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Март 2022




Radislav Repin, Alisa Goss Pledge of Movables and Lex Commissoria: Description of Its Operation
Based on the Judgment of the of the Chamber for Commercial Disputes of the SC RF No. 302-ЭС21-4332, 10 August 2021 This article describes the mechanism of lex commissoria in the pledge relations. The reason for writing it was the judgment of the Chamber for Economic Disputes of the SC RF No. 302-ЭС21-4332, August 10, 2021. The authors defend the material nature of the right of pledge, analyze the procedure of its establishment and exercise and also state that when a commissory clause is in effect, ownership of the object of pledge is transferred to the pledgee by means of a unilateral statement of assignment regardless of the location of the thing. And the basis for such an assignment is the security agreement.
Keywords: pledge, lex commissoria, securing an obligation, ownership, possession, transfer of thing
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Sergey Budylin The Case of the Battle of the Robots, or Can a Smart Contract Be Invalid?
Commentary to the Judgment of the Singapore Court of Appeal in Quoine Pte Ltd v. B2C2 Ltd [2020] SGCA (I) 02 The article discusses a decision of Singapore’s highest court, which considered whether a transaction between two computer algorithms (conventionally speaking, robots) could be invalidated because one of the parties to the transaction was materially mistaken. The key problem is how to determine the mental state of the parties to such a transaction at the time of its execution, if the robot owners were not personally involved in the transaction? According to most judges, the defendant party is imputed the mental state of the programmer who programmed its robot. In the opinion of the English judge who delivered the dissenting opinion, the party is imputed with the mental state of a ‘smart trader’ if he had participated in the transaction instead of her robot. The term ’smart contract’ does not appear in the case. However, many of the points it makes apply to smart contracts, understood as computer algorithms that exist and are executed on blockchains.
Keywords: smart contract, cryptocurrency, invalidity of contract, material mistake, equity
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Nikita Ivanov Compensation for Infringement of an Exclusive Right in the Form of Double the Value of the Counterfeit and the Right Holder’s Losses
The article examines the place of compensation in the form of double the value of the counterfeit in the system of methods of protection of an exclusive right. Different variants of understanding of its nature and conditions of application are offered and analyzed. It is submitted that these problems depend on a more general question about the nature and conditions of the application of the method of protection of civil rights provided by paragraph 2 of clause 2 of art. 15 of the Civil Code. The article argues that it is wrong to collect the compensation of this type from several successive distributors of a single batch of counterfeit goods. There are, however, instances where, as an exception, such recovery may be recognized as reasonable.
Keywords: intellectual property, exclusive right, compensation for violation of an exclusive right, damages
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Ekaterina Terdi, Mikhail Aseev The Concept of Reforming the Termination of Residential Tenancy Agreement
The article is devoted to the critical analysis of the rules of the Russian Civil Code that allow only judicial termination of a residential tenancy agreement at the request of the landlord. The comparative and historical legal analysis shows that even in those countries where protection of consumers’ rights is one of the priorities (in particular, in Germany and France) the general rule is unilateral tenancy termination by the landlord. Its prohibition in Russian civil law is the result of an uncritical inheritance of the Soviet model of protection of the tenants’ rights through the mandatory judicial tenancy termination. The latter, however, does not correspond to the legal nature of commercial tenancy. Moreover, in a market economy it impedes the increase of the transparency of the tenancy market and development of taxation system of the landlords, as well as it promotes such negative externalities as violation of the rights of the neighbors of defaulting tenant and the owners of the other residential premises in the apartment buildings. The authors conclude that reform of legal regulation of tenancy termination is needed in order to provide to the landlord the right of unilateral termination of the residential tenancy agreement (at least in the cases of its fundamental breach by the tenant). They offer two models of this reform, both of which involve implementation of out of court eviction procedure after termination of a notarized residential tenancy agreement.
Keywords: residential tenancy agreement, judicial and unilateral termination, eviction, notary writ
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Evgeniya Domshenko (Chervets) Personal Funds: Opportunities and Risks of Asset Segregation
The personal foundation is a relatively new instrument in Russian law. It offers a toolkit that seems to be performing main functions characteristic to an institution of trust at common law and Privatstiftungen in some continental countries (Germany, Austria, Liechtenstein, etc.). Therefore, functional approach is to be used in order to compare similarities and differences of different tools designed for protection of assets. The subject of this article is the study of the functions of personal foundations. Legal regime of personal foundation is compared with rules of contract law providing options for asset management. Regulations on personal foundation are analyzed in the light of the Federal Law № 287 of July 1, 2021. Efficiency of assets protection by means of personal foundation is also considered.
Keywords: personal foundation, asset shielding, trust, Treuhand
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Nikolay Kashnikov Surety’s Reсourse: Reimbursement, Subrogation (Part 2)
The second part of the article is devoted to the search of a surety`s recourse claim that would be optimal from the practical point of view and would comply with the Civil Code of the Russian Federation. An adequate solution offered in this part of the article is largely based on the historical and comparative legal research from its first part. According to the Civil Code, subrogation should remain a general consequence of the fulfillment of the obligation by a surety. At the same time, when suretyship was provided at the request of a debtor, it is necessary to assume that an agreement on the issuance of a suretyship has been concluded between the debtor and the surety. This agreement has much in common with intermediary agreements, therefore a surety that has provided security at the request of the debtor must be entitled not only to subrogation, but also to reimbursement for costs incurred. This approach somewhat improves the legal position of the surety, in particular, it may be important in case of expiration of the limitation period under a subrogation claim. By virtue of the principle of accessory the creditor’s security rights pass to a surety along with the rights under the secured obligation. For this reason, when enforcing creditor`s old claim, a surety is entitled to creditor’s security. The surety`s new claim for reimbursement, on the other hand, is not secured. Such an approach is necessary to protect other security providers, unless they agreed to secure surety`s claim for reimbursement as well. Other rules apply to a joint security and could apply to a security that is provided by the debtor himself. In the latter case, if suretyship is provided at the request of the debtor, creditor`s security rights must secure not only the old (main) claim but also the new reimbursement claim.
Keywords: suretyship, reсourse, reimbursement, subrogation
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Alexander Vereshchagin Liability for Libel and Defamation in Senate Practice in the 1870s and 1890s
This article introduces into the niceties of judicial interpretation in a number of high-profile cases related to the impingement upon the other’s honour and good name, in which the Ruling Senate laid foundations for the Russian case law on libel and defamation. The arguments of lawyers and judges of the time are still of interest to both criminal and civil law experts of today and can be used for developing the legislation and judicial practice as well as for the protection of personal non-property rights.
Keywords: libel, defamation, Ruling Senate, Criminal Cassation Department, V.D. Spasovich, A.F. Koni, P.A. Aleksandrov
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