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ARCHIVE FOR 2017    RUSSIAN

Август 2017

CONTENT

 

 

Maria Erokhova Transfer of Property Burdened by a Judgment: The Scope of Procedural Succession
Case comment on the judgment of RF SC No. 4-КГ17-10, 25 April 2017
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Artem Karapetov Contract Termination Fee Reduction
Case comment on the judgment of RF SC No. 309-ЭС17-1058), 28 June 2017
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FREE TRIBUNE

Anton Ivanov Problems Related to Statutory Change in the Start of Ten-Year Objective Limitation Period
Following a ruling by the Constitutional Court of the Russian Federation, at the end of 2016 the national legislator moved back the starting point for the ten-year objective limitation period to 1 September 2013, when it was established as part of Russian legislation. The author does not see this approach as very effective. First, it takes no account of the fact that the RF Constitutional Court finds retroactive application of the ten-year limitation unacceptable only in the case of demand liabilities while the amendments change starting point for all types of extended limitation under the Civil Code of the Russian Federation. Second, it complicates prescription for possessors. In fact, objective limitation would give them a chance to use acquisitive prescription without putting possession at risk. This risk existed because acquisitive prescription was erroneously tied to the running out of the limitation period. As the limitation period was contingent on subjective elements (the claimant knew or should have known of the breach), the commencement of acquisitive prescription was uncertain. Therefore, any attempt to claim acquisition of ownership by virtue of acquisitive prescription could have led to the loss of possession after the real owner’s demand. The ten-year limitation period which is triggered objectively by the breach has fixed this flaw. However, now it will end only in 2023.
Keywords: acquisitive prescription, limitation period, objective limitation period, amendments to the Civil Code of the Russian Federation
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Vitaliy Kalyatin On Certain Developments in International Intellectual Property Regulation
International agreements are an important part of the intellectual property protection system across the globe. This article discusses some major patterns of the global intellectual property regime and delivers conclusions regarding its further development. The national interest may change and reasonable participation in a specific international agreement depends on the global role the country is currently playing. The author finds that neither leaders nor outsiders are interested in concluding new international agreements, but it is the group of second leading countries that are most interested in it. One could say that in the near future international regulation will combine specific provisions on a global scale with bilateral agreements and soft law instruments rather than multilateral agreements; and the intellectual property regulation will be centered on electronic commerce rather than copyright protection.
Keywords: intellectual property, copyright, international agreements, soft law, collective management organizations
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Stanislav Garanzha Commentary on the Case Law Review Concerning Russian Legislation on the Contract System in Public and Municipal Procurement of Goods, Works and Services (adopted by the RF Supreme Court Presidium on 28 June 2017)
The Review summarizes the three-year case law concerning Federal Law No. 44-FZ of 5 April 2013 «On the Contract System in Public and Municipal Procurement of Goods, Works and Services»; it explains approaches to dispute resolution throughout the procurement procedure from formulation to performance. The author comments on certain aspects of the Review including (1) the consequences of not having a contract or signing it in breach of the procedure; (2) contract modifications for extra work in construction; (3) request for proposals, contract enforcement; (4) breach of contract penalties; and (5) the consequences of avoidance of transaction.
Keywords: public procurement, public contract, municipal contract, Law on the Contract System
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Olga Pleshanova The Effect of Security Transactions in the Parties’ Bankruptcy: Looking for a Regulation Model
The article is concerned with the settlement of obligations secured by means of property character in bankruptcy cases. The emphasis is upon security deposit as a means of securing the performance of obligations recently incorporated in the Russian Civil Code. The examination also covers other security means both defined and non-defined in the Russian Civil Code and identifies problems arising in bankruptcy of parties to the secured obligations. The actual judicial practice shows that the level of creditors’ claims satisfaction in bankruptcy cases substantially differs depending on the means of securing the performance of the debtor’s obligation. Some of the security means put creditors in a positition that is even better than those of pledge creditors. The author argues for the undifferentiated regulation of the effect of creditors’ claims satisfaction whatever the security means have been applied.
Keywords: means of securing the performance of obligations, security deposit, pledge, bankruptcy
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Reinhard Bork Economic Analysis of Transaction Avoidance in Insolvency
This article reviews the functions of transaction avoidance in German insolvency law. First it considers the effectiveness of transaction avoidance law from the point of economics. The author evaluates what incentives are created by the actual transaction avoidance provisions and how do they affect the moment the insolvency petition is filed and the possibility of rescuing the company. Separately the author gives the evaluation of strategies of the secured creditors, whose interests are not the same with the general body of creditors. The second part analyzes the prerequisites which are mandatory for the successful avoidance of the transaction.
Keywords: transaction avoidance, fraudulent conveyance law, economic analysis of law, bankruptcy, insolvency
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