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Ноябрь 2016




Artem Karapetov On Non-Mandatory Character of Contract Law Rules
Case comment on the judgment of RF SC No. 301-ЭС16-4469, 25 August 2016
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Alexander Kuznetsov Limitation Period for Derivative Actions by Company's Participants
Case comment on the judgment of RF SC No. 305-ЭС16-3884, 26 August 2016
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Elena Ostanina What is Permitted by Construction Permit?
Case comment on the judgment of RF SC No. 309-ЭС16-5381, 27 September 2016
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Dmitry Shnaydman Insurance Company Refuses to Pay since the Right to Subrogation is Lost
Case comment on the judgment of RF SC No. 305-ЭС16-5058, 5 September 2016
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Anton Rudokvas Infringement of Duties of Information: Pre-Contractual Liability, Representations, Warranties and Indemnity
The Supreme Court (SC) of the Russian Federation explained how new rules on pre-contractual liability (article 434.1 of the Civil Code of the Russian Federation) should apply in the case of void or incomplete contracts. The explanation is given in point 21 of the Ruling of the Plenum of the SC No. 7 of 24 March 2016 «On Application of Some Rules of the Civil Code of the Russian Federation on Liability for Breach of Obligations». The article analyses this position and tries to determine the area in which the pre-contractual liability could operate within the framework of Russian positive law. Furthermore, the article considers relation between this type of liability and new institutes of warranties and indemnities that have been transplanted with some modifications from English law into Russian legislation. It is also described how one should apply these rules on pre-contractual liability. Moreover, «negative interest» – another concept new to Russian law – is also considered and explained.
Keywords: culpa in contrahendo, pre-contractual liability, negative interest, representations, warranties, indemnity
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Sergey Gromov Specific Features of the Compensation for Concrete and Abstract Losses at the Termination of Contract
The article deals with concrete and abstract methods of assessment of damages due to the creditor after the contract is terminated because of its breach by the debtor. The commentary is based on the detailed analysis of cases on compensation of damages in which arbitrazh courts have applied these methods of assessment. The focus is on the conditions for the application of these methods as they have been developed by the court practice, requirements to the parties’ behaviour, the content of the judgment based concept of reasonableness of the conditions of the replacement transaction (including its price), the burden and the method of proof. The article pays special attention to the new approach to these methods in the Ruling of the Plenum of the Supreme Court of the Russian Federation No. 7 of 24 March 2016 «On Application of Some Rules of the Civil Code of the Russian Federation on Liability for Breach of Obligations». In particular, the article demonstrates that the sphere of the application of the abstract method was widened significantly in accordance with the recommendations of the European civil law doctrine.
Keywords: termination of contract, replacement transaction, concrete method of assessment of damages, abstract method of assessment of damages


Anton Rudnev Indemnification of Losses in the Renewed Civil Code of the Russian Federation: the «Sleeping Beauty» of the Russian Law
The article analyses the rules of article 406.1 of the Civil Code of the Russian Federation and assesses whether new indemnity clauses that were introduced by this article will be popular in contracts governed by Russian law. The research is focused on issues concerning the nature of the obligation to indemnify losses and types of losses that could be indemnified. The conclusions take account of the recent comments of the Supreme Court of the Russian Federation as well as practice of English courts. In addition, possible combinations of the indemnity clauses with other contractual terms are examined.
Keywords: indemnification of losses, indemnity, compensation of damages, freedom of contract, suretyship
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Roman Bevzenko A Transaction with Matrimonial Property without Consent of the Other Spouse
The article analyses the matrimonial property regimes adopted in the different European jurisdictions: fully divided property, postponed property, partial common property, full common property. It is argued that the partial common property regime that is adopted in Russian law needs to be replaced by the postponed property regime. According to the latter, the spouses' shares are determined in case of their divorce. The spouse who earned more should pay to the other spouse. The problems with the Russian common property regime are illustrated by the practice of the Supreme Court of the Russian Federation on cases when one of the spouses disposes of items included into matrimonial property. The court recovers these items from bona fide purchasers who did not know that they acuquired matrimonial property. This approach, the auhor argues, is flawed and harmful to the market.
Keywords: matrimonial property, common property, bona fide purchaser
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Ekaterina Dmitrikova, Elena Legashova, Sergey Ovsyannikov New Trends in Customs Disputes
The article contains a detailed commentary to the Ruling of the Plenum of the Supreme Court (SC) of Russia No. 18 «On Some Issues of Application of Customs Legislation by the Courts», 12 May 2016. The SC explained how courts should decide disputes concerning contesting the adjustment of the customs value and reclassification of goods by customs authorities, recovery of customs duties (including the case of the loss of temporarily imported vehicle). In addition, the Ruling provides some directions as to the allocation of the burden of proof. The SC introduces new criteria for admissibility of evidences in the court which were not submitted by the parties during customs inspection. The authors analyse all these issues and comment on the SC’s approach to the application of WTO and EAEC rules by courts. The paper compares SC’s position with previous judgments of the Supreme Arbitrazh Court and other courts and highlights new trends in court practice.
Keywords: customs duty, customs value, the Law of the WTO, classification of goods, Eurasian Economic Union, customs disputes
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Dirk Looschelders Impossibility and Damages instead of Performance
Impossibility represents a classic instance of performance failure which for a long time has been attracting attention of both scholars and legal practitioners. The reform of the law of obligations that took place in 2001–2002 changed the legal foundations of this institution in some substantial respects. This raised many issues with no definite solution that caused heavy controversies among scholars. The present paper considers when the primary obligation to perform ceases to exist according to § 275 I–III and how this obligation relates to the damages to be paid instead of performance. The author will also take into account the general European context of this problem.
Keywords: impossibility, damages to be paid instead of performance, specific performance, responsibility, breach of duty
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