ARCHIVE FOR 2017 RUSSIAN
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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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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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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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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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