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Ноябрь 2019





Alexander Latyev «The Apiary Case» as a Mirror of the Poverty of Russian Property Law
Case Comment on the Judgment of the Chamber for Civil Disputes of the RF SC No. 37-КГ19-4, 28 May 2019 The imperfection of the existing regulation of neighborhood relations and its excessive rigidity and imperativeness is shown by the example of a case considered by the Supreme Court Civil Division. The author analyzes the possible options for resolving and even preventing such disputes, as well as problems and prospects that arise in connection therewith.
Keywords: law of neighbouring tenements, property law, easement
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Anna Karachun Allergy, Bees and Neighborhood Rights: Finding a Balance of Interests
Case Comment on the Judgment of the Chamber for Civil Disputes of the RF SC No. 37-КГ19-4, 28 May 2019 The article analyzes in detail the conclusions of the Supreme Court of the Russian Federation formulated while considering the commented case. The author concludes that despite the lack of legislative regulation of neighborhood relations, the Court correctly resolved the dispute, although the argument itself may seem confusing and inconsistent. It is argued that there is no urgent need to reform property law governing neighborhood relations. Deficiency of the current regulation may be overcome by the Supreme Court with a consistent interpretation of the provisions of the Civil Code.
Keywords: property law, neighbor law, actio negatoria, limitations of property rights, judge-made law
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Ekaterina Avtonova, Polina Astapenko, Daniil Boreysho, Maxim Do, Alexander Malshakov and others Comment on Resolution of the Plenum of the Supreme Court of the Russian Federation No. 49 dated Dec. 25, 2018 On Some Issues of the Application of the General Provisions of the Civil Code of the Russian Federation on Contract Execution and Interpretation
The final part of the commentary is devoted to the analysis of Clauses 34–49 of the Resolution, namely, the provisions on representations of circumstances, conclusion of contracts in court and rules of contract interpretation. The authors discuss matters related to the distinction between the representations of circumstances and «responsibility» for the quality of goods. The new institution of third-party representations and the grounds and limits of the liability of the person making representations are analysed. The possible bases for the competence of a court to consider a dispute on the conclusion of a contract in court are investigated and restrictions on the powers of a court to change the conditions agreed upon by the parties are defined. The legal nature of the thirty-day period for appeal to the court established by Article 445 of the Civil Code of the Russian Federation is discussed. The hierarchy of ways to interpret the conditions of a contract and the possibility of using other methods not mentioned by the Supreme Court are considered. The authors investigate the provisions on mixed and non-defined contracts.
Keywords: representations of circumstances, warranties, conclusion of a contract in court, interpretation of a contract, mixed contract, non-defined contract
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Roman Bevzenko Commentaries on Article 8.1 of the Civil Code of the Russian Federation (part 1)
Article 8.1 of the Russian Civil Code lays down general rules on state registration. The article argues that these rules apply not only to real property but also to other types of assets including intellectual (exclusive) rights. The article explains the principles of the registration system: booking principle (i.e. title by registration), legality principle, publicity principle, reliability (indefeasibility) principle and specialty principle. The discussion takes into account latest court practice. Significant part of the article discusses exceptions from the booking principle — situations when contrary to the general rule registration of a right is not necessary for its occurrence. There are 17 exceptions mentioned in the article but the list is not complete as there might well be some others. It is also noted that it is not clear whether the booking principle applies to the rights that arise from contracts, for example rights of a fiduciary manager (trustee) or licensee of an intellectual property object. Other issues relating to Аrticle 8.1 of the Russian Civil Code are commented in the second part of the article which is to be published in the next issue of the journal.
Keywords: Аrticle 8.1 of the Russian Civil Code, register of rights to assets, the moment of the creation of rights subject to registration, reliability (indefeasibility) principle
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Svyatoslav Ivanov License Registration, Nonsensical and Ruthless
The article substantiates the absurdity and erroneousness of recognising the rights to use registrable intellectual property (license rights, licenses) solely on the basis of their state registration, which emerged during the reform of Part Four of the Russian Federation Civil Code, a stage of the wider reform of the system of registration of rights and transactions. Analogies to lease regulation are provided. Based on differences between the types of registration, the conclusion is drawn that license registration is the registration of a relative right with an opposability effect, which, just like in other cases of the registration of such rights, should be exercised by means of registering the transaction out of which such right arises. The negative practical consequences of the effective regulation system and the high risks borne by transaction parties are demonstrated; according to the author, this situation requires the prompt interference of the legislator.
Keywords: registration, intellectual property, relative rights, license contract, the booking principle, opposability, lease
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Pavel Praviaschii Pledge of Money
The pledge of rights under a bank account agreement is, in essence, a pledge of money. Today, only money on a special pledge account may be pledged, but this restriction is ineffective and should be abolished in the future. The law provides for two modes of pledge of money: pledge of a fixed amount and pledge of an account balance. The modes differ in the set of rights and obligations of the parties and, in particular, the degree of freedom of the pledger to dispose of funds. However, the law does not prohibit the parties from developing other regulation differing from these modes. The pledge of money does not have the attribute of publicity and may lead to infringement of the interests of third parties. In this regard, it is advisable to apply the rules on registration in the register of notices of pledge of movable property to the pledge of money. The author also discusses the application of rules on the pledge of money in enforcement proceedings and in the bankruptcy of the pledgor.
Keywords: pledge of money, pledge account, non-public security, pledge in bankruptcy, contestation of pledge
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