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ARCHIVE FOR 2016    RUSSIAN

Декабрь 2016

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

A.A. Vishnevskiy Principal foundations of the bank account pledge
The article (based on inter alia comparative legal considerations) puts forward the three principal foundations of the legal regulation of the bank account pledge, namely priority in rank, identification of the encumbered assets, efficient control of the pledgee over the assets. The author insists that these features are to be stated clearly in the legislation, otherwise they may easily lack its efficiency. Based on the above the author proposes practical solutions to a number of the issues raised in the course of use of this collateral, such as terms and conditions of the pledge agreement, possibility of pledge over already existing bank deposit.
Keywords: pledge, bank account pledge, collaterals
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E.A. Ostanina Issues of the invalidity of a microloan agreement and its certain conditions
What if the microloan agreement violates the restrictions provided by law? The author concludes that the conditions of microloan agreement are partially invalid in this case. The restrictions provided by law are not retroactive. If the lender has not received the status of microfinance organisation, but enters into a contract with a consumer, the limitations provided by law also must be applied.
Keywords: loan agreement, microfinance activities, freedom of contract
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O.S. Gruzdev Legal qualification of credit notes (relationship to securities, financial derivatives)
The paper deals with certain problems relating to the legal nature of credit notes, which are frequently discussed nowadays. There is no unified approach to the legal qualification of credit notes among lawyers since some of them consider credit notes as securities, others — as derivatives. Therefore, the author aims to reveal the legal nature of these financial instruments, and comes to the conclusion, that according to Russian law credit notes are neither securities nor derivatives. The author offers his own interpretation of these instruments and gives the examples of their practical use.
Keywords: credit note, security, derivative, securitisation, covered bond
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A.V. Khrustaleva Problems of legal regulation of chargeback when disputing cashless transactions in the Russian Federation
Concept of chargeback, subjects of chargeback procedure, goals of implementation of chargeback procedure, content of chargeback procedure will be analysed in the article. The author states that there is no Russian statutory regulation of this institution, thus analysing it in light of national rules of MasterCard and Visa payment systems in Russia.
Keywords: bank card, payment system, member of a payment system, payment infrastructure service operator, chargeback, payment system operator, card issuer, cardholder, trade and services organisation
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D.A. Gavrin Money in the immaterial sphere
The author considers e-money and analyses current legislation with a view to a potential adaptation of e-money to already existing legal institutions. The paper touches upon economic and legal aspects of e-money, and the reasons preventing its development. The author studies correspondent international experience and arrives at the conclusion about the necessity of a new legal concept of e-money. Initial placement (emission) of e-money and an independent payment system are required for the admission of e-money as an independent legal means of payment. Current Russian law provides for non-cash transactions for transferring e-money, which deprives e-money of its property of universality.
Keywords: money, non-cash money, e-money
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I.T. Bulgakov Legal issues of the use of blockchain
The paper presents the analysis of the following legal issues associated with the use of blockchain: the way how it functions, the spheres where it is applied, and how its spread all over the world challenges all governments, including Russian. The author looks at the problems of legal qualification of cryptocurrencies, and analyses questions of currency control, legislation on counteraction of legalisation of funds gained by criminal means and financing of terrorism, securities legislation, tax questions, and the questions of adaptation of special legislation in light of the use of blockchain. The paper also demonstrates foreign approach to these issues.
Keywords: blockchain, coloured coins, bitcoin, smart contracts
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Discussion Board

O.V. Dmitriyeva The functional purpose of the award for non-pecuniary damage as a form of civil liability
The paper covers the analysis of the functional purpose of the award for non-pecuniary damage as a form of civil liability. The analysis revealed that while the award for non-pecuniary damage is apparently similar to other reparation and remedial forms of liability, the actual absence of its ability to restore the violated right is obvious. The author emphasises a number of significant factors, allowing to determine the legal nature of this form of liability. These include: presumption of non-pecuniary damage in case of the violation of intangible benefits, isolating the right to award from proving the existence of damage; the amount of the award, which is the notional value, not actually related with the non-pecuniary damage due to the impossibility of its objective assessment; the material nature of award, due to its proprietary nature, is not capable of restoring the violated non-property benefit; dependence of the amount of the award on the degree of guilt of the causer, reflecting the desire of the legislator adversely affect the pecuniary sphere with the aim of punishment of an offence. The combination of these factors allowed the author to draw a conclusion that the award for non-pecuniary damage is by its nature an individual court fine belonging to the field of tort liability. The available essential features of this fine are also analysed. This view on the non-pecuniary harm caused to a citizen allows us to see in a different light the problem of the protection of business reputation of a legal entity.
Keywords: forms of civil liability, reparation and remedial function of civil liability, punitive function of civil liability, award for non-pecuniary damage, protection of business reputation of a legal entity
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D.A. Tumanov Public interest and administrative legal proceedings
The author considers public interest as both the interest of society in general and the interest of individual social groups making up the society. The paper focuses on the fact that public interests may not coincide with the interests of the state as well as the society is interested in the efficient judicial protection against the abuse of the state. The author notes that the adoption of the Russian Administrative Court Proceedings Code did not increased the level of protection against such abuse, and, on the contrary, has reduced it. The paper also deals with the problem of public interest as the direct and indirect protection object, demonstrates the inefficiency of procedural mechanisms of its direct protection under the Administrative Court Proceedings Code (for instance, collective claims).
Keywords: public interest, administrative litigation, collective claims, unspecified number of persons
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Press Release

 

 

Theory and practice

I.S. Shitkina Legal regulation of interested party transactions
The author analyses the amendments introduced to the corporate legislation by the Federal law dated 3 July 2016 No. 343-FZ and substantially changing legal regulation of making of so called extraordinary transactions, in particular, interested party transactions. These amendments, coming into force on January 1, 2017, significantly change grounds for the qualification of these transactions, procedure for their internal approval, disclosure protocol, procedure for their challenge, and grounds for the protection of the rights of parties making related party transactions.
Keywords: interested party transactions, extraordinary transactions, approval of the transaction, invalidation of the transactions, challenging the transactions, conflict of interest, charter of the business company, joint stock company, limited liability company
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G.V. Tsepov The problem of homonyms, or is it acceptable to unify legal regulation of meetings?
The paper deals with the problem of unification of legal regulations applied to meetings of members of noncorporate and corporate bodies. Applying the methods of economic analysis of law, the author, firstly, examines the nature of corporate and non-corporate bodies and comes to a conclusion that their structures are significantly different. Secondly, taking the obtained results into consideration and using the formal logical method, the author studies the possibility of constructing an uncontradictory system of legal regulation of noncorporate bodies and corporate bodies. In conclusion the author states that the unification taken in law does not cover all the peculiarities of legal regulation objects, and it is contradictory. The term “civil-law community” should be used only in relation to non-corporate bodies.
Keywords: decision of the meeting, civil-law community, legal entity, body, transaction costs
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P.N. Makarov Review of the novelties in the civil law simplifying the recovery of losses by the creditor (including the positions of the plenum of the supreme court of the Russian Federation)
The paper looks at the measures adopted by the Russian legislator in the course of the recent reform of civil law regarding the simplified recovery of losses incurred by a creditor as a result of the breach of contract. Having analysed the standard of proof “Reasonable Degree of Reliance” as it is set by Item 5 Art. 393 of the Civil Code of the Russian Federation, the author arrives at the conclusion about its correspondence to such widespread standard of proof as “Prior Probability”. The paper describes the institute of abstract calculation of losses at the termination of contract foreseen by Item 2 Art. 393.1 of the Russian Civil Code as a guarantee for a minimum monetary compensation gained by creditor. Speaking about the protection of debtor from the creditor’s unfair actions or negligence increasing the amount of the compensation to be paid the author presumes that it should be performed by means of the Art. 404 of the Civil Code of the Russian Federation foreseeing the creditor’s obligation to take reasonable measures to minimise losses. The paper describes certain standards of proper conduct of a creditor at the stage of termination of contract and entering into replacement transaction.
Keywords: standard of proof in liability causes, calculation of losses by means of an abstract method, consideration of the price of a replacement transaction, termination of contract, creditor’s obligation to reduce losses
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A.S. Narizhniy Security interest over future immovable property
The paper is devoted to the issues of the security interest over future immovable property. The author agrees that current Russian legislation does not provide for security interest in respect of the immovable property which did not exist at the time when the security agreement was made. However, this kind of security agreement should be legalised since it grants a creditor the right to reserve the priority of security interest over the property even before it is created and identified. The publicity requirements could be met by making a pre-entry in the register.
Keywords: real security, security interest over future immovable property, principle of specification, pre-entry
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V.V. Shinkarev Vat clawback obligation: the correlation between item 3 art. 170 and item 2 art. 171 of tax code of the Russian Federation and novelties in their application
The paper focuses on the correlation between the general rule on VAT deduction, which is admitted only in case goods are acquired for the purpose of carrying out VATregistered businesses (Item 2 Art. 171 of Tax Code of the Russian Federation) and the rule on restoring the amounts of VAT which have been claimed as deductions (Item 3 Art. 170). The author considers how these regulations are applied, arrives at the conclusion about their interrelation and analyses cases with application of the general rule by analogy.
Keywords: tax disputes, value added tax (VAT), VAT clawback, tax deductions
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N.G. Eliseev Perspectives of mutual recognition and execution of court decisions in the relations between Russia and Germany
The paper considers the decision of the High Court of Hamburg of July 13, 2016 by which it was refused to recognise the judgment of state arbitration court of the Russian Federation, and possible consequences of this decision for court practice in Russia and Germany. The author critically estimates the proposal to regulate the recognition of foreign judgments in the unified Code of Civil Procedure of the Russian Federation on the basis of reciprocity and offers an alternative option on regulation.
Keywords: access to courts, comity of nations, comitas gentium, evaluation of evidence, foreign judgments, interpretation of international treaty; reciprocity, recognition and enforcement of judgments
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Foreign experience

O.S. Zharkova National filter for applications submitted to the ECHR: to be or not to be
The paper describes several key events that occured in German legal history and led to filtering of certain applications submitted to the ECHR. The author touches upon the respective powers granted to the Federal Constitutional Court of Germany and considers the advantages and legal basis for granting them to the highest court in Russia.
Keywords: ECHR, Federal Constitutional Court of Germany, implementation of ECHR cases, filtering of applications submitted to the ECHR
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