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ARCHIVE FOR 2016    RUSSIAN

Август 2016

CONTENT

 

 

Vsevolod Argunov Breaking Legal Foundations or Just an Ordinary Correction of Legal Purism in Courts?
Case comment on the judgment of RF SC No.306-ЭС15-14024, 13 April 2016
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Vadim Zaripov Incentive Payments in Supply Contracts and VAT
Case comment on the judgment of RF SC No. 308-КГ15-19017, 22 June 2016
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Vadim Belov A Case on Damages Caused by African Pig Plague
Case comment on the judgment of RF SC No. 305-ЭС16-1712, 9 June 2016
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Raul Sayfullin Accessory Nature of Surety Agreement and Charge Becomes Weaker
Case comment on the judgment of RF SC No. 308-ЭС16-1443, 14 June 2016
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FREE TRIBUNE

Anton Ivanov Business and Law
The article considers general issues of the interaction between different branches of law and business. The business here implies not only entrepreneurs and businessmen but also commercial relations as a whole. The analysis is focused on the relationships between business and different branches of state — legislative, executive and judicial. Some special issues are discussed in greater detail: the reform of the Civil Code of Russia, new rules on so called business deoffshorisation, as well as specific procedure for prosecution of businessmen.
Keywords: business, regulatoin, deoffshorisation, reform of the Civil Code of Russia, separation of powers
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Alexandra Makovskaya Reform of Contract Law in France. New Provisions of the French Civil Code
The article provides an overview of the amendments to the French Civil Code that were introduced by the reform of contract law. The changes will enter into force on October, 1, 2016. They cover general provisions on contracts and obligations. One of the most important changes is the abandonment of the doctrine of causa in contracts. This doctrine was regarded as unsatisfactory because it led to unpredictable results. Crucially important for French law are also changes that enable one of the parties to certain contracts to determine its price and recognition that change of circumstances could lead to modification of contract. Furthermore, as a result of the reform, general provisions on obligations for the first time appear in the French Civil Code.
Keywords: French Civil Code, contract, obligation
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Oleg Ivanov Searching for Balance of Interests in the Regulation of Banking Transactions: Problems of the Lawmaking Process
The article discusses the tenth block of amendments to the Russian Civil Code which in general deals with banking transactions. Author aims is to explain why the proposed rules fail to strike fair balance between interests of different groups and turned out to be quite uncertain. The importance of conceptual issues is demonstrated by the examples of loan and deposit contracts regulation. It is argued that new amendments should be elaborated through the analysis of market and product needs and that civil and banking lawyers should cooperate in this work.
Keywords: financial transaction, civil law development concept, loan agreement
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Timur Ochkhaev On Some Problems of the Institute of Significant Change of Circumstances in Russian Law and the Prospects of Optimizing Its Regulation
This article analyses some issues relating to the regulation of modification and termination of contract due to unexpected change of circumstances. The author criticizes the rule of article 451 of the Russian Civil Code that obliges the interested party to take some measures to overcome the reasons that led to the change of circumstances. It is submitted that in this regard Russian law should follow the example of international documents and foreign laws that provide that change of circumstances should be caused by objective reasons outside of the parties’ control. Another question is to what extent should the circumstances change to provide grounds for modification of termination of the contract. It is argued that for such test to be satisfied the fulfillment of the contract shall become futile from economic perspective, i.e. fail to meet parties’ initial expectations. When the agreement becomes futile is for the court practice to decide. The author further proposes to regulate how the parties should conduct negotiations that were caused by the change of circumstances and to stimulate the parties to enter into such negotiations. One of the stimuli should be the change of courts’ approach to the resolution of the disputes following the change of circumstances. Instead of terminating contracts, courts should amend them.
Keywords: material change of circumstances, favor contractus principle, contractual equilibrium, clausula rebus sic stantibus, behavioral jurisprudence
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Andrey Egorov Third Party Payment to the Lender against His Will
The reform of the Russian Civil Code introduced serious changes, including granting to a third party a right to perform a monetary obligation of the debtor without his consent in case of breach of obligations by the latter. This is possible without having regard to what the creditor thinks about it. Furthermore, the third party payor steps in the shoes of the creditor as the latter's right to the debtor is automatically transferred to the payor. This in fact could be described as the compulsory buyout of debts. There have already been first cases in which payor’s dishonest behaviour was evident. These cases demonstrate that the rule of article 313 of the Russian Civil Code (third party payment) needs to be construed restrictively.
Keywords: performance of obligations, third party, subrogation, abuse of right, good faith