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ARCHIVE FOR 2021    RUSSIAN

Сентябрь 2021

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Take-or-Pay Condition and Freedom of Contract
Comments by Yu. Tay, A. Pavlov, S. Sarbash, V. Belov, V. Baybak, E. Evstigneev
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Topic of the issue

A.A. Vishnevskiy Subjects, Limits and Principles of Consumer Protection
The article is of a debatable character and points out to the two main aspects. First: the firm formal definition of a consumer is not suitable in certain situations, in some cases it is to be put aside in favour of removal of information disproportion and unequal bargaining powers, thus protecting as consumers those persons who are not qualified formally as consumers. This task is achievable in case the courts are granted the power to extent (or limit) the consumer protection taking into consideration the circumstances of a particular case. Second: with regard to the content and volume of the consumer protection it should not encourage the carelessness of a consumer; to avoid such a tendency the legislator is to care not only about the consumer, but the true balance of the interests as well as the interest of the market as a whole.
Keywords: consumer protection, consumer protection limits, wellbalanced consumer protection, consumer extremism
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V.A. Belov Types of Consumers Claims: Theoretical and Practical Analysis
In law enforcement and judicial practice, as well as in practical legal journals and the press, there is the term “consumer terrorism (consumer extremism)”, which describes a situation when, in the opinion of a merchant, a consumer or a group of consumers makes excessive, unlawful and unreasonable demands, and in a number of cases, retailers are “bombarded” with consumer claims at the location of the plaintiff, guided by the rule of alternative jurisdiction. At the same time, it seems that at present the issue of “consumer terrorism” or types of consumer claims has not been fully studied and covered in the legal literature in order to identify the reasons, prerequisites and types of claims put forward by consumers, which emphasises the relevance of this article. Therefore, it is possible to attract the attention to some aspects of the designated topic, both from the point of view of legal science and entrepreneurial aspects that characterise the vision of merchants in the field of retail.
Keywords: consumer terrorism, consumer extremism, abuse of law, consumer, retailer
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M.A. Tserkovnikov Special Protection of a Weak Party in Contract of Adhesion
The article is devoted to the special legal remedies available to the party that has acceded to a standard form contract. The author concludes that the protection against unfair contract terms stipulated in Art. 428 of the Civil Code is ineffective, and suggests to use other tools, e.g. block the terms imposed by the strong party on the basis of Art. 10 of the Civil Code.
Keywords: contract of adhesion, weak party to the contract, unfair contractual terms
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A.E. Kirpichev Torts in Consumer Relations
The article offers an analysis of cases of application of rules on torts to consumers relations. It is concluded that the existence of rules on direct claim in consumer relations cannot be explained solely by the specific content of the legal concept of “consumer” or by the legislator’s desire to reduce the possible chain of recourse actions, since the legislator allows a direct claim even if its outcome for the consumer is substantial outperforms the chain of recourse actions. At the same time, even purely tort relations may have a consumer nature, and therefore, provisions on tort obligations and special rules on protecting consumer rights will be simultaneously applied to them. At the same time, Russian courts apply tort law when compensate harm to a contractual party. By virtue of the legal position of the Supreme Court of the Russian Federation, courts are required to seek compensation for non-pecuniary damage in all cases where such a claim is claimed by a consumer whose rights have been violated.
Keywords: consumer protection, consumer relations, tort law, system of obligations
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A.S. Kuskov Features of Consumer Protection in Pandemic and Post-Pandemic Periods
The article analyses the features of protecting the rights of consumers in the context of the pandemic of coronavirus infection. The author identified the fundamental directions and trends in reforming the current legislation on consumer protection in relation to the sectors most affected by coronavirus infection. In particular, special attention is paid to the problems of protecting the rights of consumers of tourist, hotel and transport services in the pandemic. Conclusions are drawn on further improvement of industry and special legislation in order to achieve an optimal balance of interests of consumer relations.
Keywords: contract of carriage, agreement on the sale of the tourist product, coronavirus infection, pandemic, consumer
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A.S. Selivanovskiy Retail Investor in the Securities Market: An Agreement with a Broker
In recent years, a massive retail investor has entered the Russian securities market. Given the low level of financial and legal literacy of the population, the legislator, the regulator and self-regulatory organisations are actively changing the regulation, introducing various mechanisms aimed at ensuring the protection of the rights of retail investors. A group of researchers conducted a study of contractual relations between professional participants in the securities market and their clients — individuals (retail investors). The article presents some of the results of this study and makes suggestions on the formation of additional mechanisms to protect the weak side in such contracts.
Keywords: retail investors, protection of the rights of retail investors, investment firms in the securities market, brokerage agreement, depositary agreement, consumer of financial services
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Discussion Board

A.A. Ivanov Expansion of the Subject of Civil Law: The Social Aspect
For several years I have been trying to implement the model, which I myself call “from the post to an article”, in which an academic article is created from several publications on the Internet. Sometimes I purposely develop one topic in a few posts. My aim is to allow interaction with readers, to polish my thoughts. So, here I am offering the material, which is written on the basis of several posts devoted to the “New Social Law”.
Keywords: subject matter of civil law, new social law
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A.A. Dzhagaryan Offseason
Crossroads of power and freedom — Carbon tax and the “new oil” — Dispute about the market status of the Russian economy in the USA — Digital economy and digital sovereignty — “Rain” of foreign agents and the search for juridical “umbrellas” — Controversial reception of take-or-pay condition and the development of judicial practice on the debtor’s rights
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Press Release

 

Theory and practice

I.S. Shitkina “Plural Sole Executive Body”: Problems of Law and Practice
The article focuses on a legal construction of a “plural sole executive body”, particularly its usage in commercial companies, distribution of powers among several directors, consequences of abuse of power, as well as appointment and termination of powers of directors acting jointly or independently of each other and their civil liability to the company. The author concludes that some issues arising from the activity of a “plural sole executive body” are surmountable in practice and in order to surmount the others the current legislation should be amended.
Keywords: “plural sole executive body”, authority of sole executive body, director’s responsibility
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A.V. Gabov Turnover of the Set of Rights of the Founder of an Autonomous Non-Profit Organisation
The pandemic has exacerbated and made relevant many issues that in quieter times did not attract much attention. One of such issues was the legal regime of the complex of rights and obligations of the founders of some unitary organisations. In particular, in notarial practice, in connection with the death of the founders of autonomous non-profit organisations, questions began to arise about the possibility of inheriting the rights and obligations of the founders of such organisations. The current legislation has not previously spoiled the participants of civil turnover with the certainty of the norms on the legal status of autonomous non-profit organisations. During the pandemic, it became clear that the regulation is so vague that it generates numerous disputes related to the approach of notaries who believe that the rights and obligations of the founder of an autonomous non-profit organisation cannot be the subject of inheritance. This not only violates the rights and obligations of heirs, but also threatens the existence of such organisations. The author of the article shows that this approach is not based on the norms of the current legislation; at the same time, quite serious work is obviously required to modify the legal status of an autonomous non-profit organisation.
Keywords: legal entity, corporation, unitary organisation, autonomous non-profit organisation, founder of an autonomous non-profit organisation, inheriting the rights and obligations of the founders
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E.A. Zainchukovskaia (Not) Twice for the Same: To the Issue of Compensation Mechanisms for Damage Caused to the Budget System of the RF Due to Underpayment of Taxes
The article deals with the issues of tax debts recovery of legal entity from third parties under the civil laws and competition of claims of tax authorities. The author concludes that tax debts recovery from the subsidiary debtor under the tort rules may occur only in exceptional cases. When deciding on identity of claims of the tax authorities, the courts should pay attention to oneness of material interest. If the tax authorities use formally different claims to meet the same fiscal interest, the claims should not be re-enforced.
Keywords: Akhmadeeva case, damage compensation to the budget system, subsidiary liability, competition of claims, inadmissibility of double recovery
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Foreign experience

D.O. Tuzov, E.V. Chichkan, A.M. Sargsyan Consumer Protection from Unfair Contract Terms in the Italian Law (As Compared to the Russian Regulation)
The purpose of this article is to inform the Russian reader about the Italian consumer protection against unfair contract terms established by both national autonomous regulation and the implemented EEC Directive No. 93/13/EEC. It focuses on the Directive itself, the Italian Civil and Consumer Codes (which are translated by the authors), as well as on the most important positions of Italian civil doctrine, Italian Court of Cassation and the European Court of Justice in order to understand the provisions of these regulatory acts. The work does not purport to be exhaustive or in-depth analysis, providing only a general overview of the Italian law on the relevant relations in comparison with Russian law. It may be useful for further comparative study of consumer law, a deeper understanding of the problem of protection against unfair contract terms in domestic law and respective improvement of jurisprudence and legislation.
Keywords: Italian Civil Code, Codice civile italiano, Consumer Code of Italy, Codice del consumo italiano, EU law, EEC Directive No. 93/13/EEC, consumer protection legislation, diritto dei consumatori, consumer contracts,
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