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ARCHIVE FOR 2016    RUSSIAN

Июль 2016

CONTENT

 

 

Roman Bevzenko Don't Make My Pines Laugh!
Case comment on the judgment of RF SC No. 306-ЭС15-20155, 2 June 2016
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Alexander Latyev In Defence of the Mirror Principle
Case comment on the judgment of RF SC No. 304-ЭС15-18474, 23 May 2016
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Dmitry Smolnikov Compensation for Interim Measures
Case comment on the judgment of RF SC No. 308-ЭС15-18503, 6 May 2016
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FREE TRIBUNE

Konstantin Sklovskiy Problems of Application of Art. 451 of the Civil Code of the Russian Federation: Currency Clause and Balance of Parties' Interests
Currency clause is a way to reduce the risk of inflation in the contracts with a long lifespan. The condition is unfair though, because despite the fact that both sides expect inflation (devaluation) of the domestic currency, the risk of inflation is completely shifted to the side of the debtor's monetary obligation. Sudden change of the exchange rate that puts one of the parties in a very difficult position gives grounds for termination (change) of the contract, despite the currency clause. Economic stability cannot be secured if the courts refuse to revise those agreements in which the relevant equivalence of parties positions is impaired so significantly that it is beyond party's ability to perform it. As a result the debtor loses the opportunity to perform the contract without incurring additional expenses. The situation is incompatible with the purpose of the contract and the conditions parties relayed on when it was concluded.
Keywords: currency clause, termination of contract due to substancial change in circumstances, frustration of contract
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Marina Rozhkova Discussing the Issue of whether the Court for Intellectual Rights Needs Technical Specialists and Advisors
The article analyses the competence of the Court for Intellectual Rights and considers whether this Court really needs consultation of technical specialists and advisors when it resolves a case. The author criticises the settled practice of the Court to ask for external legal opinions in certain cases. These arguments are strongly supported by the extensive use of theses from the ICC Report on specialised IP jurisdictions worldwide.
Keywords: Court for Intellectual Rights, intellectual rights, arbitrazh procedure, court specialist, court advisor
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Alexander Yagelnitskiy Revisiting the Transfer of the Right to Compensation for the Protraction of Cases
Commentary on point 7 of the Ruling of the Plenum of the Supreme Court of the Russian Federation No. 11, of 29 March 2016 «On Some Issues Arising in Proceedings for Compensation for the Violation of the Right to Trial within a Reasonable Time or Right for the Performance of a Judicial Act within a Reasonable Time» The article analyses point 7 of the Ruling of the Plenum of the Supreme Court of the Russian Federation No. 11, of 29 March 2016 «On Some Issues Arising in Proceedings for Compensation for the Violation of the Right to Trial within a Reasonable Time, or Right for the Performance of a Judicial Act within a Reasonable Time». In this point, the Supreme Court prohibits transfer of the rights mentioned in the heading of the Ruling. The wording of the point is flawed and therefore could have different meanings. First, if one assumes that the draftsmen's goal was to prevent voluntary assignment of these rights their position lacks sufficient theoretical grounds. Such a prohibition seems to be connected with the ban on the assignment of the right to compensation for psychological injury. But one should not forget that the compensation for court protraction also covers pecuniary damage. Moreover, the ban on the assignment of the right to compensation for psychological injury itself needs persuasive explanation. Secondly, the Supreme Court seems to intend to stop the transfer mortis causa of the right to the compensation for case protraction. This attempt does not have any dogmatic or economic justification.
Keywords: compensation for case protraction, damages, psychological injury, assignment of right, inheritance
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Ivan Stasyuk New Facts and New Evidence in Establishing of Identity of Claims
The article deals with controversial issues of the rules of the claim preclusion. The author points to the need to distinguish between the new cause of action and the introduction of new evidence while maintaining the same cause of action. The article argues that the facts that existed at the time when a claim was failed could be used to substantiate subsequent claims.
Keywords: cause of action, evidence, claim preclusion
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Evgeny Gorbunov Corporate Directors’ Legal Framework Evolution: Some Notes to Company Law Reform in Russia
In the article the management organization, which acts as a sole executive body of a Russian commercial company, is studied in comparative legal and historical contexts. In the Soviet economy administrations of industrial associations were the “prototype” of management organizations. However such administrations did not act as directors of enterprises and production associations belonged to industrial associations. Management organization has significant similarities with corporate directors in English and similar jurisdictions. Sanctioned at the beginning of the 20th century in the case law, corporate directors were criticized and that led to substantial restriction of the possibility of their use in English company law. The author does not consider it necessary for Russian law to follow English law and to deploy a general prohibition of corporate directors. At the same time, the author makes some suggestions to improve the legal framework of corporate governance involving a management organization.
Keywords: corporate governance, managing organization, representation of a company, corporate director, corporate representation, managing director
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Aleksander Shelkunov Features of VAT Taxation of Taxable and Non-Taxable Transactions
When a taxpayer makes both VAT taxable and non-taxable transactions that raises question of how he should offset VAT related to these transactions. The article analyses Russian rules that govern VAT offset in such situations and compares these rules to the regulation in the European Union.
Keywords: value-added tax, VAT offset, VAT deductions, VAT taxable
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Daniil Antonov, Dmitry Martsinkovskiy Problems of Public and Civil Liability of Banks for Failure to Fulfill the Decisions of Tax Authorities to Suspend Operations on the Accounts of Taxpayers and Other Subjects of Tax Relations
The article consists of two parts. The first part considers the nature of the liability of banks for failure to fulfill the decisions of tax authorities to suspend operations on the taxpayer's account (article 134 of the Tax Code of Russia). The authors argue that this liability belongs to the domain of public law. The second part analyses practical problems of the application of this article. In order to provide full compensation for the bank's inaction, the Russian courts try to use the private law mechanism of the recovery of damages. The article demonstrates that this means is not adequate. It is suggested that the situation could be improved by adding special rules on the compensation in the Tax Code.
Keywords: tax liability, compensation of damages, suspension of operations on the account of a taxpayer
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