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Октябрь 2021





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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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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