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Декабрь 2021





Anton Nikiforov On Timing in Tax Law in Light of the Supreme Court’s Position on Neringa
Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 307-ЭС21-2135, 5 July 2021 Tax inspectorates nowadays often drag out the deadlines for issuing decisions. They usually have to negotiate draft decisions with higher tax authorities. However, such delays can deprive tax officials of the opportunity to collect tax debts from a taxpayer. The Chamber for Economic Disputes of the SC RF revisited the issue of how to calculate the period after which the budget will no longer be able to claim tax revenues.
Keywords: tax law, tax state audit, collection of tax arrears, tax payment demand
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Anna Markelova, Oksana Kozyr Requisition, Necessity and Victim’s Fault
Commentary on the Judgment of the Constitutional Court of the Russian Federation No. 33-П, 8 July 2021 The Constitutional Court of the Russian Federation declared that art. 242 and 1083 of the Civil Code of the Russian Federation are inconsistent with the Constitution of the Russian Federation, because, when applied by analogy, they do not provide a clear answer to the issue whether it is necessary to take into account any fault of the owner of deceased animals when they are exterminated by the state to prevent spread of the decease. The article analyses what legal qualification should be given to the actions of the state when it exterminates the animals: should they be considered as a requisition or an action of extreme necessity. It is argued that the compensation due to the owner could be reduced if the infestation occurred because of his fault. In this respect arguments based on distributive justice could limit the principle of the inviolability of property.
Keywords: ownership, requisition, necessity, victim’s fault, eminent domain, justice
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Ivan Podkopalov Some Aspects of the Legal Regulation of Cross-Border Transactions with Securities through an Intermediary
The article analyses the legal problems of cross-border transactions in intermediated securities. It seeks to prove three main points. First, the most feasible way to eliminate legal uncertainty in cross-border transactions in intermediated securities is to modernise conflict of laws rules. Secondly, conflict of laws rules governing proprietary aspects of such transactions should be based on the no look-through principle. Thirdly, the no lookthrough principle is more compatible with multi-tiered entitlement systems than with direct ownership systems. On the basis of the aforementioned arguments, proposals to modernise Russian laws on intermediated securities are developed. As regards private international law, it is maintained that the implementation of the no look-through principle is vital for legal certainty. As regards substantive law, the transition to the multi-tiered entitlement system is advocated.
Keywords: intermediated securities, securities, conflict of laws, PRIMA, no look-through
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Yury Zakaznov, Daria Pavlova, Oleg Ryabtsev Shareholders Lock-Up in Close Corporations
Commented judgment contains legal view on several principal topics of corporate law: legal qualification of articles of association and shareholders resolutions, the presumption of freedom of contract, which is also applied to share transfer rules. Moreover, The Supreme Court analysed the admissibility of share transfer restrictions, including lock-up and its appropriate term. This question is still waiting for its scrutiny in Russian legal science, and this paper contains the overview of possible approaches to shareholders lock-up in close corporations.
Keywords: corporate law, lock-up in corporation, preemptive right of purchase, option, exit from corporation
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Dmitry Stepanov Shareholders Lock-Up in a Non-Public Corporation: Blocking For a Limited Period of Time or Indefinitely
The case of OOO ‘Yana Tormysh’ resolved recently by the Russian Supreme Court (Judgment of the Chamber for Economic Disputes No. 306-ЭС19-24912, published 11.06.2020) has inspired numerous commentaries both from legal scholars and practitioners. However, most of the commentators — as the author of this paper argues — tend to discuss salient issues of the case and missed one of the key issues of the case. The issue in question is how to define a reasonable term or more broadly what is reasonableness for any period of time for lock-ups in close corporations. Some reference to such reasonable term — which might be found in the Supreme Court ruling — is in fact empty link, since the Court did not provide any guidelines for practitioners as how to define such a term. This paper aims to address this key legal policy issue in regards to modern Russian corporate law. As the author argues, this problem should be understood and addressed as an example of the application of the freedom of contract concept to the law of close corporations. Since relations of shareholders of a close corporation are akin to those of business partners, as opposed to individuals in the B2C context, courts accordingly must upheld their contractual arrangements for long-period or even indefinite lock-up agreements. The author of the paper supports this pro-contractarian thesis by various law policy arguments.
Keywords: corporate law, preemptive right of purchase, transfer of shares, sale of shares, consent on transaction
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Andrey Rybalov Theses on the System of Encumbrances of Ownership
The actual task of the civil law reform is not to build an isolated system of property rights, but to create a general category of encumbrances of ownership. In this case, it will be possible to make general provisions concerning encumbrances of a different nature: regarding their registration, the elimination of encumbrances as a result of an acquiring property rights by a bona fide purchaser, etc. Within the category of encumbrances of ownership, special regulation can be distinguished for their individual types. In particular, the ‘classical’ limited real rights must be placed in a separate section, which will make it possible to finally formulate their correct definition.
Keywords: property law, ownership, limited property rights, encumbrances of ownership
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Sergey Budylin The Counterparty Is Dead, but His Obligation Lives on. Inheritance of Contractual Obligations in England, the USA and Russia
What if a person who is a party to a contract dies? Do his contractual obligations ‘die’ with him or pass to his heirs? Does the answer depend on the nature of the obligation? Is the obligation to repay a loan different in this sense from the obligation to sing an aria at the Bolshoi Theatre? The article discusses how these questions are answered in the legal systems of England, Russia and the US. The approach is roughly the same everywhere: as a general rule, the obligation continues, but the personal obligation terminates (which means that not only should the heirs not sing the aria, but they should not compensate the producer for the deceased’s failure to perform the aria after his death). The main problem is the distinction between personal and ordinary contractual obligations. This problem is far from being as straightforward as it may appear at first glance. Among other things, courts should consider the intentions of the parties themselves when entering into a contract.
Keywords: comparative law, contract law, obligation, inheritance, common law
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Ilia Pisarevskiy Seizure of Debtor’s Property in Criminal Procedure in the Light of Collision between Private and Public Interests
The article deals with the problem of collision between private and public interests in sphere of criminal procedure and insolvency in case of distraint of bankruptcy assets. It is mentioned that private interest prevails in sphere of insolvency and vice versa public in sphere of criminal procedure, while both these can coexist. On the other hand it leads to collisions also inherent in foreign countries. Analyzing positions of Constitutional Court of Russian Federation and comparing goals of legal regulations of insolvency and criminal procedure the author finds that for the matter of public goals like a proper criminal investigation and seizure of property with ‘criminal’ background, distraint of property is an adequate and possible measure. While considering distraint of property as a way of securing victim’s right for criminal remedy and restitution payments author stipulates that it leads to paradox when being a victim is more profitably then trustee in bankruptcy. However practice of arbitration and regular courts concerning this matter is contradictory. In fact regular courts continue to impose and prolong distraints of property while arbitration courts find it unavoidable and thus author concludes that Constitutional Court of Russian Federation must take action.
Keywords: bankruptcy, criminal procedure, bankruptcy assets, seizure of property, civil claim in criminal proceedings
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