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Март 2020




Andrey Gromov Restitution of Profits and Other Benefits Received by the Lessor and Lessee who Lack Title to the Property
Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 309-ЭС19-13850, 26 November 2019 There are two possible normative grounds for the restitution of profits from an unlawful possessor of the thing to its owner. First is the special rules on distribution of profits in case of vindicatio (article 303 of the Russian Civil Code). The second is the rules on unjustified enrichment. These two regimes do not fully coincide. On the one hand, they are quite similar in the regulation of disgorgement of profits. On the other hand, article 303 seems to provide more suitable regime for the compensation of money saved by the unlawful possessor. The recent judgment of the Supreme Court, which is commented in this article, confirms the priority of article 303 of the Russian Civil Code in the situation when the property is leased out by the unlawful possessor. It also highlights some special rules that apply to the claim by the owner to the unlawful possessor.
Keywords: vindicatio, unjustified enrichment, unlawful possession, competition of claims, lease
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Sergey Budylin The Case of Oppressed Chicken Catcher, or Director’s Liability before Company’s Contractors
Comment to the High Court of England and Wales Judgment Antuzis & Ors v. DJ Houghton Catching Services Ltd & Ors [2019] EWHC 843 (QB) (8 April 2019) This case, decided by the High Court of Justice, concerned a British company that had mercilessly exploited migrant workers. Workers’ suit was formulated as a claim under an employment contract. Without a shadow of a doubt, the court found the company liable to the workers for gross violations of labour law. A very interesting question from the theoretical point of view: should the managers of the company be liable under the workers’ contractual claim? The court concluded that violation of the contract as such is not sufficient for that, as managers are not parties to the contract. In order to recognize the personal responsibility of managers to the employees, some additional degree of reproach is required in their actions. In the court’s opinion, this additional degree is added by the fact that the managers violated their fiduciary duties to the company. The court considered that the managers’ wrongful acts had harmed not only the employees, but also the company itself. In the end, the dispute was resolved in favour of the oppressed employees.
Keywords: directors’ liability, fiduciary duties, procurement of a breach of contract
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Tatyana Krasnova Establishment of an Easement at the Request of a Lessee of the Land Plot. Following One Judgment of the Supreme Court of the Russian Federation
The article considers one judgement of the Supreme Court of the Russian Federation which concerned the creation of an easement. This judgment raises five issues in this area of law: 1) who is entitled to demand establishment of an easement; 2) easement’s ability to bind third parties; 3) establishment of an easement in relation to one’s own land; 4) selection of the burdened land when there are options; 5) whether it is important that the benefited land is (not) used in accordance with its officially designated purpose.
Keywords: easement, lease, absolute right, obligation in rem
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Artem Vasilev, Dmitrii Murzin Subjective Good Faith in Civil Law: Functions, Degrees, Presumptions
The article deals with the application of the category ‘subjective good faith’ in modern Russian law. The authors understand subjective good faith as the lack of knowledge of any circumstances, provided that the law associates certain legal consequences with such ignorance. The authors distinguish subjective good faith from objective good faith, the latter being the main principle of whole civil legislation (article 1 of the Russian Civil Code). There are three different functions of subjective good faith which depend on the area of its application. Degrees of subjective bad faith (‘could know’ and ‘should have known’) are considered. The article sets out the conditions under which the application of the presumption of subjective bad faith is permissible in civil law.
Keywords: good faith, subjective good faith, presumption
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Sergey Budylin Pain and Suffering in Common Law Сountries. Price List or Judicial Discretion?
Compensation for moral injury in Russian law is similar to the compensation of non-economic damages (also known as compensation for pain and suffering) in common law countries. In principle, their amount is determined at reasonable discretion of the jury or judge in light of previous jurisprudence. In England, systematic tables of recommended compensation for various types of injury are now published periodically to assist the courts, based on previous practice but partly systematizing and complementing that practice. And the Court of Appeal from time to time gives direction to the courts to adjust the level of recommended compensation.
Keywords: moral harm, non-pecuniary damages, pain and suffering, England, U.S.
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Natalia Artemenko Methods for Calculating Compensation for Non-Economic Damages in Italy
This article examines the category of non-economic damage in Italian civil law, as well as its types and aspects, and methods for its compensation developed by doctrine and judicial practice. The calculation method of compensation for non-economic damage with use of the tables developed by the courts is subject to a special analysis, with particular focus on the table developed by the Court of Milan. Some examples of court decisions for 2019 are given, with specification of amounts of compensation for non-economic damage and its calculation methods based on the tables.
Keywords: non-economic damages, attacks on human life and health, Italy
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Alexandra Lobacheva Calculation of the Amount of Compensation for Non-Economic Damages Caused by Attacks on Human Life and Health in France
The article describes the French classification of types of non-economic damages and methodological recommendations prepared in 2016 on the basis of the practice of the French courts of appeal. These documents are used by the courts as a guide when considering cases of compensation for non-economic damages caused by attacks on human life and health. The article provides methods for calculating the amount of compensation which depends on the nature of the damage and the personal characteristics of the victim, and considers relevant court cases.
Keywords: non-economic damages, attacks on human life and health, nomenclature Dintilhac, France
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Anastasiia Pastukhova German Law Approach to Determining the Amount of Compensation for Non-Economic Damages
The aim of the article is to provide a general overview of the concept of determining the amount of compensation for non-economic damages under German law. The legislator left the determination of fair compensation to the discretion of courts that shall make decisions taking into account all the circumstances of a case. Over the century of existence of this rule, extensive court practice has accumulated and has been summarised privately to be taken into account by courts in order to ensure equal retribution for similar violations.
Keywords: non-economic damages, attacks on human life and health, Germany
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Polina Astapenko Pledge for All Debts
The author analyses the norm in paragraph 1 point 2 article 339 of the Russian Civil Code, which allows to specify in a pledge contract that the pledge will secure all existing and (or) future obligations of the debtor to the creditor (hereinafter also — the contract of pledge for all debts). The paper attempts to find answers to the questions (a) on the substance of this new collateral and its accessory character; (b) on the term of the agreement; (c) on the duty to set a limit amount in the agreement; (d) on competition between the ‘standard’ pledgee and the contract of pledge for all debts; (e) on the consequences of sale of property pledged under the agreement for all debts. As a result, the author has come to the following conclusions. First, an agreement based on paragraph 1 point 2 article 339 of the Russian Civil Code does not create one umbrella collateral which lacks accessory character, as some scholars argue. On the basis on this agreement, a new separate pledge would arise to secure each new debt. And this pledge will be regulated by general rules of the Civil Code. Secondly, the agreement of pledge for an uncertain period may be terminated after expiration of reasonable time which should be calculated from the moment of conclusion of the agreement, if after its conclusion the debt has not arisen; if during some period the main obligation existed, then the term should be calculated from the moment of termination of the last pledge. Thirdly, it is not necessary to specify the maximum amount of security in the contract of pledge for all debts; its absence means that the mortgagor agrees to provide the full value of the property to meet any claims of the creditor. Fourthly, the registration of not yet existing pledge is possible; and the pledge arising from the pledge agreement for all debts can also be registered before any debt appears: thus, the pledgee is able to reserve the rank of the senior pledgee against all future pledges, and for himself — the status of the previous mortgagee. Fifthly, a pledge agreement for all debts remains in force after the sale of the pledged property; if a debt arises after the sale of the property, a pledge will follow.
Keywords: security of obligations, pledge, pledge for all debts, accessory character, priority of property rights
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Pavel Shefas On Enforcement of an Arbitral Award against Insolvent Defendant and the Principle of Equality of Creditors
In accordance with article 63 of the Law on Bankruptcy and the position of the Supreme Arbitrazh Court (SAC) of the Russian Federation in paragraph 28 of the Resolution of the Plenum of the SAC of 22 June 2012 № 35, a court cannot issue writs of execution in relation to obligations that are included in the register of claims of a debtor under the monitoring procedure in bankruptcy. However, as follows from section 10 of the Survey of Court Practice № 1 (2016) issued by the Supreme Court of Russia, arbitrazh courts could circumvent this prohibition by way of enforcing an arbitral award (Chapter 30 of the Arbitrazh Procedure Code of the Russian Federation). This allows creditors to seek legalisation of the arbitration court decision outside the bankruptcy case, which leads to preferential satisfaction of their claims. This practice exists because one thinks that the procedure of issuing a writ of execution is a type of general civil procedure. The correct approach is to leave such applications of creditors without consideration on the basis of article 148 of the Arbitrazh Procedure Code of the Russian Federation, regardless of the time of their arrival in court (before or after the introduction of the monitoring procedure).
Keywords: enforcement of arbitral awards, public order, bankruptcy (insolvency), list of creditors
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Andrey Polyakov Vindication from a Good Faith Purchaser
In 1883, the Governing Senate resolved a case concerned property transferred by a mortgage deed to a third party. It was then discovered that the property belonged to a person other than the mortgagor who had no right to mortgage it. The plaintiff brought an action to invalidate the transfer agreement and to recognize the ownership right. The Senate considered what was legal and illegal possession.
Keywords: history of law, Russian Empire, property, vindicatio, good faith purchaser
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