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Август 2018




Roman Bevzenko Charge and Sell and Buy Back Transaction
Case comment on the judgment of RF SC No. 32-КГ17-33, 9 January 2018
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Vladimir Kostsov Who Carries the Risk of Failure to Achieve the Result of a Medical Operation?
Case comment on the judgment of RF SC No. 5-КГ18-15, 27 March 2018
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Mikhail Zhuzhzhalov Translation of the Judgment of the Federal Supreme Court of the Federal Republic of Germany XI ZR 562/15 of 4 July 2017
While trying this case, the Federal Supreme Court of the Federal Republic of Germany assessed, from the point of view of unreasonable hardship, the provisions of the loan agreement with an entrepreneur concerning the payment for the processing of his application for credit. As the payment is independent from the term of the loan, such provision varies from the default rule and its application in the standard terms requires additional substantiation, which the lender tried to provide but failed.
Keywords: standard terms, control over the content, loan agreement
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Anna Arkhipova Is Insurance a Means of Securing Obligations?
Judicial practice has recently seen cases where courts recognize that insurance secures an obligation. There are also a number of legal acts where insurance is mentioned as «securing» an obligation. But is insurance really security? The article aims to find an answer to this question. To do this, the author first identifies the main characteristics of security: its specific aim and its accessory nature. Then the author examines whether, and to what extent, various types of insurance fit these criteria. Most types of insurance do not have the aim of securing an obligation, as they do not protect anyone but the policyholder himself. Only contractual liability insurance and property insurance in favor of third parties may have the aim of securing an obligation. This aim, however, is secondary and subordinate to the principal aim of insurance. Therefore, its securing function is limited. Insurance does not qualify as an accessory obligation, either. Some of its elements may seem to be accessory, but in effect have different roots and stem from the core principles of insurance and not from its securing function. This leads to the conclusion that insurance, as a rule, is not security. Only certain types of insurance may have this function, and to achieve it, the insurance must be specifically tailored by the parties. The courts should be cautious in establishing whether a particular insurance contract has a securing function.
Keywords: insurance, security, contract liability insurance, accessory nature
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Dariana Epikhina Liability for Jointly Caused Damage
This article considers the conditions of liability for the same damage caused by multiple tortfeasors, the burden and standard of proof of causation and the ways out of situations with complicated (alternative, cumulative, or overtaking) causality in England, France, Germany, and Switzerland. The author analyses the evolution of norms and doctrines regarding the liability of joint tortfeasors and judicial practice dealing with the question of where joint and several liability of multiple tortfeasors for the same damage ends and their proportional liability begins. According to the author, the scope of art. 1080 of the Civil Code of the Russian Federation covers not only cases of intentional complicity, but also actions (or inaction) of independent tortfeasors. The author suggests that in certain situations a doctrine of «softened» solidarity be used in order to balance the interests and risks of both the injured person and the tortfeasors. It assumes the possibility of individualizing the amount of solidarity, taking into account the amount of liability that each of the tortfeasors would carry if he were the sole tortfeasor. This helps to avoid proportional liability when an independent tortfeasor could have caused all the harm and did not know that he was not acting alone. It also seems fair for a tortfeasor who alone could not have caused all harm, because he bears no liability for the actions of another party and does not bear the risk of the latter’s insolvency as with joint and several liability.
Keywords: tort, joint and several liability, causation, article 1080 of the Civil Code of the Russian Federation
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Anna Smola Standards, Evidence and the Supreme Court
The article examines how the term «standard of proof» is currently used by the Supreme Court of the Russian Federation and the possibilities for the further development of this legal concept. The article is structured in two parts. The first part summarizes the ways the concept is applied to commercial disputes, based on the analysis of a number of judgments of the Chamber in question mentioning the term «standard of proof». The second part analyses the interplay between borrowed terminology, including the term prima facie, and domestic procedural law. It is demonstrated that, on the one hand, there is an obvious need to develop standards of proof which would determine the legal approaches to the evaluation of evidence by the court. The author argues that the reason for this is the ability to formulate identical requirements for presenting evidence in similar cases and, therefore, to maintain the principle of equality before the law and the court. So far, as it follows from the research the author had made, the use of the term «standard of proof» is currently limited to certain categories of special disputes in bankruptcy cases. There is also uncertainty in the correspondence between the comparative perspective and the legal framework; the latter usually remains stable for a long time. Nevertheless, the author offers some ways to distinguish and differentiate between various standards of proof (presumably three). The article reaches the conclusion that the further development of the law in this area depends on judicial practice, because shaping the law of evidence is primarily the task of judges. Later, the rules elaborated by the courts (and, most likely, systemized by scholars) may acquire a statutory form, as it happened with the formula «with a reasonable degree of certainty», which essentially has already been established by the legislature as a standard of proof.
Keywords: standards of proof, transfer of burden of proof, evaluation of evidence, special disputes in bankruptcy cases, Supreme Court
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Vadim Alexeev Unitary Real Estate Item: Gradual Progress to the Goal or Disruption of Legal Regulation
The article contains a critical analysis of the amendments to the real estate legislation proposed by the Ministry of Economic Development of the Russian Federation. The amendments are aimed at the introduction in the Russian civil law of the traditional continental concept of a unitary real estate item (when a building on a land plot is treated as part and parcel of this land plot). This aim was suggested by the Conception of Amending the Federal Legislation in Order to Provide for the Legal Regime of Unitary Real Estate Item. The author, taking into account the position of the Russian President’s Council for the Codification and Improvement of the Civil Legislation, concludes that the suggested amendments do not further the suggested aim. Instead of improving the criteria of the real estate, the implementation of the amendments will lead to the abandonment of the objective criteria of the real estate. The result will be the loss of even those achievements in the clarification of the notion of real estate which we currently have. Criticizing the abovementioned Concept, the author concludes that the intended experiment is an attempt of at least premature interference into the legal regulation of such important sphere as the real estate. It is pointed out that the radical reforms in the legal regulation of real estate may have the most serious negative consequences for the protection of property. The author argues that the conclusion on the necessity (or the absence of necessity) of the transition to the unitary real estate item must be based on a serious multilayer research.
Keywords: real estate, unitary real estate item, building, construction, construction in progress
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Dmitry Gloov Invalidity of Transactions on the Basis of Article of the Civil Code of the Russian Federation
The article focuses on the analysis of practice in the application of art. 168 CC RF, which has been in force since 2013 and establishes the general rules for the voiding of transactions that contradict the requirements of law or any other regulatory act. The author attempted to establish how the сommercial (arbitrazh) courts distinguish between cl. 1 and cl. 2 art. 168 CC RF and to systemize the cases and grounds for declaring a transaction void. As a result of the analysis, the author draws the conclusion that the version of art. 168 CC RF in force leaves no room for voidable transactions, as the explanation of the supreme judicial authority in Resolution of the Plenum of the Supreme Court RF 23 June 2015 Nо. 25 led to almost complete exclusion of voidability. Thus, in accordance with commercial (arbitrazh) practice, an absolute majority of civil transactions are being void rather than voidable.
Keywords: cl. 1 and 2 art. 168 CC RF, invalid transactions, voidable transactions, void transactions, transactions violating the legal requirements
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