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Ноябрь 2021






Eduard Bershitskiy A Showdown from ‘Ada’: Judicial Division of Marital Property as a Bargain?
Case Comment on the Judgment of the Chamber for Economic Disputes of the RF SC No. 305-ЭС20-22249, 6 April 2021 The article analyzes the Judgment of the Judicial Chamber for Economic Disputes (JCED) of the SC RF No. 305- ЭС20-22249, 6 April 2021, in which the Court raises numerous interesting problems at the junction of civil, family and procedural law. The primary focus of the Court is on the admissibility of qualifying the judicial division of marital property as a juridical act. The memorandum of association of the company, in which the former spouse had a share, provided for the requirement to obtain the consent of other members for the transfer of the share to third parties solely by virtue of a juridical act, but not on other grounds. Hence, when, as a result of the divorce proceedings, the ex-wife of the partner acquired a share and entered the LLC, there inevitably arose a question regarding the legality of the ex-wife accession to the corporation and, accordingly, the legal nature of the judicial division of marital property. And the JCED, unlike the lower courts, considered that such a division is a juridical act. This conclusion of the Court is the main subject of the analysis within the present article. The article also discusses several other issues: the boundaries to which the establishment of corporate restrictions extends, the interpretation of the memorandum of association, the consequences of a violation of the procedure of acquiring consent to the ex-spouse’s entry into the LLC, as well as the limits of the pre-emptive right to purchase.
Keywords: interpretation, corporate law, memorandum of association, preemption, matrimonial property
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Alexander Guna The Doctrine of Linked Contracts: A Comparative Legal Study
German and Dutch courts has been developing the doctrine of linked contracts since the middle of 20th century. It helped to bundle together credit and sales contracts with different parties so as to protect the interest of consumers. Germany implemented special regulation on a financed purchase — first, in last decade of the 20th century, in a special act, and, second, in 2002, in the BGB. This article enquires whether the effect of linked contracts can become autonomous institute and get applied beyond the borders of merely practical solution in the consumer law.
Keywords: contract law, law of obligations, contract, contract of sale, loan agreement, linked contracts
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Vladimir Kostsov, Artem Sirota Enforcement of the Duty to Pay in Advance: A Critical Appraisal of the Emerging Approach
The article explores the emerging view in Russian doctrine and jurisprudence that advance payments cannot be recovered through the courts and that the creditor under such an obligation should use other means of legal protection, such as repudiation or suspension of performance. On the basis of a comparative legal, historical and political-legal analysis, the authors argue that such an approach cannot be a consequence of article 328, par. 3 of the Civil Code of the RF and the principle of reciprocity of civil-law obligations, and also cannot be considered as an exception to the admissibility of the claim for enforced performance in kind. Foreign legal systems do not have an analogue of such a broad rule prohibiting the collection of advances, and such a rule is contrary to commercial logic. Meanwhile, possible difficulties in the collection of advances should be solved by means of other legal doctrines, including the foreseeable breach of obligations (article 328, par. 2 of the Civil Code), the principle of mitigation of loss and the prohibition of abuse of right, which can lead to the refusal of the collection of advances only in exceptional cases and on a reasoned objection of the debtor.
Keywords: law of obligations, advance payments, reciprocity of civil law obligations, counter performance, performance in kind
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Konstantin Sklovskiy Enforcement of the Law on the Recovery of Property Obtained in Violation of the Anti-Corruption Act
The norm of article 235, par. 2, subpar. 8 of the Civil Code of the RF was enacted as a result of the joining to the Convention against Corruption. However, it has certain limitations in comparison with the provisions of both the Convention and Russian criminal law. The problem is that it has the practice of applying this rule often goes beyond the limits established by law. In particular, third parties bear the burden of proving the legality of obtaining property, similar to that which is borne by officials, their spouses and minor children. Property that is not specified in the law is seized, first of all — money. Income received by officials from prohibited business activities or property hidden from declaration is qualified as subject to seizure, although this does not follow from the law. The pledge of the seized property is canceled, although there are also no grounds for this in the law. The article analyzes these aspects of the application of the law. In addition, it is shown that to suit an official’s transactions to invalidate them not only does not follow from the law, but also does not meet the causes of the anti-corruption law.
Keywords: Convention against Corruption, сonfiscation, corruption, invalidity of transactions, termination of pledge (mortgage)
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