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ARCHIVE FOR 2017    RUSSIAN

Июль 2017

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

M.L. Galperin Unavoidable alterations in execution: is the challenge procedural or substantive?
The paper addresses the problem of execution alterations in enforcement proceedings from the perspective of procedural and substantive provisions; the author suggests ways for enhancing enforceability of judicial orders in civil cases. Procedural mechanisms have limited efficiency resources unless the substantive part is improved by providing more grounds for the monetary obligations replacing the nonmonetary ones as well as by using a pragmatic approach to the remedies available under substantive law, and to fair allocation of enforcement costs between the party with the obligation and the State. At the same time, individual enforcement measures need to be coordinated with the available remedies safeguarding such measures.
Keywords: enforcement proceedings, remedy, valid judgment
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V.V. Yarkov Global code of enforcement lays foundation for enforcement harmonisation
The author describes the soft law instrument in the enforcement field that has so far been developed by the International Union of Judicial Officers and explains its relevance for the Russian legal system. On the one hand, most provisions of the Global Code demonstrate that the domestic enforcement legislation is moving in the right direction towards simplification and further automation. On the other, there are quite a few provisions that can help lawmakers develop the national system of enforcement more in line with international practices.
Keywords: enforcement of judgments, enforcement proceedings, Global Code of Enforcement, soft law
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E.N. Kuznetsov The nature and structure of the right to execution of judgments and orders of other bodies under jurisdiction
The paper examines the nature and structure of the newly introduced right to execution of judgments and orders of other bodies under jurisdiction in Russia. The author distinguishes between the right to voluntary execution and the right to enforcement, analyses the substantive and procedural aspects of the right to execution, and concludes that the latter represents an independent form of legal protection.
Keywords: right to execution, legal protection, execution proceedings
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A.V. Kudriavtseva, A.A. Podgorniy Cooperation between enforcement creditors and court bailiffs: opportunities and prospects
This paper examines the effectiveness of cooperation mechanisms for enforcement creditors and court bailiffs in Russia as well as the scope of their cooperation. It is argued that for the implementation of judgements to be swift and effective, the interested parties will need to undertake a concerted effort through enforcement proceedings to locate and sell assets of the debtor. Enforcement creditors can cooperate by acting upon instructions from the bailiff and/or proactively, assisting with the search of assets, presenting legal opinions on certain enforcement aspects, and providing information for the auction.
Keywords: enforcement proceedings, enforcement of judgments, court bailiffs, enforcement creditor’s rights
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Discussion Board

Yu.E. Monastyrsky Dilution of corporate rights and resultant loss
This paper provides a legal insight into the nature and characteristics of the loss in corporate relations where it is used as remedy by stakeholders. The author finds that the reform of civil legislation requires further improvement as the current model of managerial responsibility unreasonably provides, in some cases, for the recovery of loss in the absence of criminal intent while the essence of the shareholders’ agreement remains diluted making it impossible to impose sanctions for not voting in a certain manner.
Keywords: corporate responsibility, managerial responsibility, losses, shareholders’ agreement, protection of shareholders’ rights, corporate member’s rights

 

E.A. Borisova Fast track stream in civil proceedings: international law standards, national and international practices
This paper gives an overview of key issues concerning regulation of the small claims track in civil disputes, and provides analysis of the Council of Europe recommendations on the fast track procedure for certain types of civil cases along with the measures that have been adopted by Russia and the EU to facilitate access to justice.
Keywords: international law standards, fast track procedure, amount claimed, principles of civil litigation, civil justice, guaranteed judicial protection
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V.A. Belov Why study exchange law?
A very specific question used as title of the paper leads to formulation and interpretation of issues that are far more global in scale. What is jurisprudence — is it science of private law? What does it study? Why is it needed? What is its social value? What are its aims and objectives? What functions does it perform? What is its purpose? What legal research deserves to be called scientific? What such research should focus on? What methods of research should be employed? What are the limits for historical and foreign practices in contemporary Russian jurisprudence? The paper is intended to provide both substantive and methodological backgrounds for academia, alumni, and undergraduate students undertaking independent research as part of their coursework, theses, dissertations, papers, and legal science publications.
Keywords: exchange law, science of private law, subject and scientific method of legal research, purpose and function of legal science, historical method (in jurisprudence), comparative law
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Press Release

 

 

Theory and practice

I.R. Medvedev Moscow renovation plan through a legal lens
This paper examines the concept of the ambitious Moscow Renovation Plan, which was announced in 2017 by Moscow’s mayor to replace the ageing housing stock. The author emphasizes the relationship between renovation and the legal framework governing the eminent domain and critically assesses the federal legislator’s attempt to empower the Moscow city government to demolish entire neighbourhoods. It seems right to have public consultations and feedback in the preparation of such projects, and study carefully other countries’ experience. Expropriation is a measure of last resort in the absence of more effective strategies for urban development where common mechanisms just do not work. The author thinks that sentimental values should also be compensated when we talk about relocating residents from their homes.
Keywords: renovation, Moscow, eminent domain, public use, judicial deference, compensation, sentimental values
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P.G. Sychev A differentiated approach to criminal proceedings in cases involving economic and business crimes (following Russian Supreme Court resolution)
Economic crime has become a national security concern in Russia. Nevertheless, the legislator tends to lessen the criminal liability imposed on those committing economic crimes. The Russian Supreme Court’s Plenary Resolution No. 48 of 15 November 2016 identifies the specifics of criminal proceedings in cases involving business and economic crimes. The author, however, believes that the highest court has not covered all procedural nuances and has also narrowed the substantive basis for these proceedings in its resolution.
Keywords: economic security, differentiated approach to criminal proceedings, economic and business crimes, Russian Supreme Court’s Plenary Resolution
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A.V. Ilyin Establishment by trial and appellate courts of commonly known fact
Understanding what a commonly known fact is requires appellate review of the court findings as to whether a specific fact is commonly known. The bench needs no presumption of common knowledge of the fact, which, in turn, requires verification. It is incorrect to separate the proof of common knowledge of the fact from the proof of its existence as the proof of common knowledge of a factual circumstance, for the purposes of its use as the basis for lifting the burden of proof in all cases, is identical to the proof of the existence of this circumstance. The required verification must be carried out ex officio by both trial and appellate courts undertaking a critical analysis of several freely publicly available information sources.
Keywords: proof, lifting the burden of proof, commonly known fact, adversarial principle
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E.V. Obukhova Jurisdiction risks in securities transactions
The legal consequences of cross-border securities accounts and transactions often go beyond the reasonable expectations of the parties. Serious risks arise not only because of differences in the treatment of securities and the choice-oflaw clause but also given extraterritorial application of foreign public law. More specifically, an element of public law in the securities regulation sometimes precludes party autonomy and paves the way for extraterritoriality of public law in legal relations between the parties. The paper analyses both grounds and precedents of extraterritorial application of US laws in the securities regulation. The study of extraterritoriality becomes increasingly relevant in the light of recent litigations such as UBS AG disclosures forced by the US regulator despite the bank rules. The effects of extraterritoriality are regularly seen by Russian companies doing business in the US (for example, Gazprom PJSC and others). The research has focused on American law for its unique methodological approach to determining the scope of the rules as well as practical considerations: the US stock market and securities industry is one of the most highly demanded and regulated businesses nowadays.
Keywords: extraterritorial jurisdiction, securities market, US stock market, private and public regulation, securities accounts
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A.Yu. Glazunov Right to dividend: economic analysis and legal regulation
The paper dwells on the right to dividend. Under the current corporate law of the Russian Federation a shareholder is entitled to receive dividends only if both a board of directors and general shareholders’ meeting have decided to declare dividends. However, the economic analysis of the right to dividend reveals that this type of legal regulation may lead to opportunistic behavior by controlling shareholders, especially in the countries with the prevailing concentrated ownership structure. The author analyses the US court decisions where economic arguments are taken into consideration, and concludes that the legal rules on the dividend policy should be more refined in the Russian Federation. Particularly, the plaintiff should have an opportunity to overcome the business judgment presumption if the decision not to pay dividends has no reasonable economic justification. Moreover, holding one shareholder liable to another can also help resolve the problems of opportunism.
Keywords: right to dividend, law and economics, dispersed ownership structure, concentrated ownership structure, business judgment rule
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E.A. Evdokimova Party autonomy and proprietary security
Generally, the secured creditor may choose either to enforce their right as ordinary creditor or through proprietary security. However, Russian enforcement proceedings are rather specific in this regard. Pursuant to Art. 78 (2) of the Federal Law On Enforcement Proceedings, the creditor having a writ of execution on the debt collection shall first satisfy secured claims. The author looks at the rationale behind the rule and analyses regulations in foreign jurisdictions. It is concluded that the secured creditor’s autonomy shall be restricted in order to protect unsecured creditors in cases where the debtor’s property is not sufficient to satisfy the claims of all creditors involved in enforcement proceedings.
Keywords: security interest, proprietary security, secured creditor, priority, party autonomy, enforcement proceedings
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M.V. Kustova Distinguishing between public (municipal) needs and those of autonomous institutions in assessing compliance with competition laws
This paper looks into the use of public funding by autonomous institutions that have received a new type of subsidies outside their public (municipal) contract as part of the ongoing reform of public (municipal) institutions. An absence of statutory limitations on the grounds the founder can state to substantiate subsidies for the needs of budgetary and autonomous institutions could lead to abuses, and granting of subsidies is often treated as circumventions of the procurement rules by competition authorities and scrutinised by courts. At the same time, a distinction between public (municipal) needs and needs of autonomous institutions should be made based on the intent to ensure the specific operations of autonomous institutions (supporting their economic separation) rather than considering consistency of allocations with the functions and objectives of institution founders.
Keywords: public (municipal) needs, procurement, autonomous institutions, Federal Law on Contract System, antimonopoly controls
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Foreign experience

P.A. Shefas BREACH OF CONFIDENCE. doctrine of confidence in english case law
The author examines the doctrine of breach of confidence in English case law. This doctrine was born in England, has had bearing on the Principles, Definitions and Model Rules of European Private Law (DCFR), and then has been incorporated into the Articles 8 and 10 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. The author describes the evolution of the breach of confidence law, and explains the duty of confidence and the unauthorised use of confidential information.
Keywords: breach of confidence, confidential information, damages
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