ARCHIVE FOR 2017 RUSSIAN
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Апрель 2017
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.E. Tarasova Contractual asymmetry in civil law: rule or exception? The author analyses the model of contractual asymmetry
in legal regulation of civil relations, and demonstrates a
certain system of contractual asymmetry, its typology
and manifestation both in general contractual models and
special types of civil relations. An attempt to reveal criteria
and limits of asymmetry in contract law and to find out its
general value for legal regulation of civil and other (family,
housing) relations is made.
Keywords:
model of contractual asymmetry, contract, private interest, freedom of contract, equality of participants of civil relations
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K.Yu. Molodyko European legal concept of linked credit agreements and its value for russian legislation The author researches the European legal concept of linked
credit agreements, which provides an imperative civil liability of
the banks and other financial institutions for the delivery and
quality of goods and services supplied by their clients. The concept
is aimed at reducing such asymmetries as a lack of knowledge
of the consumer about the reliability of suppliers of goods,
services that are purchased on credit, the quality of goods and
services, as well as the inability of the consumer to influence
the terms of the loan agreement and the contract of supply of
goods or services purchased on credit. This concept has been
developed in recent years at the level of the EU law, although it
existed in some EU countries earlier. Russian consumer credit
law sometimes unnecessarily uses truncated European approach
to civil liability, which reduces the level of consumer protection
on the market. The author believes it is advisable to implement
the concept of linked credit agreements to the Russian legislation
on the protection of consumers of financial services. The move
away from the concept adopted in Russia, that the bank is only
an abstract settlement center, can also have a positive influence
on the development of the mortgage as a way to provide better
housing for citizens.
Keywords:
linked credit agreements, protection of rights of consumers of financial services, consumer credit, mortgage
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T.S. Mikoni Pre-contractual duty of a bank to disclose information when entering into a payment card agreement with a consumer Pre-contractual duty of disclosure serves to prevent
the adverse effect of information and professional
asymmetry between the bank and the consumer of
financial services. Specifying the elements of effective
statutory regulation of pre-contractual duty in the context
of payment card agreement the author takes notice that
both the drafters and commentators of laws should aim
at offering better protection to consumers by providing
them with the opportunity to make a conscious choice
of a financial service. On the basis of law enforcement
practices, the author concludes that an extended list
of information which is to be disclosed by the bank to
the client when concluding a payment card agreement
should be formalised in legislation.
Keywords:
pre-contractual duty, information asymmetry, payment card, consumer protection
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A.V. Roslyakov Implementation of the principle of freedom of contract in view of natural monopolies The paper is devoted to the peculiarities of the implementation
of the principle of freedom of contract in relation to
the subjects of natural monopolies. The author comes to
a conclusion that the relevant statutory exceptions to this
principle are the restriction of the legal capacity of natural
monopolies. Tariff setting on the basis of economic justification
is a necessary condition for achieving a balance of
interests of consumers and the subjects of natural monopolies,
providing ongoing availability of goods and services.
Securing unjustified restrictions on the use of certain contractual
forms, restrictions on freedom of development of
the contractual conditions or, on the contrary, disregard of
certain types of behaviour, using contractual instruments
that represent an abuse of “exceptional” position, is an
obstacle to achieving the goal of effective functioning of
subjects of natural monopolies. In this connection, officials
must use the above conclusion in its activities, especially
in the implementation of preventive-regulatory function,
which is expressed in giving consent to the conclusion of
transactions for which the current legislation provides for
a permissive procedure.
Keywords:
freedom of contract, the restriction of freedom of contract, natural monopoly, tariffs, dominant position, abuse of dominance
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Theory and practice
I. Tenberga Prohibition of unlawful interest (riba) as grounds for the refusal from collection and payment of interest in islamic banking The process of coming-into-being of Islamic banking, embracing
financial systems of the states — members of
the Islamic Development Bank (IDB) facilitates a thorough
understanding of activities of Islamic banks being far beyond
the boundaries of Muslim jurisdictions. In particular
over the past years the refusal of Islamic banks, for which
the prohibition of illegal growth of “riba” takes the form of
ius cogens in carrying on its business from collection and
payment of interest is the point of real interest. Analysis of
religious aspects of the prohibition of “riba” has been made
in the paper, as well as a wide range of issues has been
studied relating to the adherence thereto in the activities of
Islamic banks. It is concluded that Islamic banking develops
under the influence of deep religious roots bringing about
the emergence of financial paradigm based on the combination
of something betwixt and between “wasatiya” the rational
carrying out of business activities “iqtisad”, etc.
Keywords:
islamic banking, Islamic bank, unlawful interest (riba), investments (istithmar)
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R.A. Akhobekova, A.A. Zagorodnaya, V.B. Naumov Legal issues of 3D printing As 3D printing technologies advance rapidly, legal
protection of 3D models becomes an important issue.
The paper explores the legal status of 3D models from
an intellectual property law perspective. The authors
also analyse how the creation and further distribution
of 3D models via the Internet may affect the interests of
intellectual property owners. The authors conclude that,
in general, 3D models for 3D printing may be protected in
Russia within an existing IP system. However, 3D printing
gives new perspectives to various theoretical and practical
issues in intellectual property protection. In particular,
such issues as digital use of patents in 3D models and use
of trademarks in 3D models distributed via the Internet
become of special importance.
Keywords:
Intellectual property law, 3D models, 3D printing, copyright, use of patent rights, trademarks, additive manufacturing
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P.A. Skoblikov Misinterpretation of criminal legal provision on the liability for inflicting property damage (art. 165 of russian criminal code) Russian criminal legislation forbids the infliction of property
damage upon the owner or other possessor of
property through deception or abuse of confidence where
there is no evidence of embezzlement (Art. 165 of Russian
Criminal Code). An action is a not sufficiently effective
remedy for these violations, so their number multiplies.
However, courts do not apply Article 165 frequently, thus
making the number of persons sentenced under it less
than the number of federal subjects of Russia. The author
explains this as a consequence of misinterpretation of
Article 165, provides its analysis, and proposes a legal
view which might help victims and law enforcers to protect
rights and legal interests of bona fide parties of civil
relations in criminal process.
Keywords:
target of crime, Article 165 of Russian Criminal Code, criminal liability of malicious debtors, criminal legal means for reimbursement
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E.Yu. Petrov Defect of wills. prospects of russian succession law This paper touches upon the validity of will in the Russian
law. Current regulation includes a lot of specific features
relating to the contestation of will. The testator does not
participate in the procedure of challenging the will; there is
no chance for altering a will. Common part of the Russian
Civil Code has been recently reformed. It caused new
questions about differences between invalid and voidable
will. Using a comparative approach, the author proposes
ways to develop Russian succession law.
Keywords:
succession law, last will, validity, will contest
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A.A. Kostin Due and timely service of process on the defendant as a prerequisite for recognition and enforcement of foreign judgment The paper discusses the definition of “due and timely”
service of process as a precondition for recognition
and enforcement of foreign judgment under Art. 412
(1) of the Civil Procedure Code of Russia (“CPC”) and
Art. 244 (1) of the Arbitrazh Procedure Code of Russia (“APC”).
The review of the doctrine and courts practice suggests that
Art. 412 (2) CPC and Art. 244 (2) APC include two separate
and cumulative requirements relating to the validity
of the service of process. On the one hand, the manner
and the form of delivery of the notification shall comply
with the procedural rules of the country where the service
of process is effected. On the other hand, the notification
shall be delivered within such time limits which enable
the party to prepare the defense.
Keywords:
service of process; international judicial assistance, Hague Convention 1965
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E.S. Khokhlov Measures related to the prevention of violations by undertakings holding a dominant position Most attention in the competition law doctrine is devoted
to liability and other compulsory measures applied
to dominant undertakings. However, the legal status of
a dominant undertaking also includes measures aimed at
the prevention of violations, such as various types of warnings,
recommendations, clearance of commercial (trade)
policies, as well as measures stimulating the adoption of
compliance programmes. Those measures are analysed
in this paper.
Keywords:
undertaking, dominant position, warnings, recommendations, compliance programme, commercial policy
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N.V. Filipenko Legal personality of social communities illustrated by the practice of the constitutional court of the Russian Federation Each of us is a participant of any particular social community.
Social communities attribute new qualitative characteristics
to any relations, so working together allows to
get opportunities that are not available for individuals.
At the same time, many social organisations are recognised
as subjects of law. The author analyses the prerequisites
for such recognition, considers legal types of social
organisations, including legal entities, and ponders on
the correlation between the concepts of “social organisation”,
“legal person” and “legal entity”.
Keywords:
subject of law, social organisation, legal entity
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N.V. Pavlov General meeting of bondholders: theory and earliest judicial cases General meeting of bondholders is a new legal institution
in Russia and a well-known one in many European
countries. As far back as before the Russian Revolution
of 1917, many authors had seen the necessity of its
introduction into Russian legislation, however this was
finally done only a few years ago. This paper presents
a short history of this institution in Russia, its features,
and judicial practice of invalidation of resolutions adopted
at the general meeting of bondholders.
Keywords:
general meeting of bondholders, bondholders’ representative, invalidity of the resolution of general meeting of bondholders
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A.V. Mil’kov On the interpretation of legal liability as an obligation of endurance The paper touches upon the critical analysis of
the widespread academic interpretation of legal liability
as an obligation of endurance. The author assesses this
interpretation as incorrect since an obligation implies
proper conduct based on a free choice of a person,
whereby the concept of endurance describes a state and
does not allow any freedom of choice.
Keywords:
legal liability, obligation, endurance, ought, legal state
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