Журнал ЗАКОН

Comments by by T. Khabrieva, O. Rumyantsev, M. Krasnov, Yu. Yumashev, A. Medushevsky, S. Belov, Yu. Tay, S. Manzhosov

The article deals with the prospects for the development of Russian tort law in the harmonisation context of European continental jurisdictions. It is confirmed the need to modernise the system of special torts in the new context of economic and social development, the digital economy and the law. The division of Russian tort law into private and public law does not imply a rejection of the principle of a general tort. It will establish new grounds for liability for harm, conditions for the application of compensation in excess of the harm suffered and to extend the conditions for reducing the amount of compensation to encourage voluntary forms of liability. If voluntary reparations are refused the increased compensation will encourage the recourse to legal protection.

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Keywords: tort law, civil law defense, special torts, private and public tort law, compensation for damage, overcompensation

The present paper addresses the legal issues of tort liability in the era of autonomous vehicles. The main provisions of the Russian Civil Code are analysed in order to assess the need for any amendments that may be necessary for regulating harm arising from autonomous vehicles. Unlike Art. 1064, Art. 1079 may be difficult to apply with respect to autonomous vehicles. Article 1095 will likely gain in significance, with the rise in the importance of product liability.

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Keywords: autonomous vehicles, tort liability, fault, strict liability, possessor of source of heightened danger, defect in product

This article presents the problem of proof of causation in establishing liability for damage caused by defective products. This problem affects the balance of protection with respect to consumers’, producers’ and sellers’ interests. A solution is suggested, which is based on the analysis of proof of causation techniques as applied by Russian, English and German courts.

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Keywords: causation, tort liability, product liability, consumer protection

After the tragic incidents, which occurred in the Limping Horse Club and the Winter Cherry Mall, ensuring fire safety in places of mass gathering has been one of the priorities of prosecutorial supervision. Unlike the previous claims intended to prove the illegality of defendant’s acts (omission) and eliminate fire safety breaches, the prosecutor now prefers to ask for prohibition of defendant’s activity in accordance with Art. 1065(1) of the Civil Code. This article analyses the legal nature of damage prevention claims and clarifies the range of potential plaintiffs and defendants in disputes relating to the operation of non-compliant buildings. Special attention is paid to the conditions of satisfaction of the claim in question, facts in proof and possible evidence. Based on the analysis of judicial practice, it is concluded that many aspects of this action are interpreted by judges in different ways, including a criterion of real threat (danger) that leads to opposite decisions in similar circumstances. The author also discusses a possibility of competition between the sanction prohibiting activities (Art. 1065(1) of the Civil Code) and the punishment imposing administrative suspension for up to 90 days (Art. 3.12 of the Code of Administrative Offences). In cases of non-compliance with fire protection requirements, the author believes that the prohibition of building operation should be preceded by administrative response measures, including administrative suspension of activities for a period sufficient to eliminate safety breaches.

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Keywords: fire safety, tort of impending harm, damage prevention, prohibition and suspension of activity, claim to protect rights of general public, prosecutor

This article focuses on research into normal business risk, a notion which is used in resolving disputes involving tort liability of the CEO of a company and recovery of losses suffered by the company. Based on the legislative provisions, the analysis of judicial practice and the study of doctrinal positions, the authors define the concept of normal business risk, identify some problematic aspects of its implementation, assert its inappropriate use in assessing the behavior of the company’s CEO for compliance with good faith and reasonableness requirements as well as explain why this concept needs to be replaced.

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Keywords: normal business risk, tort liability of CEO, reasonable business risk, management decision

This article addresses some issues arising in the application of the RF Constitutional Court Ruling No. 39-P of 8 December 2017 by the local courts of general jurisdiction. The author criticises the judicial approach which sees bankruptcy proceedings against taxpayers and other cases of temporary corporate insolvency as grounds for imposing civil liability on a person whose actions led to underpaid corporation tax.

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Keywords: Akhmadeeva Case, subsidiary liability, conversion of tax arrears, principle of inadmissibility of double recovery, principle of single economic entity

Futurology — Amendments to the Constitution of the Russian Federation — COVID-19 pandemia and restrictive measures — Russia’s Constitutional Court conclusion — Nationwide voting — Letter and spirit of the Constitution — Public order and Yukos case — Jury trials — Oleg Tinkoff case — Deputy Chief Justice of the Supreme Court of the Russian Federation and limiting court activity — Pandemia as a force majeure — National Welfare Fund and sale of Sberbank — Decline of globalisation and consumption age

This paper investigates problems in interaction between the Russian Constitution and federal laws, on the one hand, and between generally recognised principles and norms of international law and international treaties of the Russian Federation, on the other. The problems are prompted by the view that incorporating both generally recognised principles and norms of international law and those of international treaties of the Russian Federation into its legal system and recognising their priority over domestic laws violates Russia’s sovereignty. The author concludes that Art. 15(4) of the Russian Constitution is correct and presents no threat to the national sovereignty: on the contrary, it helps the State, which has proclaimed the rule of law, to exercise its functions.

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Keywords: Russian Constitution, federal laws, international law, state sovereignty

The author criticises the idea of a revolutionary reform of Russian property law as he believes that this institution should rather follow an evolutionary path. The paper points out the need for using the existing case law and the danger of following classical patterns in a changing context.

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Keywords: limited property rights, property law reform

Limited liability company is currently the most common legal type of organisation in Russia. The legal status of such companies is regulated by the Civil Code and the special law on limited liability companies, which as adopted in 1998. Despite the long duration of this law and its repeated changes, some important issues remain insufficiently regulated. In particular, they include a large block of issues relating to the reorganisation of a limited liability company. One of the issues is changing shares in the limited liability company as a result of its reorganisation. Relying on the available judicial practice, the author considers this issue in detail in relation to reorganisation through consolidation and suggest measures to improve the current regulation.

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Keywords: reorganisation, legal entity, limited liability company, share, protection of rights, consolidation, merger

The author believes that Art. 438(3) of the Civil Code of the Russian Federation is about accepting an offer not through the declaration of will, which should reach the offeror, but through volitional activity as the detection of the will, which does not need to be received; and that in this case the contract is deemed to be concluded at the moment when the offer recipient begins execution. The article criticises the positions formulated by the Russian Federation Supreme Court Plenum regarding Art. 438(3) of the Civil Code of the Russian Federation, and suggests improvements to this part of the legislation.

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Keywords: acceptance of offer, detection of will, volitional activity, actions to execute commitment, conclusion of a contract

The land plot legal regime implies a wider scope of public regulation, which leads to a collision of private and public interests where public restrictions are to be imposed on private lands. One way to balance these interests is to compensate land owners for the inflicted damage. The article deals with various approaches to the legal nature of this compensation. It relies on the experience of foreign jurisdictions, on national legislation, doctrine and law enforcement practice to suggest a compromise solution for the regulation of such relations.

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Keywords: restrictions of land rights, compensation, damage, civil liability of public authorities, protective zone, permitted use, designated purpose

This paper is devoted to the analysis of the five the most pertinent ways to develop Ukrainian tort law. It provides a fresh perspective on the tort law system, leaving behind the notion of “elements of civil wrongdoing” as a ground for liability and compensation for harm. The author also suggests taking into consideration the European best practice of causation analysis and paying more attention to new torts associated with emerging information technologies. The convergence of the private doctrine of tort law and the public doctrine of human rights is another valid way of modernisation.

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Keywords: Ukrainian law, tort law system, tort liability, protection of human rights