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ARCHIVE FOR 2020    RUSSIAN

Январь 2020

CONTENT

 

 

Aleksei Basharin On the Possibility of a Construction License Being Denied on the Basis of Provisions of the Master Plan, Some Reflections about the Legal Validity of Master Plans
Case Comment on the Judgment of the Chamber for Administrative Disputes of the RF SC No. 18-КГ18-67, 24 May 2018 This article examines the Ruling of the Supreme Court of the Russian Federation No. 18-КГ18-67 of 24 May 2018 in which the court allows for a construction license being denied on the basis of the impossibility of implementing construction on a given plot of land in accordance with the master plan. This article investigates the existence of the principle of compliance between the master plan and provisions of rules pertaining to land use and construction. The author attempts to answer the question of whether the master plan is a normative legal act and also analyses the possibility of its qualifying as a directly applicable document capable of limiting the rights of subjects of architectural activity.
Keywords: master plan, construction license, consistency doctrine, zoning, legal definiteness
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Kirill Nam The Principle of Good Faith as Rule
The principle of good faith is a complex legal category. That said, in practice and theory, it is treated and understood from different perspectives. In civil law, this principle is established formally and recognised in various legal norms, which each have different content and regulatory impact on legal relations. This article considers the principle of good faith as normative. Existing approaches to this range of problems are analysed. An approach is substantiated, according to which the principle of good faith as normative represents a norm with two-tiered content.
Keywords: principle of good faith, norm, interpretation
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Svetlana Krasnova Overcompensation in Russian Civil Law: Forms and Limits
The notion of the penalty function of civil liability that exists in the civil law doctrine creates the necessity of studying the question of possibility and permissibility of overcompensation in civil law. Such measures of liability as a penalty (punitive damages), fine for violation of the voluntary nature of fulfilment of consumer demands, levying a monetary amount in case of failure to fulfil a judicial act (astreinte) are generally considered as civil punitive sanctions. The author critically assesses the opinions in legal referance literature and court practice on the private law nature of «consumer» fines and astreintes. The article determines the limits of the overcompensation in domestic civil law, contains proposals for improving laws on defence of consumer rights and penalty so that to preclude the possibility of unjust enrichment of the person suffered from loss.
Keywords: fine, penalty, astreinte, civil liability, tort
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Sergey Budylin For the Want of a Nail. The Causal Connection and Foreseeability of Losses in Russia and Abroad
The article discusses the concept of causal connection that has a major importance in tort and contract law. Many rules of law differentiate between «actual» and «legal» causality. This means that losses are collected not only when the actual cause-and-effect connection between events is obvious, but the cause is also of a legal nature (the terms, however, may vary) — i.e. certain legally established criteria are additionally disclosed. A more modern approach is not to implant them in the concept of causality, but to separately resolve the matter of release from liability or limitation of liability of the wrongdoer in accordance with such criteria. The seemingly philosophical problem of causal connection is, in fact, reduced to the problem of optimal — from a political legal perspective — distribution of losses between the wrongdoer and the injured party. Such demystification of the concept of causality may materially facilitate the analysis of complex legal issues of recovery of damages. In certain senses, this approach turns the process of resolving the tort liability issue on its head.
Keywords: cause-and-effect connection, USA, England, civil liability, tort, contract
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Ivan Makhalin The Doctrine of Fiduciary Duties: Protector of the Trust under the Guise of an English Spy
In common law jurisdictions, a fiduciary (trustee, agent, consultant, etc.) that at its own discretion enters into transactions or provides professional consultations in the interest of a principal bears fiduciary duties before such principal. These include duties of care, loyalty (requiring the fiduciary to obtain approval for actions which entail a conflict of interests) and a duty to inform. A principal in many cases may require a fiduciary to prove the discharge of such duties and if the fiduciary is unable to do such — request a compensation of losses of the principal’s assets that the fiduciary is unable to justify. The rules on fiduciary duties are designed to protect the principal which is the weaker party in the fiduciary relationship. The doctrine of fiduciary relations is a product of common law and its system. The doctrine is applied differently in various jurisdictions and has undergone changes in recent years. However, the approaches of common law to the content of fiduciary duties, placing the burden of proof on the fiduciary, mandatory and default «fiduciary» rules either have parallels in continental jurisdictions or are successfully adopted there. The common law approach to these matters is already effectively being applied in Russian corporate law. The article concludes that the Russian law of obligations and, in particular, the rules on financial market transactions are in need of a functional equivalent of common law fiduciary duties.
Keywords: fiduciary duties, fiduciary liability, duty of loyalty, duty of care, duty to account, asset management, professional consultations
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Vadim Petrishchev Regional Administrative Offences: Trends of Judicial Practice
This article is devoted to a largely overlooked issue — the practice of applying norms of regional Administrative Codes. The article demonstrates that the practice of prosecution is expressly negative for companies. The courts do not treat acts as insignificant, reduce the amount of liability or replace the punishment with a more lenient one. Moreover, there exists a problem of a matching or partially matching objective aspect of components of administrative crimes in the federal and regional laws. Courts agree that the regional rules should have priority over the federal ones and apply them when there is an overlapping. In the result, the fines on businesses are higher. The article justifies that such an approach is erroneous and requires correction by means of elaboration of the Federal Administrative Code.
Keywords: administrative liability, Administrative Code
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