ARCHIVE FOR 2016 RUSSIAN
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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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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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