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ARCHIVE FOR 2017    RUSSIAN

Январь 2017

CONTENT

 

 

Olga Pleshanova Pledge of Substitute Assets: Flexibility vs Limitation of Extension
A reply to the case comment by R.S. Bevzenko and I.A. Yastrzhembskiy on the judgment of RF SC No. 305-ЭС16-7885, 17 October 2016
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Nataliya Rasskazova Existence of a Mortgage after Secured Obligation is Barred
Case comment on the judgment of RF SC No. 84-КГ16-7, 1 November 2016
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Alexander Razgildeev Tax Consequences of Sham Transactions: Should the New Business’ Owner Pay?
Case comment on the judgment of RF SC No. 05-КГ16-6003, 16 September 2016
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Olga Mikhaleva The Right to Information in Groups of Companies: German Experience
Since the relations within a group of companies are often complex, the right to information provides the necessary tool to supervise the activities of the entities involved and also an opportunity to influence their decision-making processes if the relevant activities may significantly affect the whole structure. The right to information should be granted to shareholders, members of the executive and supervisory boards and ensure informational flow within the whole structure in order to protect the interests of all parties involved. At the same time the right to information is subject to restrictions since it can be abused. The author describes the legal situation in Germany referring also to different types of relations within the group of companies according to German law.
Keywords: right to information in corporations, shareholders’ rights, shareholders' meeting
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Vitaliy Kalyatin Storing the Product in Digital Form as a Method of Its Use
In its recent decision the RF Supreme Court came to conclusion that storage of a work in electronic memory is a separate way of using the work. The article discusses whether this conclusion is wellgrounded. Storage in copyright law performs different functions. In particular, it may be a form of existence of the work or may be an element of the use of the work in a broader sense. However, as a rule, storage has no independent value and provide the means through which the work could be accessed and used in some other ways. The author argues that storage may not be classified as a separate way of use of a work and that reference of the Supreme Court to international agreements is not quite correct.
Keywords: intellectual property, copyright, storage, reproduction, software
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Кirill Novikov Extension of Pledge on the Substitute Assets: on One Rule of Article 345 of the Civil Code of Russia
The article explores the rule on the extension of pledge to the things derived from the pledged property (substitute assets). This rule was added to the Civil Code of Russia in the end of 2013. The construction of the rule proposed in the article is based on the classic theory of the modes of acquisition of ownership in the cases when one thing is derived from another (so called ‘connection of things’). The theory is considered in the light of the modern court practice. The article argues that the rule on the transfer of pledge should only be applied to material objects. The pledge extends to the things to which pledgor acquires ownership according to the rules of confusion, adjunction or processing of the original asset. The new rule is instrumental, as otherwise the pledge would have been terminated due to the destruction of the original asset. The problem is that many conclusions could currently be made through analogy or complicated construction process. It is therefore desirable to amend civil legislation by adding clear rules on the connection of things.
Keywords: right of ownership, modes of acquisition of the right of ownership, connection of things, pledge, extension of pledge
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Аnna Slonevskaya Institute of the Subsidiary Liability of Persons Supervising the Bankrupt Debtor
The article considers different problems of the subsidiary liability of persons who are responsible for bringing company to bankruptcy. In particular, it considers who could bring the claim to recover losses suffered by the company. Some grounds for such liability has recently been amended. These new rules are also discussed in the article. One of the problems is the extent of the subsidiary liability with regard to unpaid taxes. This question is also analysed and it is suggested that the defendants in such actions should be liable for the full sum of the unpaid taxes. The final part of the article covers some problems relating to the limitation period for such actions. The primary amendment in this sphere is the extension of the limitation period.
Keywords: insolvency (bankruptcy), subsidiary liability, controlling person, limitation period
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Stanislav Egorkin Phenomenon of Pretrial Prejudice in Civil Disputes
This article considers the problems of pretrial prejudice in the context of the influence that media can have on judges. The author describes the types of pretrial prejudice and gives an overview of the American case law which addresses the problems of finding and overcoming the impact of this phenomenon on the decision making process. The article concludes that it is not possible to exclude situations when not only jurors but also judges are prejudiced when they consider criminal or civil cases. The article also analyses the Russian legislation in order to ascertain whether it has any guarantees to prevent judges from making prejudiced decisions. The requirement to provide motives for the decision is one of the crucial guarantees against prejudice. However, modern Russian legislation waives this duty in some cases. This increases the risk of making prejudiced decisions.
Keywords: freedom of speech, right to a fair trial, pretrial prejudice

 

Paolo Garbarino Real Property and Registration in Italian Law
The article describes the basic rules that regulate «transcription» (i.e. special form of registration) of legal acts by which rights to real property in Italy are transferred or created. Special areas of the application of the transcription are also considered in the article. These areas include transcription of common rights of spouses, transcription of atypical acts etc. Other issues covered in the article include: organisation of the registration system in Italy, the procedure of the transcription, liability of notaries and the keeper of the register.
Keywords: Italian law, Civil Code of Italy, real property, registration of rights to real property, transcription of legal acts, property law, transaction, notary
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