Журнал ЗАКОН

Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 305-ЭС19-21740, 28 February 2020 In a dispute concerning cadastral value, the market value established by an appraiser was found by the court to be unreliable. In the opinion of the Supreme Court of the Russian Federation, this decision has an absolute legal effect based on the absolute legal meaning of the market value’s credibility itself. Therefore, it is sufficient for declaring the appraisal services provided to be of poor quality and for the recovery of damages from the appraiser even though the appraiser was not involved in the first dispute. However, this approach binds the appraiser to the results of a process to which he was not a part and does not take into account uncertainty that is inherent in most market value assessment results and therefore the appraiser must be involved as a third party in court cases where the correctness of the report he has produced is being assessed. Otherwise, the judgment that find his report unreliable can only be partially binding in a new dispute, leading to the redistribution of the burden of proof.

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Keywords: contestation of cadastral value, damages, appraisal

The paper analyses the issues relating to the scope of the pre-emptive right to purchase participatory interest (shares), including problems with extension of this right to such means of disposal as exchange transactions, contribution to the charter capital, transfer of shares to repay a loan, etc. The author demonstrates that it is necessary to move from the narrow approach in determining the scope of the pre-emptive right to the functional approach, according to which the rightholder can use its pre-emptive right if it can procure that the transferor (grantor) receives the same consideration for the participatory interest (shares) that was promised to it by the transferee (counterparty). In addition, the article distinguishes between expanding the scope of the preemptive right on the basis of the functional approach and struggle against circumvention of the pre-emptive right and proposes a differentiated system of means for such struggle.

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Keywords: pre-emptive right, right of pre-emption, right of first refusal, scope of the pre-emptive right, circumvention of the pre-emptive right, constitutive theory, corporate law

Russian insurance law stands on a position that subrogation does not apply to personal insurance. This position dwells on the argument that the claim the insured person has against the wrongdoer is of a personal nature and cannot be transferred to third parties. The article shows that, despite an unambiguous regulation of this issue in the Russian legislation, there are serious grounds to consider allowing subrogation in personal indemnity insurance. These arguments include doubts as to whether the claim preserves its personal nature. One more argument is the importance of the goals of subrogation, i.e. avoidance of either undue enrichment of the assured, or the unjustified discharge of the wrongdoer from liability. The experience of foreign legal systems also shows that subrogation in personal indemnity insurance is in principle possible. These grounds were considered in the course of drafting the Concept for the reform of Chapter 48 (‘Insurance’) of the Russian Civil Code. It was decided not to amend article 965 of the Civil Code and not to introduce subrogation for personal indemnity insurance. This decision was taken, as the arguments for subrogation were balanced by equally serious arguments against it. Although at this moment it was decided to refrain from amendments in Russian law, the author believes such development is still well possible in the future.

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Keywords: subrogation, life insurance, fixed sums insurance, indemnity insurance

The article notes already established practice of transferring state executive powers to private persons. The Constitutional Court of the Russian Federation, in turn, has repeatedly confirmed the legitimacy of such delegation. At the same time, with regard to the powers of another governmental branch — the judicial — the Constitution of the Russian Federation, in its literal text, gives the courts a monopoly on the administration of justice. Nevertheless, the increasing burden on the courts encourages the legislator to remove the simplest disputes from the primary competence of the courts and transfer them to the resolution of qualified private persons. Such a phenomenon in Western legal literature is called the privatisation of justice. In the Russian Federation, the first cases of such privatisation can be found in the activities of the Commissioner for the Rights of Consumers of Financial Services and the Arbitration Manager, whose competence in establishing the validity of creditors’ claims in bankruptcy cases is proposed by the Supreme Court of the Russian Federation. These persons are actually assigned the obligation of officially resolving a private dispute, which allows us to raise the question of delegating judicial functions to them. This question makes us turn to general doctrinal approaches to a pithy definition of the administration of justice. The author examines in detail the procedural rules for the activities of the aforementioned persons, notes gaps and defects in legislation, and also identifies fundamental differences from other forms of non-judicial protection of civil rights. The properties of decisions made by the results of dispute resolution are analysed, their qualities are compared with signs of legal force, which, according to classical approaches, is an attribute of an exclusively judicial act. The author concludes that the state can transfer the execution of its functions to other persons only with the preservation of the same level of guarantees as with the administration of justice in state courts. Any other approach would entail the actual creation of situational emergency ‘courts’ in those categories of cases where an excessive load of ordinary state courts would be undesirable.

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Keywords: court system, privatisation of justice, the Commissioner for the Rights of Consumers of Financial Services, Arbitration Manager, register of claims of creditors

In this article author considers whether it is reasonable from the legal policy perspective to apply fiduciary duties to minority shareholders. This issue has not previously attracted due attention in the Russian legal doctrine. It is generally accepted that minority shareholders being mere passive investors are not able to influence corporations. Thus, it is not reasonable to apply to them the same measures as to directors or controlling shareholders. The paper demonstrates why this is no longer an axiom in the modern context. Moreover, further development of shareholders liability as an ex post control mechanism could be much more favourable alternative (whether for minority shareholders or the corporation and other shareholders) in comparison with those inefficient and disproportionate ex ante restrictions to the minority shareholders corporate rights that have been introduced by Russian legislator in recent years.

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Keywords: corporate law, minority shareholders, fiduciary duties, conflict of interests

This article offers an analysis of cases related to the acquisition of church land by way of usucapio, which was one of the most controversial issues in cassation practice of the Ruling Senate in Russian Empire. It inquires into leading precedents, in the first place Pavlov case (1893), and gives an extensive account of the heated argument created by this issue that ultimately led to the Senate ruling in Armfelds case (1902), where the supreme court of the Empire had explicitly repudiated its previous view.

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Keywords: usucapio, acquisitive prescription, church land, Ruling Senate, Civil Cassation Department