Журнал ЗАКОН

Case comment on the Judgment of RF SC No. 305-КГ17-23457, 27 July 2018

Case Comment on the Judgments of RF SC No. 306-ЭС17-12245 and No. 305-ЭС17-14583, 28 May 2018

Case Comment on the Judgment of RF SC No. 14-КГ17-31, 20 February 2018

Translation of the Decision of the Supreme Court of Austria № 4Ob81/17s of 26 September 2017 (and Commentary) Is it allowed to quote photos? For domestic judicial practice this question is relevant and discussed, in particular, in the Decision of Supreme Court No. 305-ЭС16-18302 dated 25.04.2017. This article explores the experience of Austria. In the case under review, the Austrian Supreme Court, taking into account the amendments to the Austrian Copyright Law, determined the conditions under which the quotation of photographs was permissible. Along the way, the court decided another noteworthy issue — the question of the relationship between constitutionally-based freedom of speech and civil law-based copyright.

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Keywords: author, copyright, freedom of speech, citation, photograph, injunction

German Federal Court of Justice Judgment I ZR 174/14 of 26 November 2015: Case Commentary In this case, decided by the Supreme Court of Germany (Bundesgerichtshof) in 2015, a German copyright holder demanded a German internet provider block access to a pirate site with a server in Russia. The provider objected, pointing out the high costs of the blocking measures and their ineffectiveness. The Court ruled that the problem must be solved keeping in mind fundamental human rights, such as the freedom to conduct a business and freedom of information. The Court ruled that such website blocking is possible in principle, but only as a last resort. According to the Court, before demanding the blocking of the website at the internet provider level, the copyright holder must take reasonable measures to locate (e.g., with the assistance of private detectives) and prosecute the website operator. As a result, the right holder was denied the claim.

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Keywords: copyright, piracy on the Internet, website blocking, responsibility of the Internet provider, human rights

Last year’s ruling of the Constitutional Court of the Russian Federation on the complaint of A.N. Dubovets (No. 16-P dated June 22, 2017) develops its previous legal positions on the nature of bona fide possession and the balance of interests of a bona fide possessor and the owner. The author shows that a purely civil approach to understanding bona fide possession leads to unsatisfactory results, preventing resolution of the entire potential range of conflicts. Possessors are exposed to the claims of private individuals and government agencies. The constitutional understanding of bona fide possession should take into account not only the private interest of the owner, but also public interest. The latter may manifest itself in the need to protect a bona fide possessor with a view to fair resolution of a dispute and reduction in economic (transaction) costs. Another approach to understanding bona fide possession — the ontological approach — counts in favor of providing this protection. The article proves that from this perspective, possession should be assessed as an element of not only the actual, but also the legal reality. Therefore, it must be protected by legal means. The author believes that to this effect, it is not necessary to declare a bona fide possessor the owner.

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Keywords: possession, good faith, vindicatio, Constitutional Court RF, ownership, property law

Some Reflections Concerning the Draft Law on Amending the Law on JSC and the Law on LLC Regarding the Regulation of Derivative Actions As one of the key consequences of the recent reform of the national civil law, the representative theory of derivative suits has officially become a law: in accordance with the art. 65.2 of the Civil Code of the Russian Federation a shareholder acts as an agent on behalf of the company when filing a derivative suit (seeking damages or invalidity of certain acts and transactions of the company). Nevertheless, consistent application of the agency theory suggests — quite logically — that legal expenses incurred by such shareholder shall be reimbursed or otherwise compensated by the corporation — a principal. However, Russian courts and legal scholars mostly endorse a different approach, where such legal fees shall be paid by the shareholder who has no other claim for compensation except against the losing party under the Russian version of the «Loser pays» rule. The issue of the legal fees allocation in a derivative suit context has no clear and certain solution and largely depends on the policy of law. However, many national legal systems of well-developed countries — with regard to the representative nature of the derivative claim and in order to encourage minor shareholders to litigate for the benefit of the corporation and other fellow-shareholders — suggest some forms of compensation and reimbursement of expenditures incurred by the shareholder while defending the company in a derivative suit, especially a successful one. This paper gives a comparative overview of how court expenses (including attorney fees) incurred by a claimant in a derivative suit are treated and allocated in Russia and a number of foreign legal systems. The Authors offer some reflections on certain exceptional situations where Russian law may consider allowing compensation (at the expense of the corporation) of court fees incurred by the shareholder.

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Keywords: derivative suits, court expenses, reform of the Civil code, representative theory

This article considers the legal regulation of search engine operators under Russian law. The author analyses the normative definition of a search engine operator provided by legislation on information and compares it to rules on information intermediary liability under civil legislation. A significant factor affecting the legal status of search engine operators is the distinction between a general web search and specialized search engines. The author submits that it is necessary to analyse operations with information the operator of search engines performs. In general, in and of itself, provision of information on the location of certain material does not result in the finding of information intermediary legal status for the operator of search engine. Provision of access to material or information necessary for obtaining it requires access and use of information, whereas the operator of a search engine has absolutely no control over materials, the location of which it communicates. That said, specialized search engines often perform additional actions resulting in their categorization as information intermediaries of a certain type, which requires detailed analysis of the operations with information performed by the respective operator of the search engine.

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Keywords: search engines, information intermediaries, access to information, civil liability

The article explores Russian legal regulation of collision of pledgeholders’ rights to obtain an execution from a debtor of a pledged obligation in the event of its repledge. The author notes that respective regulation of such pledgeholders’ conflict should be based on a well-known Roman law principle prior tempore, potior iure, which implies that rights of senior pledgeholder have priority over junior pledgeholder’s rights. In the use of the mentioned Roman principle for resolution of pledge collisions, according to author, it is reasonable to take into account the specifics of various pledge relations. In particular, the regulation can be corrected according to the subject of the pledged obligation performance. In cases of repledge of pecuniary obligations or obligations to transfer movables it is proposed as a general rule to grant only a senior pledgeholder the right to obtain an execution from a debtor of a pledged obligation. In cases of repledge of obligations to transfer immovables or rights, according to author, it is not required to grant similar exclusive rights to a senior pledgeholder. In such situations, for pledgeholders’ rights protection it is sufficient that the subject of performance is burdened by pledges of the same ranks as were established on a pledged right of claim.

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Keywords: pledge, pledge of receivables, repledge, expansion of the right of pledge, ways of execution of the right of pledge

As a result of the reform of the law of obligations in 2016, the French Civil Code was amended, inter alia, by the provisions on obligations arising out of ‘unjustified enrichment’ (enrichissement injustifié). This article gives an overview of these amendments and explains their connection with the previous case law. One of the new rules that has first appeared in court practice is the double limitation on the amount to be paid by the defendant: it could not exceed the lesser of the two amounts — the actual enrichment of the defendant and the loss of the claimant. The new law also confirms the subsidiary character of the unjustified enrichment that was introduced by courts: the claimant could bring this type of action only if no other action is available to her. The rules that determine how the amount of the compensation could change have been clarified. The court may reduce the amount when the transfer of wealth that led to the enrichment was due to the claimant’s own fault. The case law has been uncertain on this point. Bad faith and good faith defendants are now treated differently by the law: a stricter approach applies to the former. They should return the full amount of the enrichment irrespective of whether they still have it in their hands.

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Keywords: unjustified enrichment, unjust enrichment, de in rem verso claim, the reform of the law of obligations in France

This article is the third in a series of articles that consider the outcome of the last stage of the Russian Civil Code reform in terms of its perception in legal practice. It analyses the reaction of Russian courts to the reform of a remedy against unfair contract terms (art. 428 of the Civil Code of the Russian Federation). The article demonstrates that the first stage of the civil law reform as regards protection against unfair contract terms took effect only in the area of B2B contracts. The amended art. 428 of the Civil Code of the Russian Federation has created a new instrument, sufficiently popular with arbitration courts, to protect against unfair contract terms in business relations. Meanwhile, general jurisdiction courts that consider disputes involving citizens ignored amendments to art. 428 of the Civil Code of the Russian Federation, although it is in these relations (B2C) that unfair contract terms are most common. The total number of references to art. 428 of the Civil Code of the Russian Federation has not changed compared to the pre-reform period, and the prevalence of refusals to apply it has even increased. This is due to the fact that in this field courts apply a simpler and more customary instrument, that is art. 16 of the Consumer Protection Law. It allows the courts to avoid contract terms that limit statutory rights of consumers. Consumer protection agencies tried to use the amended art. 428 of the Civil Code of the Russian Federation to block the application of standard contract terms for the future. However, this attempt failed. The author believes that these are two major mistakes made by the amendment makers. Firstly, art. 428 of the Civil Code of the Russian Federation and art. 16 of the Consumer Protection Law should be harmonized, and secondly, preventive defensibility against unfair contract terms should be introduced into Russian legislation.

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Keywords: unfair contract terms, case law, civil law reform

This review considers the difficulties in the application of a new legal provision that established the written acknowledgment of a debt as a ground for the renewal of the period of limitation (art. 206 par. 2 of the Civil Code of the Russian Federation). Difficulties are caused by controversial temporal construction of the operation of the statute by which the new legal provision was introduced. The author analyses the courts’ conclusions that concern the new legal provision’s application in the light of periods of the contractual relations’ occurrence and the date when the debt was acknowledged. The case law indicates that the most controversial issue is when the contractual relations had occurred prior to the date when the new legal provision became effective, and the written acknowledgment of the debt happened after this date. The author reaches the conclusion that courts tend not to apply the new legal provision when faced with the issue described above. Meanwhile, there exists the opposite doctrinal point of view.

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Keywords: acknowledgement of a debt, period of limitation