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ARCHIVE FOR 2018    RUSSIAN

Июль 2018

CONTENT

 

 

Chief editor’s column

 

Interview of the issue

 

The Event. Comments of the Experts

 

Topic of the issue

S.S. Pokrovskiy Developments and Challenges in the Regulation of Civil Liability for Bankruptcy
This article gives insight into perpetual reform of the legislative framework for civil liability for a company’s insolvency (bankruptcy) filing. The author describes distinctive features of the domestic regulation that are not common to advanced jurisdictions and cause systemic inconsistencies in the legislative framework, with its structural elements being borrowed from public law to substantiate personal assets liability in bankruptcy cases. This kind of phenomenon is contrasted with other types of liability linked to significant influence over the company. The importance of doctrinal differentiation between interdisciplinary concepts such as “insolvency” and “bankruptcy” is explained, and improvements to the civil liability regime for harm to creditors’ property interests in insolvency processes are suggested.
Keywords: debtor controlling person, secondary liability, tort, bankruptcy, insolvency
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E.D. Suvorov Secondary Debtor’s Defences to Insolvent Person’s Liabilities as a Balancer of Constitutional Interests
This article examines the defences that can be raised by persons secondarily liable in bankruptcy proceedings. It is demonstrated that the lack of effective defences (exceptions) to secondary liability drives the regulation out of balance and disproportionately restricts constitutional rights of individuals. More specifically, the constitutional right to equality before the law, the right of legal recourse and the right of private property are affected by the current regulation. Secondary liability defences are divided into personal defences that are raised by the person being held liable and the principal debtor’s defences that should extend to the former. It is stressed that no adjudications can be used against persons secondarily liable unless delivered with their meaningful participation in the decision process. Accordingly, amendments are suggested to Russia’s Supreme Court Plenum Resolution No. 53 dated December 21, 2017.
Keywords: secondary liability, secondary debtor’s defences, res judicata, equality principle, right of legal recourse, right of private property
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V.V. Spesivov Evidentiary Standards for Secondary Liability in Bankruptcy Cases
This article presents a practical perception of the new reality resulting from the changes to the bankruptcy law that introduced the concept of so-called secondary liability of debtor’s controlling persons. The author investigates how these novelties affected the list of circumstances that require proof to impose secondary liability, as well as distribution of burdens and standards of proof for subsidiary liability in a bankruptcy case. The analysis is made on the basis of the established judicial practice which was obviously taken into account by the legislator when elaborating the aforementioned changes, along with the official explanations firstly provided by the Russian Federal Tax Service and then by the Russian Supreme Court Plenum Resolution No. 53 dated December 21, 2017.
Keywords: secondary liability in bankruptcy cases, debtor’s controlling persons, presumptions in cases of bankruptcy, failure to submit debtor’s bankruptcy application, evidentiary standards for presumption
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Yu.V. Litovtseva The Applicability of the Russian Constitutional Court’s Legal Position on the Recovery of Damage Caused by a Tax Crime in Disputes That Involve Controlling Person Liability
The author compares the Russian Constitutional Court’s legal positions formulated in Resolution No. 39-P dated December 8, 2017 with their interpretation by the Russian Federal Tax Service outlined in Letter No. СА-4-18/45@ dated January 9, 2018. Special emphasis is placed on whether the Constitutional Court’s approaches to the reimbursement of damage caused by a tax crime can apply to disputes involving secondary (subsidiary) or other liability of persons controlling the debtor under bankruptcy legislation. The author comes to the conclusion that the Russian Federal Tax Service erroneously explains the matter and unreasonably restricts the application of the higher Court interpretation.
Keywords: controlling entity, secondary liability, damage, losses, harm
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E.V. Mokhova Jurisdiction and Applicable Law for Directors’ Liability in Cross-Border Insolvency Cases
The article raises the question of determining the jurisdiction and applicable law for directors’ liability for the breach of insolvency-related duties: the problem is posed on a global scale, on a regional (European) scale, and in a more local Russian context. The emphasis is made on the experience of the European Union in resolving the issues. The author analyses the chain of cases from Gourdain to H. v. H.K. to Kornhaas, where the Court of Justice has gradually clarified which cases fall within the competence of the bankruptcy court (vis attractiva concursus) and which cases come within the scope of the principle of lex fori concursus. The article discusses the phenomenon of insolvencification of directors’ liability, i.e. corporate provisions being reclassified as bankruptcy provisions with a view to applying the lex concursus. It raises the following questions: how does insolvencification of directors’ liability correspond to the freedom of establishment and corporate mobility? Would the insolvencification of directors’ liability lead to regulatory competition because of the States’ desire to attract investors, minimising the standards of management responsibility and thus making their territories more attractive for business? The EU experience can be useful in the light of the discussion of the prospects for the establishment of cross-border insolvency regulation for the EAEU countries.
Keywords: cross-border insolvency, vis attractiva concursus, lex fori concursus, lex societatis, directors’ liability, breach of insolvency-related duties, secondary liability
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Press Release

 

 

Theory and practice

I.S. Shitkina Liability of De Facto Controlling Persons Under Corporate Legislation
The article is focused on liability of de facto controlling persons under corporate legislation. The author considers the nature of the de facto control, introduces a notion of persons de facto controlling legal entity. The author further shows that to make de facto controlling persons liable all elements of civil wrong should be proved. The articles provides for analysis of court practice and considers trend of coming into being of such institute.
Keywords: de facto control, controlling person, person being under control, beneficiary owner, civil liability, asset liability, autonomy of will
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A.Yu. Ivanov, E.A. Voinikanis Trustee and Antimonopoly Regulation in the Digital Economy
Among the amendments included in the fifth antitrust package, most questions and objections were raised by the trustee provision, since this instrument was never used and approached by experts or practitioners in Russia. The article analyses the functions and obligations of monitoring trustees and the tasks that they have to perform. The facts, examples and expert views presented in the article show a widespread and systematic use of trustees to ensure the effective implementation of remedies in complex cases, primarily in mergers. Particular attention is paid to the role and importance of trustees in antitrust cases involving the digital economy, where it is necessary to provide access to information and data, to ensure transfer of technology and the use of intellectual property rights.
Keywords: trustee, digital economy, mergers, antitrust regulation
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A.N. Kozyrin Forfeit under Russian Tax Law: a Means to Secure Payment of Tax Liability or a Sanction for Tax Noncompliance?
This article examines one of the topical issues in Russian tax law, namely the definition of forfeit under current Russian legislation on taxes and charges. It analyses a radical transformation in the legal nature of forfeit from the sanction for tax noncompliance (in the 1990s) to the means of securing payment of tax liability (upon enactment of the Tax Code of the Russian Federation in 1999). The research identifies the reasons behind this alteration and assesses their impact on balancing the public and the private interest in tax law. It reviews amended rules for forfeit calculations as applied to both companies and individuals. The new method of corporate tax arrears calculations disfavours long delays in tax payments. The changes that took place in 2017 in the system of public finance management and the creation of a single fiscal channel in Russia that combined taxes, customs payments and insurance contributions make it necessary to take a fresh look at the relationship between securing fulfilment of tax obligations and securing payment of customs duties and taxes in accordance with the customs legislation of the Eurasian Economic Union (EAEU). A comparative method is used to look at the means of securing payment of customs duties and approaches to defining the forfeit being charged as late payment interest on customs duties and taxes across EAEU member states.
Keywords: tax law, forfeit, fiscal principle, tax liability, securing payment of tax liability, sanction for tax noncompliance
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A.D. Nechaev Concealment of Property from Collection Enforcement Action (Article 199.2 of the Russian Criminal Code): Proposals for Qualifying Tax Crimes
The paper deals with the Russian Supreme Court interpretation of the concealment of property from forcible tax and fees collection (article 199.2 of the Criminal Code of the Russian Federation). Drawing on the national Constitutional Court’s legal positions, theoretical and doctrinal approaches related to this issue, and lexical semantic analysis of the text of the Criminal Code, the author suggests a new conception. Nowadays, the concealment is defined by the Supreme Court as an act committed with the aim of putting obstacles in the way of forcible tax and fees collection. It is argued that avoiding forcible collection should be identified as the aim of this crime. Moreover, the article proposes an updated version of the point in time when the crime is deemed completed.
Keywords: tax crimes, concealment of property, arrears
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A.S. Vorozhevich The Protection Challenge for Exclusive Rights to Drugs
“Strong” patent rights are an important condition for pharmaceutical market cultivation and entering of breakthrough foreign products on the market. However, Russia has not yet developed an effective mechanism for protecting the patent rights of originators. Based on the analysis of court decisions and foreign practices, the author suggests ways of solving this problem.
Keywords: invention, patent, drug, patent infringement, injunction, provisional measures, damages
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P.G. Fedorov Conflicting Interests in Letting Property and Third Party Use. Judicial Approaches in Russia
The lease necessitates the faithful fulfillment of obligations by the parties to the contract. The functioning of contractual relationships is significantly complicated by the involvement of a third party who uses the property with no rights to it. In the context of these relationships, attention is focused on the legal and economic consequences of such use.
Keywords: lease agreement, sublease agreement, vindication claim, negatory claim, unjust enrichment
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K.A. Blinkovsky Several Trends in the Evolution of the Law of Obligations in Russian Codifications
The article discusses some trends changing the special part of the law of obligations in Russian codes. Most changes were focused on contractual types: some changed their position in the code, some were incorporated, and others were removed. But if the focus is shifted from contracts to individual obligations arising out of agreements, different trends can be seen. Their comprehension will help to build a specific theoretical discipline — private law policy as applied to obligations.
Keywords: obligations, contracts, private law policy, codification
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