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ARCHIVE FOR 2021    RUSSIAN

Январь 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Legal Summary of 2020
Comments by I. Alebastrova, N. Rasskazova, A. Savelyev, D. Tsygankov, I. Ostapets, S. Pashin, Yu. Tay, A. Rybalov, A. Bryzgalin
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IN MEMORIAM

 

 

Topic of the issue

 

L.V. Golovko The Scope of the Concept of a Legal Person: Through the Comparative Legal Method to General Theoretical Assumptions
The comparative legal method is very useful for updating our view of classical legal institutions, especially in the context of longstanding disputes about them. One of such institutions is the legal person. The old intracivil discussions about the nature of the legal entity, which are perhaps no longer as relevant today, have been replaced by another problem: should legal entities remain a purely civil law construct or should they now be viewed more broadly as a general legal phenomenon, particularly through the prism of the public-law concept of the legal entity? About a hundred years ago, a similar debate was taking place in the French legal doctrine. By methodologically drawing on them and at the same time specifying in a comparative-legal perspective some features of French and Russian legal terminology, we can try to separate from each other, on the one hand, universal and objectively determined legal constructions (techniques) and, on the other hand, the national language conventions that are forming around them. From this derives several general theoretical assumptions about the prospects of development of the concept of legal person in Russian law.
Keywords: comparative legal method, legal entity, legal personality, civil law, public law
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V.A. Bagaev Functional Method and Comparison of English and Russian Property Law
It is rare for Russian legal scholarship to compare Russian and English property law. An account of English property law is usually very brief. It seems to be so alien to Russian property law that does not deserve careful consideration. The article seeks to demonstrate that these two systems could be compared by using the functional method of comparative law and, moreover, such a comparison could yield useful results for Russian jurisprudence. Three examples are used in the article. First — adverse possession in English law and acquisitive prescription in Russian law. Second — protection of purchasers of a real property owned by multiple persons. Third — recovery of possession of immovable things.
Keywords: property law, protection of possession, acquisitive prescription, adverse possession, English law, comparative law
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A.A. Vishnevskiy Deconfessionalisation of the Sacral Meaning as a Method of Comparative Studies in the Religious Legal System
The author attempts to provide for a possible method of comparative studies in the religious legal system, defined hereof as decofessionalisation of the sacral meaning of a religious norm. The substance of the method is a shift from a confessional tradition of understanding of the norm to its deeper sacral meaning. This requires a shift from certain traditional paradigma, at the same time it’s promising as far as it opens a possibility to find those common grounds, which are requested by the modern world as a theoretical background for removal of dangerous modern rivalries.
Keywords: comparative canon law, ecumenism, ecumenical law, religious legal system, comparative methods
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Discussion Board

Iu.G. Chelnokov Approaches to Determining the Moment of Origin and the Range of Subjects of Ownership of a Residential Property Created or Acquired under a Contract Using Maternity Capital Funds: In Theory and Practice
The paper attempts to compare the two current approaches to determining the moment of acquisition and the subject composition of the ownership of residential premises created or acquired under a contract using maternity (family) capital. The first point of view based on the provisions of the current civil law in view of its everyday obviousness is given only a brief description and justification. The second based on the provisions of one of the reviews of judicial practice, which strangely interprets the norms of the public law on state support for families with children, and seems to seriously intend to resolve civil law relations with their help, due to its unusual nature and unexpected similarities with the Anglo-Saxon regulation of trust are examined in a little more detail: with a description of the internal contradictions and the problems presented by it in theory and practice that are present in it (under the continental approach to understanding property rights). The result of the work is the conclusion that the choice between the described regulatory models is inevitable. The author tends to support the first of the voiced positions as obviously based on existing civil law norms and causing a much smaller number of questions in theory and in practice.
Keywords: ownership of residential premises, moment of occurrence of ownership, subjective composition of property rights, maternal (maternity, family) capital, state registration of property rights
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A.P. Evseev Brave New World
Constitutional Court of Russia and anti-COVID regulations — Vaccination passports — Navalny’s case — Life after quarantine — Renovation and good treatment of property — Banning Trump and Ban à la russe — International investment arbitration case in the Constitutional Court of Russia — ECHR decision on partial admissibility of Ukraine’s interstate complaint against Russia
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Theory and practice

D.I. Stepanov Dangerous Countermajoritarian Approach in Declaring Corporate Resolutions as Null and Void (Part 3)
This article is a continuation of a series of publications analysing arbitrazh (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 acts 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. The conclusion from author’s findings is a warning sign for Russian courts: since countermajoritarian implies high level of judicial discretion, this practice is quite dangerous for transactional lawyers due unpredictability whether specific voting constitutes abuse of corporate powers by majority shareholder or not. Therefore countermajoritarian courts and legal academia must consider monetary remedies for minority shareholders as more adequate means for protection minority rights as opposed to declare illegal (void) corporate resolutions on countermajoritarian grounds.
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
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A.I. Schukin Improving Russian Legal Proceedings in Condition of Economic Sanctions: Exclusive Jurisdiction and Obtaining Exequatur (Part 1)
In accordance with Federal law No. 171-FZ of 08.06.2020, the Russian Arbitrazh Procedure Code has been amended to provide for the exclusive jurisdiction of Russian arbitrazh (commercial) courts in disputes involving Russian and foreign persons against whom restrictive measures (sanctions) have been imposed abroad. The determination of exclusive jurisdiction in this category of cases entails non-recognition in the Russian Federation of decisions of foreign courts and arbitration taken in violation of such competence, except in cases where the decision was made on the claim of the person against whom the sanctions are applied, or when the person did not object to the proceedings outside the territory of the Russian Federation. The article provides a legal analysis and assessment of the adopted changes in the Arbitrazh Procedure Code in the Russian Federation.
Keywords: economic sanctions, restrictive measures, access to justice, international arbitration, international jurisdiction, exequatur, forum necessitatis
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M.L. Galperin Are “Crimean” Arbitration Tribunals Competent?
The article discloses the key Russian legal arguments with regard to the competence of the international investment arbitration tribunals to consider claims of the Ukrainian citizens and entities, who have lost their assets in Crimea after its reunification with Russia in 2014. Author, directly involved into the representation of the defendant in such international proceedings analyses the international law sources regulating the territorial application of the international treaties and legal nature of the tribunal’s jurisdiction and particularly concludes that in the context where Ukraine does not officially recognise Crimea as part of Russia, any Ukrainian investments on the peninsula are not covered by the relevant BIT and arbitration tribunals have no jurisdiction to resolve such disputes.
Keywords: international arbitration, investment protection, interpretation of international treaties, jurisdiction
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D.L. Kuznetsov Transformation of the Institute for Labor Regulation of Remote Workers: Contemporary Legal Mechanisms
The article examines the features of the legal regulation of the labor processes of remote workers, provided for in the new edition of Chapter 49.1 “Features of the regulation of the labor of remote workers” of the Labor Code of the Russian Federation. One of the key novelties of the legislation was the possibility of alternating the periods of the employee’s work function between remote and stationary workplace. Also, for the first time, the Labor Code of the Russian Federation directly establishes special additional grounds for terminating an employment contract with a remote worker. Of particular interest is the new procedure for the temporary transfer of an employee to remote work at the initiative of the employer in exceptional cases.
Keywords: temporary transfer of an employee to remote work, performance of a labor function remotely, remote work, remote worker, labor of remote workers, distant work, electronic signature
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O.G. Lomidze, E.Yu. Lomidze Possession and Priorities in the Protection of Turnover Participants
The authors consider the legal consequences of possession as the actual relationship of the subject to the thing, the importance of possession for choosing a method of protection, and, ultimately, on the determination of priorities. It is shown that possession as an actual relationship between a person and a thing can be significant in itself, irrespective of title. It touches upon the criteria of ownership in terms of the idea of “register ownership”. The authors conclude that possession is a sufficiently universal benchmark for the prioritisation of protection of parties to a sale.
Keywords: possession, factual possession, title, protection method, priority
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