Журнал ЗАКОН

Case comment on the judgment of RF SC No. 305-ЭС17-14514, 16 January 2018

Case comment on the judgment of RF SC No. 305-ЭС17-7826, 14 December 2017

Case comment on the judgment of RF SC No. 308-ЭС17-14831, 21 December 2017

Case comment on the judgment of RF SC No. 78-КГ17-90, 30 January 2018

Case comment on the judgment of RF SC No. 305-ЭС17-4886 (1), 24 October 2017

German Federal Supreme Court Judgment VII ZR 177/13 of 23 January 2014 and Case Commentary This case was brought by the client who demanded the return of an overpaid fee from the contractor after a considerable lapse of time, challenging the validity of the payment clause in the agreement with contractor. The submission was dismissed by lower courts invoking the German doctrine of estoppel. Nevertheless, the German Federal Supreme Court found that it is not enough merely to mention the party’s earlier contradictory position. In such cases, the unconscionable conduct will be declared unfair only where later claims may impose a serious detriment on the opposing party.

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Keywords: unfair, abuse of process, estoppel, unacceptable damage

This article describes results of an analysis of 2014–2017 court cases relating to the disputes involving concession and other PPP projects structured according to either federal or regional laws. The author considers and analyses the most important conclusions of the courts on the matters of public procurement for PPP agreements, objects of concession agreements, financing and taxation of PPP projects, amending and termination of project agreements, deeming agreements to be invalid, using contract models not covered by the federal legislation, as well as arbitrability of concession disputes.

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Keywords: public-private partnership, concession, termination of a contract, privatization, arbitrability

This article concentrates on the scope of court decisions made on disputes between debtors and creditors prior to the bankruptcy process. It discusses protection of the rights of creditors or third parties in insolvency cases and against invalid claims approved by court decisions in fictitious disputes they were not involved in. Based on the analysis and comparison of judgments which deal with this problem (including those of the Russian Supreme Court) the author argues that the domestic law enforcement solution does not properly protect creditors from debtor abuse. Therefore, the principle of relativity of court decisions should be given a greater scope in bankruptcy proceedings to balance the interests of all parties.

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Keywords: insolvency (bankruptcy), creditors’ claims, abuse of right, binding effect of court orders, false claims

On the Practice of Applying Clause 9 of Article 24.1 of Bankruptcy Law This paper considers the practice of applying сlause 9, аrticle 24.1 of the Federal Law «On Insolvency (Bankruptcy)», which was adopted by the Economic Chamber of the RF Supreme Court in 2017. The norm in question is analysed and it is shown that because of its insufficient elaboration by the legislator, the social and economic significance of compulsory liability insurance of bankruptcy administrators was largely lost. The Economic Chamber managed to restore the socio-economic meaning of the said relations, though making some mistakes in its interpretation of rules on insurance. This suggests that the situation in domestic insurance law, in terms of both law-making and law enforcement, is far from being normal.

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Keywords: insurance, insolvency (bankruptcy), right of recourse intent in insurance, compulsory liability insurance of bankruptcy administrators

The article is devoted to the analysis of tax liability in terms of general principles of public law. The main attention is paid to cases when the tax obligation (duty to pay legally established taxes and fees) is formulated vaguely or contradictorily. In fact, in such cases an extensive interpretation of tax obligations is applied, which under certain conditions conflicts with the principles of public liability. In order to avoid these contradictions, tax and investigative bodies in border situations propose to prosecute taxpayers only in case of intentional violation. The article argues that instead of this approach it is possible and necessary to talk about the absence of wrongful conduct irrespective of intention. The rationale of this approach being that without clear prohibition any action should not be considered unlawful. The article also analyses the overall correlation of intent and negligence in tax law.

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Keywords: tax, tax liability, wrongfulness, intent, negligence, accident

This paper looks at recent bankruptcy developments, novelties and improvements in subsidiary responsibility, and suggests how the latter can be used as part of management strategy. The authors conclude that this institution helps ensure good faith in the acts of economic agents in the sphere of business and finance, which ultimately enhances mutual trust between them.

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Keywords: subsidiary responsibility, institution, economic development, bankruptcy, creditor, debtor

Based on the Judgment of the Supreme Court of the Russian Federation No. № 84-КГ17-6, 14 November 2017 A prisoner was confined six months in a cramped cell that did not meet statutory requirements for accommodation. He sued the prison authority seeking compensation for psychological damage. A lower court awarded RUB 4,500 in compensation. But the Civil Division of the Russian Supreme Court ordered a fresh trial as presumably the prisoner did not suffer any pain in the cramped cell and filed a bad faith lawsuit. Despite the stated principle of good faith, the Division’s decision appears to be both unconscientious and clearly unethical. The prisoner’s case shows an unhealthy tendency of courts to use good faith as a pretext for deciding any disputes in favor of the government.

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Keywords: good faith, Supreme Court, psychological damage, tort

This paper approaches the issue of the temporal scope of Federal Law No. 266-ФЗ of 29 July 2017 as being applied by commercial courts in selected cases. The Law in question is misapplied as a result of the unfortunate wording of its art. 4(3). Since this Law has no retroactive effect, courts should apply its substantive provisions strictly to subsequent circumstances in order to avoid errors and produce case law that is consistent and coherent.

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Keywords: bankruptcy, secondary liability, temporal scope of the law

This article summarises over 60 cassation judgments relating to the application of art. 174 (2) of the Russian Civil Code that stipulates two separate grounds of invalidity of transactions where transactions are concluded by a representative or legal entity’s body acting without power of attorney to the detriment of the represented individual or legal entity. The practical consequences of the highest courts' clarifications are also considered in the context of art. 174 (2) of the Russian Civil Code. The research highlights a number of pressing problems, including that of distinguishing between the two elements of transaction invalidity under that clause, the standard of counterparty’s good faith in bargaining that leads to an evident detriment to the represented person, what counts as evident detriment and other criteria.

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Keywords: invalidity of transactions, to the detriment of represented individual or legal entity, collusion, evident detriment