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Февраль 2022




Chief editor’s column


Interview of the issue


Topic of the issue

A.A. Gromov Material Change of Circumstances as a Basis for Contract Alteration or Termination
This article discusses certain key elements of clausula rebus sic stantibus. A special attention is drawn to the question, whether the present pandemic COVID-19 could be regarded as a ground for contract alteration or termination as a material change of circumstances.
Keywords: material change of circumstances, clausula rebus sic stantibus, impossibility of performance, force majeure
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A.A. Pavlov Prerequisites of Set-Off
Set-off is one of the traditional and most frequently used methods of terminating obligations. However, there are still many controversial issues of its application in the civil law doctrine and judicial practice. The purpose of this article is a complex analysis of set-off: positive (conditions of set-off) and negative (set-off limitations).
Keywords: set-off, offsetting prerequisites, set-off upon assignment, counterclaims, homogeneity of claims, netting
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I.S. Chuprunov Datio In Solutum and the Pre-Emptive Right to Purchase Participatory Interest (Shares)
The paper substantiates the fundamental possibility to extend the scope of the pre-emptive right to cover transfers of participatory interest (shares) as datio in solutum, and also discusses specific problems in this sphere.
Keywords: pre-emptive right, right of pre-emption, right of first refusal, scope of the pre-emptive right, datio in solutum, constitutive theory, corporate law
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Yu.N. Mullina Debt Relief as a Bilateral Transaction: How § 34 of the Plenary Ruling of the Supreme Court No. 6 Affects Russian Jurisprudence and Doctrine
The Plenary Ruling of the Russian Supreme Court No. 6 has put an end to the years of debate on the legal nature of debt relief by recognising debt relief as a bilateral act with tacit acceptance by a debtor. According to the judiciary’s position, the debtor may raise objections to the debt relief within a reasonable period of time, thereby neutralising the creditor’s declaration of release from debtor’s obligations. Though this step of the Supreme Court is epistemologically essential for academic discussions in Russian civil law, the courts themselves cite this paragraph of the Ruling reluctantly and, in a way, randomly.
Keywords: law of obligations, debt relief, waiver of a right, comparative jurisprudence
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D.B. Abushenko The Performance by the Guarantor of the Obligation and the Realisation of Their Transformation Right at the Stage of Execution of the Judicial Act Adopted on the Claim of the Creditor to the Debtor
The article deals with certain issues arising in connection with the performance of the obligation by the guarantor at the stage of execution of a judicial act adopted on a dispute previously resolved by the court between the creditor and the debtor. It is proved that the basis for replacing the claimant in the enforcement proceedings in the case of subrogation will be exclusively a substantive fact. The problems of objectification of the will of the guarantor who has chosen the regression model are investigated. The fate of the second (transformative) power belonging to the guarantor is discussed after he has expressed the will to implement the subrogation model in an acceptable form. The issues of the legal consequences of the guarantor’s choice of a recourse model for enforcement proceedings, as well as the mutual influence of the guarantor’s second right to apply to the recourse model and the institution of postponement (installment) of the execution of a judicial act adopted on the claim of the creditor to the debtor are considered.
Keywords: transformation right, guarantee, performance of obligations by the guarantor, subrogation, regress, personal claim of the guarantor, procedural succession, conclusive actions, enforcement proceedings, refusal of recovery
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E.S. Terdi The Impact of the Legal Impossibility of Performance of an Obligation on the Implementation of investment and Construction Projects Carried out with the Public Law Entities
On the example of two cases that were supervised by the Supreme Court of the Russian Federation in 2020 and 2017, correspondently, the impact of legal impossibility of performance of an obligation on the implementation of the investment and construction projects by the private investors together with the public law entities is considered. It is pointed out that the Russian Supreme Court, supervising the case of 2020, ignored the clarifications of its Plenum regarding the distinction between initial and subsequent impossibility of performance. The analysis of both cases suggests the stabilisation of judicial practice as to putting the risk of legal impossibility of performing the obligation to build, occurred without the fault of private investor, upon the public law entity. Author offers to impose on the latter the risk of counterparty’s expenses had been made before such impossibility occurred. Based on the analysis of the mentioned cases and special investment legislation, a number of arguments are given in favor of changing of effect of legal impossibility of performance: from the automatic termination of an obligation, as it is currently stated, to the granting to the parties the right to withdraw from a contract.
Keywords: impossibility of performance of an obligation, discharge of an obligation, nullity, investment, construction
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E.Yu. Petrov Universal Succession in Testator’s Contracts. Exceptions to the General Rule of Immutability of the Obligation in case of the Death of a Party
Survival of the deceased’s contractual obligations is a default inheritance law rule. However, it seems that death influences the obligations more than scholars used to think. Contract dissolution when its content is indispensably connected with the deceased is not the only case. Gap-filling interpretation of contracts, skills as well as habitual life style of heirs and (or) the deceased should also be taken into consideration. For these reasons, despite the lack of the directly expressed provision on that account, either heirs or surviving party might be eligible to dissolve remaining obligations and mitigate or even avoid liability.
Keywords: inheritance, dissolution of contract
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A.N. Guna Impracticability as a Grounds for Early Termination of Obligation
Current research is aiming at the analysis of the institution of impracticability, little known to Russian civil law. In foreign legal systems it helps to annul obligation — in total or only in part of debt. The nature of this institution however is not obvious, particularly with regard to different regulation of it in various legal systems. The research of peculiarities of impracticability and attempt to draw conclusions on its implementation, has its goal in supplementing Russian legal theory and practice.
Keywords: impossibility, change of circumstances, impracticability
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Discussion Board

M.L. Galperin How Will the Global Green Transition Affect the Law?
The article analyses what changes the law awaits within the framework of the announced “green” deal and concludes that the transition of the economy to low-carbon “rails” in its political, economic and social dimensions around the world will affect the very foundations of law, its philosophy and mission. The adaptation of the world economy to the new environmental agenda is already calling into question the traditional postulates of law: inviolability of property, freedom of contract and business, judicial protection of rights. At the same time, new global rules for a “green” world can be formulated only as a result of consensus, a search for a balance of interests, and a consistent legal consolidation of the approaches developed.
Keywords: mission of law, international dispute resolution, environmental protection, carbon neutrality
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Theory and practice

A.A. Esmanskiy Initial Undercapitalisation as a Ground for Subordinating the Claims of the Debtor’s Controlling Persons
The article deals with issues of applying the Supreme Court’s directives on the subordination of shareholder’s claims, originated in circumstances of initial undercapitalisation. The author analysed this ground for subordination and also considered the criteria for the adequate capitalisation of a company. Based on the analysis of case law, the author concludes that undercapitalisation of a society is understood as a situation when debt is many times greater than capital. The author also considers possibility of taking into account the dynamics of the capital for the purposes of subordination and the problem of determining the initial period of the debtor’s entrepreneurial activity. Finally, the author analyses the application of the directives on subordination for the purpose of challenging debtor’s transactions in bankruptcy.
Keywords: subordination of shareholder’s claims, undercapitalisation, initial undercapitalisation, insiders, persons in control of the debtor
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P.A. Skoblikov The Principle of Maximum Tolerance in Combating Crime and Its Manifestation in Modern Russian Legislation
The author analyses the draft law elaborated by the Office of the Human Rights Ombudsman in the Russian Federation and presented to the expert community in the fall of 2021 as strengthening the human rights protection in criminal proceedings which aims at further humanisation of criminal legislation. The provisions of the draft law are compared with the principles of justice, inevitability of criminal responsibility and punishment, scientific rigour, etc. A forecast is given on how the adoption of the draft law will affect the criminogenic situation in the country and law enforcement practice. The author cites other recent law-making initiatives which are conceptually similar to the reviewed draft law. The author concludes that all of them implicitly proceed from the principle of maximum tolerance to persons violating the criminal law.
Keywords: principle of maximum tolerance, humanisation of criminal policy, principle of zero tolerance, principle of justice, criminological recidivism of crimes, exemption from criminal liability on non-rehabilitation grounds, criminal record
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K.Yu. Molodyko, L.I. Galiakhmetova Some Directions of Development of Stock Market Legislation
In Russia, during the pandemic, there has been a rapid increase in the opening of brokerage accounts by individuals, about 15 million citizens have already opened them. In the developed economies jurisdiction, as in Russia, the right to acquisition of certain high-risk financial products is conditioned by the status of a qualified investor. A feature of the new Russian regulatory approach is the opportunity to obtain partial access to complex risky assets by passing an exam without obtaining the status of a qualified investor. In this case, the examiner is a financial organization the future counterparty under a civil contract. The article analyzes the ideology of such testing using the doctrinal developments of behavioral regulation. Debatable questions are raised about the advisability of ‘qualifying’ the individuals when they purchase goods and services both within the financial markets and outside them. Also we discuss the limits of adoption by non-judicial bodies, in particular regulators, the decisions of recognition contracts as void or vice versa of mandatory conclusion of contracts. It is substantiated that testing is ideologically aimed at protecting not only retail investors, but also brokers in the stock market. At the same time, there is a need to eliminate the conflict of interest that now exists in the Russian testing system by transferring the right to test potential retail investors to organizations such as universities and after the potential investor has completed mandatory training. It is also proposed to introduce guarantee mechanisms in the Russian stock market in case of bankruptcy of brokers. Particular attention is paid to protecting the interests of elderly people. There is also a need to harmonize the criteria for allowing retail investors to acquire risky assets within the Eurasian Economic Union.
Keywords: qualification of professional investors, protection of investors’ rights, conclusion of civil transactions, test, behavioral supervision, guarantee systems (insurance systems) in financial markets
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G.A. Esakov Catherine Maslova’s Case in the Senate (Based on the Novel “Resurrection” by Count Tolstoy)
The article reconstructs one of practically missing points in the novel “Resurrection” by Count Tolstoy, i.e. the cassation hearing of the Maslova’s case in the Governing Senate of the Russian Empire. The novel represents a detailed account of the jury trial against Maslova and her codefendants, but the cassation hearing was given little attention. The article tries to reconstruct the possible cassation grounds and then to analyse them in light of the procedural legislation and case law of that time. The conclusion is that there was no obvious legal error in dismissing the case in the Senate.
Keywords: Senate, cassation, jury’s charge, jury trial, unclear verdict
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