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ARCHIVE FOR 2017    RUSSIAN

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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