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Апрель 2017




Tatyana Andreeva Mandatory Letter of Claim: Is it Necessary for a Public Attorney?
Case comment on the judgment of RF SC No. 306-ЭС16-16518, 20 February 2017
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Roman Bevzenko Charging Order by the Court: Its Effect in Bankruptcy Proceedings
Case comment on the judgment of RF SC No. 301-ЭС16-16279, 27 February 2016
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Evgeny Gorbunov Involuntary Loss of Possession, Good Faith and other Problems of Vindication
Case comment on the judgment of RF SC No. 78-КГ16-66, 24 January 2017
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Gennadiy Vasiliev Recovering Payments for Public Utility Services: A New Turn in Practice
Case comment on the judgment of RF SC No. 303-ЭС16-15619, 1 March 2017
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Gadis Gadzhiev Justice and Trust in Justice as Fundamental Principles of Private Law
In its recent judgment of 13 December 2016 No. 28-П the Constitutional Court of Russia declared unconstitutional certain rules of the Civil Code of Russia on the payment of compensation for infringement of intellectual property rights. The conclusion was based on the following grounds. First, the minimal amount of the compensation fixed by the rules cannot be reduced. Second, when determining the amount of compensation, the courts refused to take into account individual circumstances of the case and personal characteristics of the infringor. According to the Constitutional Court, these rules are so harsh that they could not be considered as complying with the principles of justice and proportionality of liability. The article describes the main principles that formed the basis of the judgment of the Constitutional Court. One of these principles is justice which requires taking into account all individual circumstances of the case in order to achieve a balanced result. The other principle is the trust in justice which assumes that court at its reasonable discretion could apply rules that lack strict meaning. The existence of these principles coupled with judges’ professionalism and competence should enable the stable work of the national legal system.
Keywords: justice, intellectual property, trust in justice, compensation for infringement of intellectual property rights, trademark
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Anton Ivanov The Seventh Instance?
The article analyses recent amendments to the Federal Constitutional Law No. 1-ФКЗ of 21 July 1994 «On the Constitutional Court of the Russian Federation». According to these amendments, decided cases in other courts could be reopened if judgments are at variance with the ratio of a Constitutional Court’s judgment, irrespective of whether this judgment declares the law in question unconstitutional. Before this amendment the judgments and positions of the Court were formally obliging only if and when they declared a law unconstitutional. The article suggests that this strengthening of the opinions of the Constitutional Court makes it possible for the Court to become a new seventh (extraordinary) instance on the top of the whole judicial system. This could happen, of course, if the activity of the Court increases. The creation of this additional level in the court system will undermine the principle of legal certainty and could create collisions with the European Court of Human Rights.
Keywords: principle of legal certainty, judicial instances, constitutional justice, Constitutional Court of the Russian Federation, Supreme Court of the Russian Federation
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Arutyun Sarkisyan, Denis Novoselnov On the Waiver and Its Consequences
The article analyses the legal nature of the waiver or right, basic principles of its operation, elements and conditions of its validity. The authors criticise the approach which finds strong support in Russian courts according to which the waiver of right does not affect the right in question, i.e the right exists despite the purported waiver. The article argues that the waiver of right is a unilateral transaction aimed at the final and complete cessation of the subjective right without succession. The authors suggest that one cannot presume the waiver of right. The analysis shows that the waiver of right in Russia has many similar features with the same institute in the USA and Germany.
Keywords: waiver, unilateral transaction, dispositive transaction, negative obligation


Vladislav Kostko Freezing Order as an Instrument to Secure Debts: Correlation between Point 2 Article 174.1 and Point 5 Article 334 of the Civil Code of Russia
The Civil Code of the Russian Federation has been recently amended by two provisions that aim to regulate consequences of a court’s freezing order. According to point 2 article 174.1 of the Civil Code due to the freezing order the claimant could enforce his rights even if the defendant has not obeyed the order and sold the property. In addition, point 5 article 334 of the Civil Code stipulates that the claimant whose claim is protected by the freezing order has rights and obligations of the pledgee (mortgagee). The article considers correlation of these two provisions and analyses their consequences. It is argued, first, that the instrument created by point 2 article 174.1 of the Civil Code is not a pledge. The claimant has only the rights of the pledgee, i.e. the right to sell property according to the pledge procedure. Second, the new instrument could be used not only for pecuniary claims but also for claims to recover property in specie. In the latter case point 5 article 334 of the Civil Code does not apply. The article criticises the approach that puts the more active creditor in the privileged position by giving him a court pledge (as a consequence of the freezing order). The correct understanding of the new rules is that they extend the pledge foreclosure and sale procedure to the case of court’s freezing order. Therefore, they do not give the claimant priority in debtor’s bankruptcy. The article also discusses how could point 2 article 174.1 of the Civil Code be used when the freezing order secures the claim to recover a specific property rather than money.
Keywords: pledge, freezing order, bankruptcy
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