ARCHIVE FOR 2021 RUSSIAN
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Октябрь 2021
CONTENT
Olga Pleshanova Ad Hoc Pledged Creditor Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC
No. 307-ЭС21-5824, 22 July 2021
The commented case concerns the legal consequences of a sale contract’s termination in case of the seller’s
bankruptcy. The Supreme Court of Russia’s (RF SC) legal position is to recognise that the buyer who returns the
goods and requires their price has a pledge over the goods that he returned. It is not the first case when the RF
SC creates pledge in the context of bankruptcy. Thus, this right was granted to a creditor who has used his right of
retention of the bankrupt’s property. This approach expands the number of pledge creditors in bankruptcy cases
and entails substantial legal risks. The author examines how the Supreme Court settles parties’ mutual obligations
in different situations and comes to conclusion that it is important to develop general approaches applicable to
different cases.
Keywords:
obligations, bankruptcy, performance of obligations, pledge, retention (right of lien)
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Ernesta Ippolitova Graphic User Interface as Intellectual Property Object: US and Russian Experience The article analyses the legal status of graphical user interface, defines its place among other intellectual property
objects and studies the ways and limits of its exclusive protection. The author investigates the possible models of
GI protection in Russian law and compares them to the existing models in the USA.
The paper emphasizes the difference between the graphical user interface and other results of intellectual
activity mentioned in the legislation. The author suggests that the graphical interface, although part of a
computer programme, should be governed by the instruments of patent law but not copyright law. The article
concludes that in order to ensure adequate protection of the graphical interface by patent law, a number
of amendments to part 4 of the Civil Code of the Russian Federation are also necessary. Such changes
are aimed at finding a balance between the interests of right holders and the development of information
technology.
Keywords:
graphical user interface, GUI, software, copyright, patent right, creation, industrial design, intellectual property
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FREE TRIBUNE
Tatiana Neshataeva Civil Rights Protection and Judiciary in a Eurasian Context A uniform understanding of the law as well as the resolution of disputes is the main task of the judiciary. One of the
obstacles to its implementation is the subjective revision of acts which have entered into force and their groundless
cancellation. The author draws parallels between the reform of arbitrazh process in the Russian Federation in the
late 1990s and the present-day functioning of the Court of the Eurasian Economic Union (EEU). The solution
should be searched in two directions — procedural and judicial. The grounds for reviewing the Court’s decision
should be clearly stipulated in the EEU law. The requirements for the education and professionalism of applicants
for the position of a judge of an international court, the procedure for appointing judges from the member states,
as well as changes in the procedures for selecting the Court’s leadership should be changed.
Keywords:
uniform judicial practice, judicial review, Eurasian integration, Court of the Eurasian Economic Union
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Alexander Kuznetsov Some Issues of the Protection of Creditors’ Rights in the Process of Company Splitting and Spinning Off The important task of any legislation is to protect the rights of creditors in the process of reorganisation of their
debtors. The non-triviality of the relevant regulation is that an adequate balance must be found between the
interests of the companies to be reorganised and those of their creditors, because if the legal regulation is
extremely burdensome, entrepreneurs will not be able or willing to take advantage of such a legal regime.
The article, based on the best practices of European countries, analyses the peculiarities of creditor protection in
the course of reorganisation in the form of division and separation.
On the basis of the research, it is concluded that the best model for the protection of creditors in the course of
division (spin-off) is that the joint liability of legal successors should only occur where reorganisation has caused
default, with such liability limited to the amount of property transferred to the respective legal successor in the
course of reorganisation, and a reasonably long period for filing such claims (2–4 years) and it is also necessary
to link the application of joint liability with the right to object to reorganisation, ensuring that the former (joint
liability) applies only where the creditor was not entitled or able (e.g. due to a failure to notify) to object to the
reorganisation or made use of it, but the company under reorganisation did not meet its claims.
Keywords:
company law, reorganisation of companies, protection of creditors
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Dariia Zhestovskaia On the Allowance of Claims Confirmed by a Judgment: from the Principle of Relativity to the Phenomenon of Opposability The modern Russian discussion contrasts two models of inclusion in the list of creditors in bankruptcy when
a creditor’s claim is confirmed by a judgment. One model considers that the judgment confirming a creditor’s
claim has an absolute legal force. The other insists that its legal force is relative. The Russian bankruptcy
law does not allow third party creditors to oppose claims confirmed by a judgment. This has led one to think
that Russia belongs to the not highly regarded group of jurisdictions that adhere to the principle of absolute
legal force of a judgment. On the basis of the relative force theory the doctrine proposes an alternative
model. As creditors have not participated in the pre-bankruptcy, process they should not be bound by the
judgment which resolves this dispute. Consequently, creditors should have a right to object such a claim.
The article considers whether there is a direct correlation between the concept of subjective limits of legal
force and the models of inclusion of claims in the list of creditors.
Keywords:
bankruptcy, list of creditors, judgment, legal force, res iudicata, appeal
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Ruslan Temurziev Non-mandatory Regulation of the Rights in Rem: Numerus Apertus Explicitly and Implicitly The article analyses different variants of the organisation of the system of property rights from the point of view
of non-mandatory character of the general provisions on property rights and the norms of individual institutions.
Comparisons are made between the legal systems that formally adhere to the principle of a closed list of rights
in rem, the legal systems that declare the freedom to create unnamed rights in rem, and the legal systems in
which the choice in favour of one or another principle is not declared explicitly in law.
Keywords:
property rights, numerus clausus, real obligations, numerus apertus, droit réel de jouissance spéciale, usufruct, easements
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