for regulation of each certain group.
Keywords: independent guarantee, types of guarantees, kinds of guarantees, typology of guarantees, classification of guarantees
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T.A. Tereshchenko, O.E. Ganyushin. “Convict Pledge”: Some Issues of Law Enforcement
The paper covers problems, arising from the application of Article 334 of the Russian Civil Code, in light of bankruptcy procedures. Item 5 of the named Article regulates the socalled convict pledge, granting all the rights of a pledgee to a creditor or any other entitled person, in whose interests the debtor’s property was attached according to the Article 174.1 of the Civil Code. On the basis of courts practice and probable legal interpretations, the authors evaluate the pros and cons of regarding demands secured both by “convict pledge” and by ordinary pledge as preferred, and show that current interpretation of the Articles 174.1 and 334 (5) of the Civil Code might be different when applying to bankruptcy relationships. The authors conclude that at least grounds for attachment of property should be distinguished in order to prevent the abuse of the rights secured by “convict pledge”.
Keywords: “convict pledge”, preferred claims of the creditors, preferential satisfaction, bankruptcy
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Theory and practice

M.A. Rozhkova. May the Court for Intellectual Property Rights Request Legal Opinions, or iura novit curia?
The author critically evaluates the practice of the Court for Intellectual Property Rights of making requests for legal opinions on cases. It is proven that such practice violates the rights of the parties to a fair trial guaranteed by the European Convention on Human Rights and by the Constitution of the Russian Federation, and contradicts to the principles of the Arbitrazh Procedure Code of the Russian Federation.
Keywords: request for legal opinion, Court for Intellectual Property Rights, iura novit curia
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Press Release

 

Theory and practice

N.G. Solomina. Dynamics of the Obligation in terms of the Rules on Limitation Period
On the basis of certain rules regarding the limitation period, the author shows the features of fulfilling principal and accessory obligations. This paper consistently defends the academic issues about inadmissibility of any deformation of the obligation as simple legal communication from the moment of its violation and about direct dependence of accessory obligations on the principal obligation. In this regard, the author criticises certain revised interpretation on the limitation period put by the Supreme Court of the Russian Federation.
Keywords: limitation period, principal obligation, accessory obligations, additional requirements, liability, subjective right, obligations in the legal relationship
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S.V. Nikitin. Problems of Reforming the Legislation on Administrative Liability of Legal Entities in the Sphere of Economic Activity
The author shows the need for a substantial reform of the legislation on administrative violations in the sphere of economic affairs. The reform might be carried through excluding the elements of of the non-administrative offence from the Russian Code of Administrative Offences, differentiating administrative sanctions and grounds for imposing administrative liability on legal entities, and, finally, bringing such kinds of administrative cases under the jurisdiction of arbitrazh courts.
Keywords: administrative offences, administrative liability, draft of the Code of Administrative Offences, liability of legal entities
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A.A. Anufrieva. Protection of Foreign Investments in Financial Turmoil
By entering into international investment treaties states assume certain obligations with regard to investment projects of foreign companies and individuals, at the same time limiting their capabilities to regulate certain fields of national economy. That being said, interference with such fields and sectors becomes inevitable in the times of economic instability, of which current economic crisis serves a good example (so as previous economic turbulences in the end of XX and beginning of XXI century). Do such anti-crisis measures adopted by host states lead to the breach of their obligations under international investment treaties? This paper deals with the issue of lawfulness of extraordinary regulatory measures taken by host states as a reaction to economic crisis, from the standpoint of international investment law.
Keywords: foreign investments, global economic crisis, expropriation, fair and equitable treatment, national treatment, crisis response measures
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A.A. Trefilov. The Correlation of in dubio pro reo and in dubio pro duriore principles in Criminal Proceedings of Switzerland and Russia
On the basis of normative and doctrinal sources, the author considers the principles in dubio pro reo and in dubio pro duriore on the example of the Swiss and Russian law enforcement. It is shown that in criminal proceedings of the two states they balance each other and cancel each other out. The principle in dubio pro duriore is not developed in Russian legal doctrine yet, but it is widespread in practice.
Keywords: presumption of innocence, initiation of criminal case, indictment, evidence, pre-trial proceedings, examination of a case on the merits, criminal proceedings in Switzerland, in dubio pro reo, in dubio pro duriore
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Foreign experience

O.S. Zharkova. Interpretation of the German Civil Procedure Rules on the Resumption of Court Proceedings on the Basis of the ECHR Decisions as Compared to the Domestic Jurisprudence
The author addresses the legislative developments on the revision of judicial decisions on the basis of ECHR judgments, as well as the practical application of these rules by German courts of general and special jurisdiction. The article touches upon the correspondent practice both of the German Constitutional Court and of the Constitutional Court of the Russian Federation on the use of the similar rules (§ 4 item 4 Art. 392 of the Code of Civil Procedure of the Russian Federation). The comparison of the decisions of the courts of the two countries shows that the efforts of individuals to struggle for their right to retrial (in German: Kampf ums Recht der Wiederaufnahme des Verfahrens) in Germany and Russia are remarkably similar. The law enforcement officials in both countries adhere to the literal content of the rules and avoid the expansion of its activities in time, in personal scope and in other parameters.
Keywords: German civil procedure, grounds for revision, revision of a judgment, decision of ECHR, European Convention on Human Rights, the right to a fair trial, legal consequences of the decision of the ECHR
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