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ARCHIVE FOR 2017    RUSSIAN

Январь 2017

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

O.V. Gutnikov Tort liability for violation of relative rights: prospects for development in the russian law
The paper deals with theoretical and practical issues of tort liability for damage to relative rights. An analysis of these issues leads to the conclusion about the possibility of protection of civil rights through the compensation for the harm caused to relative rights. The author proves the need of making changes to the legislation that directly establish the possibility of such protection, as well as the grounds and conditions of its application. The paper proposes to define directly in law notion of damage caused to property rights, as well as to establish the presumption of innocence of the tortfeasor.
Keywords: tort liability, relative rights, interventionist, causing harm, сompensation for damages
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L.N. Pavlova Execution of an obligation by a third party in insolvency (bankruptcy) cases
The paper considers the issue of execution of an obligation by a third party in case the debtor did not entrust execution to a third party and caused a delay in the execution of a monetary obligation. Taking debtors’ bankruptcy cases as an example, the author substantiates that the recent changes in the legal regulation regarding this institution led to abuse of right by unscrupulous individuals. The paper reveals the encountered problems of law enforcement, abuse mechanism used by third parties as well as by creditors, and legal positions developed by the courts in order to prevent abuses. In conclusion the author proposes to improve the Article 313 of the Civil Code of the Russian Federation in order to minimise the negative effects of current law.
Keywords: execution of an obligation by a third party, abuse of right, subrogation, insolvency (bankruptcy) cases
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A.Yu. Churilov Comparative analysis of the legal status of third parties to a contract according to the Russian and English law
The author analyses the legal status of third parties to a contract according to the English and Russian law. In order to point out the features of the legal status of third parties the author considers legal precedents, doctrine, and special legislation, including Contracts (Rights of Third Parties) Act 1999 and Article 313 and 430 of the Russian Civil Code. The author highlights differences and similarities of the legal status of third parties in the UK and in the Russian Federation, and looks at the rules relating to the identification of a third party in a contract and to imposing liability on a third party in case he/she had improperly fulfilled the debtor’s obligation.
Keywords: contract, third party, liability
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Judicial practice. Comments

A.A. Pavlov Passive solidarity as explained by the supreme court of the Russian Federation
The author examines the issues of passive solidarity which are poorly explored in the Russian law of obligations, and have not been duly considered in the Plenary Ruling of the Supreme Court of the Russian Federation dated 22 November 2016 No. 54 “On Certain Issues of the Application of General Provisions of the Civil Code of the Russian Federation on Obligations and Their Fulfillment”. The present paper looks at the Ruling which partially touches upon this legal institution, namely the provisions on debt relief, retraxit (Item 52), and legal recourse (Item 53).
Keywords: plurality of debtors, solidary obligations, passive solidarity, solidary debtors, debt relief, retraxit, recourse claim, datio in solutum
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A.A. Gromov Satisfying the demand for specific performance in view of the plenary rulings of the supreme court of the Russian Federation
The author examines certain legal issues concerning the claim for specific performance on the basis of the Plenary Ruling of the Supreme Court of the Russian Federation dated 24 March 2016 No. 7 “On the Application of Certain Provisions on the Liability Due to the Breach of the Obligations of the Civil Code of the Russian Federation”. Special attention is focused on the institution of impossibility of performance.
Keywords: specific performance, impossibility
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Discussion Board

A.A. Ivanov Intellectual property and real rights: issues of correlation
Pokemon Go has recently provoked a serious Internet discussion on whether this application infringes landowners’ rights or not. Using this example, the author identifies problems arising in modern civil law doctrine in view of a search for the proper balance between real rights and IP rights.
Keywords: real rights, intellectual property, exclusive rights, copyright, actio negatoria
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A.P. Sergeev Applying the rules on rei vindicatio to solving trademark disputes
The author analyses one of the recent judicial cases, addressing a question that is ambiguously solved in the courts practice. Dealing with a controversial issue that vividly demonstrates the challenges characterising the sphere of IP rights protection, the author arrives at the conclusion that all requirements needed for applying the rules on rei vindicatio by analogy to solve IP disputes are already met.
Keywords: right of ownership, intellectual property, possession, rei vindicatio, violation of exclusive rights, trademark
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T.V. Vasilyeva Some thoughts on protecting ip rights from usurpation by third parties (at the example of Russia and France)
The paper focuses on the topical issue of means of protection of IP rights in cases where a right holder unwillingly loses possession of such rights, e.g. as a result of unlawful actions of third parties. On the basis of various Russian and foreign sources, the author analyses existing academiс approaches to the legal nature of IP rights including rights to means of individualisation.
Keywords: intellectual property, rei vindicatio, trade mark, transfer of trade mark, invalidity of legal transaction, bona fide purchaser (BFP)
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Theory and practice

K.I. Sklovskiy Interpretation of good faith as the duty of the court
Russian judges frequently refuse to evaluate facts declared by a party to a dispute as a proof of the violation of a civil law principle. Using the example of one arbitration case, the author illustrates the idea that, since the substance of a principle might not be captured otherwise than by judicial interpretation in certain cases, any refuse to give it should be assessed as a denial of right to a fair trial.
Keywords: civil law principles, principle of good faith, judicial interpretation as the duty of the court, denial of justice
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M.V. Shavaleev Contract law in the time of economic instability: how a substantial change of circumstances affects obligatory force of a contract
The paper is dedicated to the analysis of legal categories of a substantial change of circumstances in the period of economic instability. The author evaluates the practice of Russian courts concerning the issue of adaptation and termination of contracts due to a substantial change of circumstances. The paper considers conflicts arising between the institutions established by the Article 451 and other provisions of the Russian Civil Code.
Keywords: clausula rebus sic stantibus, substantial change in circumstances, termination of a contract, adaptation of a contract
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O.A. Melnichenko Certain issues of conditional and reciprocal obligations
The author analyses the reasons for the introduction in the Russian Civil Code of new provisions on conditional performance of the obligation, and considers the problems of harmonisation of the new Article 327.1 with the previously set provisions of the Article 157 on conditional transactions and the Article 328 on the counter-performance of the obligation.
Keywords: conditional transaction, conditional obligation, reciprocal duties, synallagma
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S.V. Savina Novel legislation for participation in shared construction: other restrictions, new opportunities, or a compromise?
The paper analyses recent amendments to the Federal Law “On Participation in the Shared Construction of Apartment Buildings...”, and possible consequences for individuals investing in shared construction, developers and banks.
Keywords: participation in shared construction, developer, legal entities associated with the developer, apartment blocks
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N.V. Ivanov The right to remuneration for work made for hire and performance delivered in the line of duty
The paper focuses on the problem of interpretation and application of the rules applicable to the right of the author to remuneration for work made for hire and performance delivered in the line of duty. The paper also scrutinises the essence of these rules, conditions and the moment when this right is established, the right holder and the person obliged to pay the remuneration, turnover capacity of this right and rules of its inheritance. The author of the paper proves that restrictions imposed on the turnover of this right by law should be canceled.
Keywords: exclusive rights, other intellectual property rights, the right to remuneration, work made for hire, performance delivered in the line of duty, turnover capacity of the right to remuneration, inheritance of the right to remuneration
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I. Tenberga Ethic compass of islamic banking
The paper provides the analysis of moral bearings in Islamic banking. The primary focus is given to the aspects of justice, public interest and urgent necessity, as well as to the application thereof in Islamic banking. The author admits that Islamic banking as a holistic phenomenon may exist only in case of complete (non-selective) adherence to the Islamic fundamentals. Meanwhile, understanding of the idea of Islamic banking exclusively from the perspective of the manner of yielding profit that differs from credit banking, without taking into account the legal, social, ethical guidelines of Islam impedes to value objectively the advantages of this type of financial activities at the non- Islamic jurisdictions.
Keywords: islamic banking, Islamic bank, justice, public interest, urgent necessity
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Foreign experience

S.G. Konovalov German “investigating judge” in the mirror of russian criminal procedure doctrine: facts and myths
Russian legal doctrine has formed a strong picture of “investigating judge” as a party to German criminal procedure. Russian legal scholars are confidently discussing the name of this participant, its specialisation, functions, history and influence on the adversariness of criminal process. The author, however, comes to the conclusion that there are no clear and reliable grounds for certain opinions. The paper reveals and debunks some popular myths.
Keywords: investigating judge, examining judge, magistrate, pretrial investigation, judicial supervision, Germany
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