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ARCHIVE FOR 2017    RUSSIAN

Февраль 2017

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

I.G. Renz Automatic change of law applicable to matrimonial property: a time bomb or panacea?
The paper considers the conflict arising from the automatic change of connecting factors regarding matrimonial property, and its practical consequences both for spouses and third parties. The author undertakes a comparative legal research to find out whether current conflict of laws rules comply with the requirements of ensuring the stability of civil turnover and meeting reasonable expectations of parties whose property rights could be violated in case the applicable law is changed.
Keywords: matrimonial property, full common property, connecting factor, choice of applicable law
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E.V. Gurchenko, O.A. Kovelyanova Ensuring spouses’ rights and interests in case of division of property, or how to save business if the marriage was not saved
As a rule marital relationship is not measured as a real risk to business. However, it might negatively affect and even jeopardise business operations. What consequences does the change of marital status have for business? How should the rights of former spouses be protected? What are the risks to business partners? The answers to these questions are offered in this paper.
Keywords: division of marital property, divorce, rights of former spouses, matrimonial property, spousal consent
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S.L. Budylin Titles and assets. Division of matrimonial property and trusts
The author compares how the institution of trust is applied in the UK and the US, and analyses a few notable divorce cases of recent years, trying to find out whether the property held in trust should be divided in a divorce if one of the spouses is the beneficiary.
Keywords: trust, fiduciary management, revocable trust, reversionary trust, spouse’s rights, beneficiary’s rights, matrimonial property, division of property in a divorce
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O.V. Manannikov On the property rights of former spouses
The author criticises the idea that property relations of former spouses are regulated by family law which inter alia requires the consent of the former spouse for individual deals with the property that had been acquired during the marriage. Theoretical concept and characteristics of the division of spheres regulated by civil and family law are explored. On the basis of comparative analysis of two different approaches to extending norms of the Family Code on the relationship of full common property between former spouses, the author concludes that as soon as the marriage ends, property relations of the former spouses will be regulated by civil, and not family, law.
Keywords: former spouses, joint ownership, subject of legal regulation, consent of the spouse
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O.A. Volgina, R.V. Khisamova Bankruptcy for married couples in Russia: how to apply for joint bankruptcy and what are its benefits
The paper analyses a possibility of joint bankruptcy for spouses according to Russian substantive law and procedural law. The authors consider joint bankruptcy of spouses as a way to add bankruptcy assets with matrimonial property. Although today no special legal rules allow to make joint bankruptcy of spouses real in Russia, the paper demonstrates few cases illustrating that filing for it is still possible. The authors put particular emphasis on liability of spouses, execution upon matrimonial property in case there is an individual obligation of one spouse, and develop certain interesting practical approaches to the application of the Article 45 of the Russian Family Code and of a few provisions of Bankruptcy Act, relating to personal bankruptcy. In conclusion there are some pros and cons of joint bankruptcy of spouses.
Keywords: personal bankruptcy, joint bankruptcy of spouses, liability of spouses, matrimonial property, execution upon marital property
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Judicial practice. Comments

S.V. Romanov The plenary ruling of the supreme court of the Russian Federation “On the sentence”: an academic comment
The author critically examines the new Plenary Ruling of the Supreme Court of the Russian Federation “On the Sentence” adopted in 2016. Valuable explanations as well as some gaps and controversies are marked.
Keywords: sentence, legality of sentence, argumentation in a sentence, charge, acquittal, change of an accusation, fair trial, absent witness, admissibility of evidence, confession, unlawful methods of criminal investigation
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Press Release

 

Theory and practice

P.V. Krasheninnikov Interrelation of areas of private law (civil, family, housing and land legislation)
Russian private law involves a whole range of rigidly systematised legislative branches. However, there are certain risks of conflicts of laws, especially in case identical relationships are regulated by various acts. Taking into account the complexity of related legal institutes, the author proves that it is essentially important to consider interdisciplinary relationships as well as the development of legal instruments in order to protect main codified acts from random alterations.
Keywords: areas of private law, civil legislation, family legislation, housing legislation, land legislation

 

A.N. Vereshchagin Evolution of jury trial in Russia
Jury trial has enormous potential and is able to considerably strengthen the legitimacy of judicial decisions, as well as to boost public confidence in courts. The author analyses major benefits and drawbacks which, once overcome, will probably encourage wider use of this institution.
Keywords: jury trial, lay judges, public participation in justice
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S.K. Solomin, N.G. Solomina On the validity of the “new” means of indemnification in case the contract is terminated
The authors analyse the Article 393.1 of Russian Civil Code and explanations of the Supreme Court of the Russian Federation regarding its application. The paper thus demonstrates the unauthenticity of the “new” means of indemnification in case when the contract is terminated.
Keywords: discharge of a contract, indemnification, similar goods, current price
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K.Yu. Molodyko Perspective development of regulation of credit rating agencies activity
The author offers a series of complex proposals for the development of regulation of credit rating agencies (CRA) in Russia, taking into account the high degree of monopolisation of the relevant markets, analysing relevant EU and US regulations, new Russian law as well as first Russian Central Bank’s regulations implementing the latter. The author focuses on such groups of questions as: prohibited and manageable conflicts of interest; prices oversight; permissible activities for credit rating agencies; fair competition, entry of new players into the market and the prevention of monopolisation of the market; oversight CRA and other financial markets institutions salaries; supervision fees; peculiarities of sovereign ratings; sanctions applied to the CRA. According to the author, international cooperation of the regulators of CRA markets as well as competition authorities of the BRICS countries will help to restart the CRA market in the direction of ensuring the integrity and transparency of their work.
Keywords: credit rating agencies, conflict of interest, antitrust regulation and the protection of fair competition, cooperation within BRICS
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M.I. Kudelich Admission of carriers to perform international air transportation: competition problems
At present, Russia has nearly thirty intergovernmental air traffic agreements, coordinating the admission of airlines for international air transportation. So called commercial rights are granted to Russian air companies by Rosaviation. If the agreement with a particular country does not restrict the number of carriers and the frequency of flights, Rosavition decides on the admission on its own. If such restrictions exist and a few companies are interested to get the admission, the choice is made on a competitive basis by Interdepartmental Commission. Despite the apparent openness of the process, the existing system of carriers appointment has a number of significant drawbacks which limit the access of airlines to interesting markets and violate consumers rights.
Keywords: intergovernmental air traffic agreements, international air transportation carriers’ admission, protection of competition
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V.A. Belov “Criticism of the doctrine”, “doctrinal criticism”, and legal nature of corporate relations revisited
The paper offers an answer to M.K. Suleimenov’s publication “Civil Law and Corporate Relations: Problems of Theory and Practice” and follows up the discussion about legal nature of corporate relations. Besides, the author appeals for open-minded and impartial approach to academic papers, that is for assessing their matter, and not their author.
Keywords: corporation, corporate relations, corporate legal capacity, corporate law, academic discussion, academic criticism
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