Журнал ЗАКОН

Comments by L. Golovko, S. Pashin, V. Klyuvgant, A. Piyuk, N. Shatikhina, K. Sklovsky, N. Kolokolov, V. Burkovskaya, R. Kurmaev, M. Mikheenkova, Yu. Tay

The article is focused on the complex analysis of the matters relating to the issues of resolution of corporate disputes in the criminal legal proceedings. The author pays attention to the peculiarities of burden of proof in the criminal proceedings which make it attractive to resolve corporate conflicts in criminal proceedings; analyses peculiarities of resolving civil actions on payment of damages caused by a crime; touches upon issues of res judicata. The author wonders about principles, rules, terms and concepts which shall apply in resolution of the civil actions in criminal proceedings and makes a strong case that the terms and concepts shall apply as they are set out under civil law, including but not limited to, in criminal proceedings when resolving civil actions. It is the author’s position that an action which is permitted cannot be publicly prosecuted. If a transaction is a lawful act in law, then making such transaction cannot be a ground for a formal accusation.

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Keywords: corporate dispute, corporate conflict, civil action in criminal proceedings, res judicata, liability of members of the management bodies, limitation of liability of the participants (shareholders) of a corporation, piercing the corporate veil

This article provides analysis of one of the most recent trends in Russian commercial courts practice regarding voidable decisions (resolutions) of corporate meetings (general meetings of shareholders, board meetings / executive bodies meetings), while courts tend to declare as illegal those corporate decisions which have been adopted by majority solely to negatively affect minority shareholders. The author — borrowing the term from constitutional scholarship — suggests to call this tendency as countermajoritarian approach in corporate law practice. In this paper the analysis of court practice is limited mostly to a case law of higher courts (cassation arbitrazh courts and the Supreme Court of the Russian Federation) on voidable corporate resolutions, passed by shareholders and directors of limited liability companies and joint-stock companies. In the first part of the article the problem of violation of the principle of equality in voting at corporate meetings is analysed.

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Keywords: general shareholders meeting(s), voidable decision(s) / resolution(s) of shareholders, countermajoritarian approach in corporate law, equal treatment in corporate law, majority in corporate voting

This article highlights the phenomenon of an indirect claim as a special means of protecting corporate rights, which is of an exclusive nature. The author briefly describes the history of the emergence and development of this institution in Russia, the criteria for restrictions on its presentation, as well as the issue of compensation for judicial expenses.

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Keywords: indirect claim, protection of corporate rights, limitation of action, legal expenses

Determining what is the interest of a limited liability company in interested transactions is an important element of the legal regulation of such transactions, since violation of the Corporation's interest is a mandatory precondition of invalidation a transaction. At the same time, interpretation of situations when a transaction with an interest violates the interest of a legal entity — so important for businesses — can be extracted from several legal positions of the Russian Supreme Court, dispersed in different judicial acts. In this article the author will try to analyse the views of the Supreme Court on the category of interest of a limited liability company, protected under related party transactions; to determine what has already been defined in judicial practice as parts of its interest, what is the interrelation between these parts — in order to eventually get at least a rough understanding about the situations when you can say that an interest has been violated by the interested transaction.

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Keywords: interest of a limited liability company, challenging interested transactions, protection of corporate rights

The paper provides analysis of the problem of dogmatic qualification of the period for exercise of the right of pre-emption in respect of participatory interest (shares) as well as approaches towards its calculation existing in court practice. Due to the transformation nature of the right of pre-emption, the author argues for a revision of the current approaches relating to determination of the starting moment of the period for exercise of the indicated right.

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Keywords: right of pre-emption, right of first refusal, transformation right, time period, corporate law

Article explores two elements of takeover regulation: squeeze-out and mandatory buy-out. Analysing the economics of consolidation of corporate control after successful acquisition author comes to conclusion that traditional view that squeeze-out is aimed at protection of purchaser interest and buy-out protects minority shareholders is wrong. Instead author proposes to view squeeze-out and buy-out as one inseparable instrument aimed at protection of minority shareholders: incentives for squeeze-out provide for the better conditions in tender offer and buy-out protect minority from private benefit of control extraction after acquisition. Such protection of minority interest is vital to the purpose of takeover regulation as a whole — to achieve Pareto-efficient transactions on market for corporate control. Taking this analysis into account, the author believes that the courts should invalidate transactions completed during controlled squeeze-out as purporting to circumvent the law.

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Keywords: corporate law, corporate control, acquisition, squeeze-out, buy-out

This article provides a commentary on some provisions of the Draft of the Federal Law written by Ministry of Economic Development of the Russian Federation, devoted to conceptual issues of the institution of shares with different rights. The author examines reasons why joint stock companies issue several types of ordinary shares with different rights (Section 2), what negative consequences of this could appear (Section 3) and how to avoid or minimise them (Section 5). As a main part of this paper, the author comments on the Draft of the Federal Law, which is planned to be submitted to the State Duma of the Russian Federation (Section 4).

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Keywords: ordinary shares, types of shares, classes of shares, dual class capitalization, international company, shares with different rights

This year, with everyone switching to remote work and schools and universities conducting classes online, video conferences became an indispensable and even mundane part of our life. The changes connected with limiting the spread of the virus affected the judicial system as well. Back in April, the Presidium of the Supreme Court approved the COVID-dedicated overview of case law in which, invoking the practice of the European Court of Human Rights, it concluded that the use of video conferencing tools in judicial proceedings does not contradict the concept of fair public case hearings. The court noted that in cases requiring a prompt review courts may “decide to conduct the entire judicial process using video conferencing tools”. The Supreme Court’s position allowed courts to function effectively even during the total lockdown and general travel restrictions. Yet, although the organisational measures were taken promptly and efficiently, many questions have been left without answer. These questions are becoming relevant again with the growing number of the disease cases, anticipations of the “second wave” and mass restrictions. Moreover, once this method has been tested in the conditions of a quarantine, the question arises whether this way of conducting court hearings is acceptable and practical. To what extent and how can one justify the conduct a video conference hearing? Is it the right of a party or the court? What is the point of personal presence in court hearings from the perspective of the rights of parties to proceedings? Has this approach become obsolete in the digital era? How should an online court hearing be organised to ensure the maximum compliance with the standards and principles of court proceedings? These are just some of many issues that the authors examine in this article.

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Keywords: court hearings by video conference, right to judicial protection, right to be heard, Russian Supreme Court, European Court of Human Rights

Guarantees for ex-President — Moscow QR codes — Coronavirus and contract enforcement — Civil action in criminal cases — ‘All-inclusive’ protection of the only dwelling house in bankruptcy

The article deals with certain issues of digitalisation of civil rights objects, including the results of intellectual activity. It is argued that the digitalisation (tokenisation) of civil rights objects can lead to the establishment of a legal link between a digital asset and the object of rights expressed in it. At the same time, the degree of strength of the legal connection may vary and in some cases lead to the loss of the legal status of the object of civil rights expressed in a digital asset.

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Keywords: digital assets, objects of civil rights, results of intellectual activity, tokenisation, blockchain

The article analyses new model of cassation appeal in criminal proceedings, which was modelled upon the example of commercial proceedings in the course of 2010–2019 reforms. The author analyses objective differences in understanding of the “two instances” rule, in approaches to res judicata principle and to possibility to revert consequences of enforcing erroneous judicial decisions. This leads her to conclusion that model of numerous revisions of an enforceable judicial decision applied in civil proceedings is unsuitable for criminal proceedings. The number of possible revisions of a judgment after giving it the force of res judicata seems excessive and not complying with the requirement of effective justice as understood by the Constitutional Court of the Russian Federation and by the European Court of Human Rights. The author suggests to return to the classical concept of differentiating powers between courts of appeal and cassation courts while maintaining both instances for reviewing those decisions that not yet came into force.

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Keywords: comprehensive cassation, civil proceedings, unity of the process, res judicata, enforceable decisions, term for cassation appeal

The author is attempting to investigate from the perspective of public construction law the possibility of moving objects of capital construction. The author draws attention to the fact that current legislation does not require any special permits to move capital construction objects. The article also demonstrates a legal uncertainty as regards the possibility of connecting the object being moved to engineering networks and regarding the state registration of rights in respect of such object. All this requires a comprehensive improvement of existing legislation.

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Keywords: moving, relocation, real estate propertyб object of capital construction, public construction law, land use law, utility networks