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ARCHIVE FOR 2016    RUSSIAN

Май 2016

CONTENT

 

 

Maria Erohova Refusal to Apply Limitation Period Due to Abuse of Right by Defendant
Case comment on the judgment of RF SC No. 301-ЭС15-5443, 26 January 2016
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Dmitry Nekrestyanov Recovering Damages from a Partner in a Development Project
Case comment on the judgment of RF SC No. 309-ЭС15-13936, 3 March 2016
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Sergey Ovsyannikov A Case of Very Valuable Stiсkers
Case comment on the judgment of RF SC No. 307-КГ15-14266, 21 March 2016
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Timur Ochkhaev Impracticability to Use the Land According to Its Purpose and Rescission of a Lease
Case comment on the judgment of RF SC No. 305-ЭС15-15053, 3 March 2016
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Vladislav Starzhenetskiy A New Method of Resolving Non Use Cancellation Actions Concerning Trade Marks
Case comment on the judgment of RF SC No. 300-ЭС15-10765, 11 January 2016
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FREE TRIBUNE

Anton Ivanov Legal Problems Arising from Monetary Clauses in Contracts
The article considers quite an important problem that has recently appeared in Russian cases. How should courts treat monetary clauses in contracts, i.e. clauses that link price in Russian rubles with their exchange rate to US dollars? Russian Civil Code explicitly allows such clauses. Moreover, payments under such contracts are in rubles and, therefore, do not violate currency control regulation. The problem is that from the beginning of 2014 the price of rubles has fallen more than twofold. Payments under monetary clauses have risen accordingly. It became very difficult to perform many contracts and thus parties obliged to pay have started searching legal solutions to improve their position. In Russian law, such a solution is provided by article 451 of the Civil Code of Russia which essentially contains Latin maxim clausula rebus sic stantibus. The article argues that currency crisis of 2014-2015 does not provide grounds to use this article. This is because the price of rubles had fallen frequently in previous periods and parties to contract should have envisaged it. There are no other grounds to reconsider the amount of payments due under monetary clauses.
Keywords: significant change of circumstances, rescussion of contract, amendment of contract
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Artem Karapetov Indemnity Clause: Commentary on Article 406.1 of the Civil Code of the Russian Federation
The article analyses new provision of the Russian Civil Code on indemnification of losses (article 406.1). The author considers how this article was enacted and purposes of this article. The article also gives a general description of the ways in which this provision could be applied. In addition, the article provides a detailed comment on article 406.1 of the Civil Code and its recent interpretation by the Supreme Court of Russia, as well as discusses main problems of the application of this article.
Keywords: indemnification of losses, indemnity
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Roman Bevzenko Operation Fake Papers. On the Problem of the Demolition of Unauthorized Constructions
The article analyses legal issues of the demolition of unauthorised constructions according to administrative (non-judicial) procedure. The author considers specific issues of real property law, including the effect of an entry on a register on the creation of the right of ownership to an immovable object.
Keywords: immovable property, registration of title to immovable property, unauthorised construction
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Vladislav Savinykh Commentary on the Ruling of the Plenum of the Supreme Court of Russia on Challenging Cadastral Value: Discovering Conceptual Basis
The article comments on the Ruling of the Plenum of the Supreme Court of Russia on the challenging of cadastral value. The aim of the comment is to reveal the general conceptual basis of the Ruling that determines approach to distinct legal problems. The analysis of different issues resolved in the Ruling (including, inter alia, persons entitled to challenge the cadastral value, time limits for bringing such claims, retrospective effect of its adjustment, remedies available to claimants) leads to the conclusion that the Supreme Court considers the cadastral value as the base for taxation, despite the fact that the cadastral value has many other applications. This conclusion reveals the foundation of the Supreme Court's interpretation and provides tools for resolution of other problems that are not covered by the Ruling.
Keywords: cadastral value, challenging cadastral value, land tax, property tax
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Yury Mirzoev, Zaurbek Akhmetov Tax Authorities May not Comply with All Judgments
This article is based on the judgment of the Chamber for Economic Disputes of the Supreme Court of the Russian Federation No. 305-КГ14-5758 of 14 April 2015 (case No. A40-181764/13). The judgment considered the effect of judicial suspension of a decision of tax authorities to charge additional tax. The question was whether such a suspension also lifts provisional measures that were applied by tax authorities according to article 101 of the Tax Code of Russia. The Court answered this question in the negative. The article argues that the Court's analysis is flawed, violates tax legislation and is in variance with the purposes of the modern tax legislation.
Keywords: interim measures, suspension of a judgment, decision of tax authorities to charge additional tax
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