Magazine content за Июль 2021 г.
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Июль 2021





Vladislav Savinykh, Tatyana Krasnova ‘Irresponsible’ Change of Use of a Land Plot
Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 310-ЭС20-8733, 1 October 2020, and on the Judgment of the RF CC No. 42, 16 October 2020 Commenting on the acts of the Constitutional Court of the Russian Federation and the Chamber for Economic Disputes of the RF SC, the authors conclude that the Russian legislation obliges a rightholder of a land plot to enter information on the selected type of permitted use of the plot into the state land register. At the same time, the legislation does not establish the procedure (terms and conditions) for implementation of this obligation, so it is not enforceable. At the same time, this obligation is in no way connected with the legally designated purpose of a land plot, and therefore its violation does not provide grounds for bringing to administrative responsibility under Part 1 of Article 8.8 of the RF Code of Administrative Offences for misuse of a land plot. The authors also substantiate that after the implementation of zoning, the types of permitted use of land plots listed in the land register are only a declaration of the types of actual use of land plots and do not limit the owners in their right to use the plots in other ways permitted in accordance with the city planning regulations.
Keywords: land plot, permitted use, legally designated purpose, administrative liability
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Aydar Sultanov Cassation Proceedings in the Supreme Court of the Russian Federation for the Formation of Uniform Practice
Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 309-ЭС19-19206, 17 January 2020 This article deals with the problem of forming uniform judicial practice taking as an example some antitrust cases in which the courts tended to rely on objective imputation. In the commented judgment, the Supreme Court of the Russian Federation used legal positions of the Constitutional Court of the Russian Federation to form a uniform practice.
Keywords: uniform practice, guilt, antitrust offense, Сonstitutional Court of the Russian Federation
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Sergey Budylin The Mirror Image Case, or A Tort Action by a Creditor of an Insolvent Company against Its Controlling Person
Comment on the Case Sevilleja v. Marex Financial Ltd (Rev. 1) [2020] UKSC 31 (15 July 2020) This case, dealing with the unfair divestiture of assets from offshore companies, raised the question of whether a creditor of such a company could sue the owner of the company directly rather than the bankrupt company itself. In this context, the UK Supreme Court considered how broadly the principle of reflective losses should be interpreted to prohibit claims over the head of a company, and whether such a principle applies at all in English law. As a result, the creditor was given the right to pursue its claim.
Keywords: England, insolvency, tort action, debtor in control, subsidiary liability in bankruptcy
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Valerian Mamageishvili On the Issue of Ensuring Accessibility of the Information about Limitation of Directors’ Powers
Challenging transactions carried out by company directors in excess of their authority represents one of the practical problems arising from the application of Article 174 (1) of the Russian Civil Code. The key issue, however, lies in the fact that existing legal framework does not accommodate the interests of business corporations whose members have no opportunity to effectively limit the powers of their representatives or to enforce such limitations against third parties. The article considers main issues related to the application of Article 174 (1), reviews main sources of information on the powers of counterparty representatives, analyses court practice and discusses possible development of the issues in question.
Keywords: corporate governance, representation, corporate law, invalidity of transactions
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Andrey Gromov Consequences of Premature Termination of a Lease if There Is a Sublet (Part 1)
This article attempts to analyse the relationship between landlord, tenant and subtenant when a lease is prematurely terminated. To what extent are the parties free to determine the consequences of this relationship? Do the manner and grounds for early termination of the lease have a bearing on the content of the rights and obligations arising between the parties to the two contracts? In answering these questions, possible solutions are evaluated from the point of view of the effectiveness of both the principle of relativity and the rules aimed at giving the contractual chain a legal meaning.
Keywords: lease, sublease, contractual chain, contract law
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Radik Lugmanov Evolution of Information Duties in French Civil Law
The French law has provided some remarkable examples of the wandering of jurisprudence in an attempt to build a consistent system of rules that would find a harmonious place for legal categories such as error, deception by default, the duty to inform and the duty to seek information independently. The examples of several well-known cases in the field of art clearly show the variants of the seller’s misperception about the essential qualities of the object of sale, which in the opinion of the author of the article really hides another, real problem of misperception about the price of a contract. A kind of culmination is the Buldus case, where one can see the intersection of different doctrines and political and legal currents.
Keywords: mistake, fraud, duty to inform, le devoir de s’informer, la réticence dolosive
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Elizaveta Timerbulatova Design of the Inheritance Fund in Russia and Germany
Private foundation in civilian systems performs a similar function as trust in common law. Unlike trusts, foundations are treated as independent legal persons which have their own executive board and beneficiaries. Foundations were introduced to Russian Civil Code in 2018 and since then could hardly be found in the real world, as many people still fear legal uncertainty and see in this legal concept a potential for abuse of rights. In this article, the author analyses the foundations’ purpose in German-speaking countries, and also points out the imperfections of Russian regulation regarding the creation of testamentary foundations and the mechanism of third-party rights’ protection (obligatory heirs, spouses, beneficiaries and other creditors).
Keywords: testamentary foundation, private foundation, law of inheritance
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Alexander Guna Coordination of Claims against Debtors from Different Grounds. Overcoming Dogma
The first part of the article proves that plurality of debtors from different grounds (contract and delict, several different contracts) is both possible from theoretical perspective and is following from national legislations and model codes (DCFR, PECL). Possible uncertainty in interpretation of Russian Civil Code must not hamper the right approach, which is observed only in a limited number of cases. The second part is dedicated to the analysis of the possible options of passive plurality as a basis for the balance between creditor and debtor.
Keywords: passive plurality, solidarity, contract law, delicts (torts)
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