Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС20-22249, 6 April 2021 The paper provides analysis of the following issues raised in the commented judgment: identification of a legal transaction as the basis of a transformation action, the need to obtain consent of the OOO participants in respect of a transfer of participatory interest in OOO to a spouse of one of the existing participants and the consequences of a failure to obtain such consent.

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Keywords: corporate law, transformation right, ООО transformation action, right of pre-emption, right of first refusal

Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 309-ЭС21-11163, 18 October 2021 The article analyses the problem of determining the tax consequences of artificial splitting of a business taking into account the amounts of taxes actually paid. The author critically assesses the approach of the Supreme Court of the Russian Federation which allows the refund of these amounts to individual participants of a business splitting scheme, as well as the algorithm proposed by the Supreme Court for calculating the limitation period. According to the author, the amounts of taxes paid should be taken into account in determining the overall consequences of tax abuse.

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Keywords: tax reconstruction, artificial business splitting, unjustified tax benefit, refund of overpaid tax

One of the main reasons of the low efficiency of bankruptcy procedures in Russia is the late information disclosure about the debtor’s financial problems. The author suggests changing the approach to a determination of the moment when the persons controlling the debtor have to report about the debtor’s crisis. Having the signs of insolvency is the necessary condition to file a bankruptcy petition in a court. The performance (non-performance) of this obligation has an influence on the scope of the powers of the persons controlling the debtor during the rehabilitation procedure and the scope of their responsibility if their actions don’t correspond to the established standard. This approach will help identify the crisis at an early stage and encourage using the pre-trial methods to overcome the financial difficulties.

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Keywords: bankruptcy, bankruptcy petition, insolvency, objective bankruptcy

The article considers questions of legal qualification of the six-month period for a claim for the conclusion of the basic contract (para. 1, p. 5, art. 429 of the Civil Code). It could be a preclusive term which means that after its expiration the right ceases to exist. Alternatively, it could be a limitation period. In the latter case there is a chance under Russian law that the claimant could succeed in a court. Given the absence of a clear definition of the legal nature of this term in the legislation and the Supreme Court explanations, the author identifies different approaches to its interpretation in the practice of courts of cassation. As the result of analysis of foreign experience and evaluation of various options to determine the nature of the six-month period for recourse to the court from the point of view of the nature of the parties to the preliminary contract, the principle of freedom of contract and political and legal considerations, the author proposes to qualify it as a preclusive one.

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Keywords: preliminary agreement, preclusive term, limitation period

Reverse hijacking of domain names is understood differently in Russian and foreign legal practice. Russian practice associates this activity with the deliberately unfair registration of a trademark in respect of goods and services used under a well-known domain name, for the purposes of subsequent initiation of legal proceedings that will lead to the transfer of rights to the domain name to the right holder of the trademark. Since the legislation considers a domain name as a way of using a trademark subject to the conditions of similarity and uniformity, even with early registration of the name, its use may be recognized as infringement of exclusive rights. American practice and the practice of the Unified Domain Dispute Resolution Policy and UDRP put a broader meaning into this concept: ‘reverse hijacking’ is any deliberately unfair activity aimed at obtaining a domain name used in good faith. Consideration of domain disputes under the UDRP rules, as well as American legislation, involves a study of good faith, but not infringement of exclusive rights, which allows significantly expanding the boundaries of the disputes under consideration and minimizing formalism in the application of law. Taking into account the different approaches to domain disputes in Russia and the practices studied, there is a difference in the understanding of ‘reverse hijacking’. Although the study of good faith in resolving domain disputes in Russia is rather secondary, since the primary one is the establishment of an infringement of exclusive rights, a narrow approach to the concept of ‘reverse hijacking’ seems incorrect. Firstly, even when considering the unfair practice of registering trademarks ‘for’ domain names, the practice of acquiring rights to existing trademarks for subsequent initiation of proceedings cannot be excluded. In both cases, the date of registration of domain names will be early in comparison with trademarks. The identification of dishonesty in this case will depend on the presence of two factors — knowledge of the domain name before the registration of the mark and the intention to harm the administrator (to get a disputed domain name, depriving the administrator of the rights to it). Secondly, given the contradictory Russian practice that ignores the requirements of uniformity in the study of infringement of exclusive rights, it seems important to understand the term ‘reverse hijacking’ in a broad sense — as any unfair actions aimed at obtaining a domain name used in good faith, made by the right holder of a similar designation, even a previously registered domain name.

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Keywords: domain name, reverse hijacking, domain disputes, exclusive right, bad faith

This article attempts to revise the main postulates of the classical theory of pledge, based on the authors’ proposed theory of abstract property rights. Starting from the definition of pledge as a legal regime of other abstract property rights, whose distinctive feature is only a security function, the authors propose a Paretoeffective theory of pledge, which will ensure the expansion of effective private law regulation on institutions which in Russia have traditionally been regulated by public law, such as pledge in criminal proceedings. On the basis of the proposed concept of an abstract subject of property law, the admissibility of collateral for ownerless property is substantiated, and the question of sliding collateral seniority is resolved. On the basis of the theory of abstract subject of pledge, the article criticizes the continental system’s prevailing theory defining the essence of pledge, which the authors call the value theory, as preventing pledge of things with negative market value, future things, as well as pledge to secure obligations having no value expression. The authors give the newest theory of abstract secured obligation, which allows to satisfy the needs of civil circulation for securing of future claims and for substitution of one secured claim for another. It is demonstrated that the latest theories of abstract obligation proposed by other authors generate insoluble theoretical contradictions and also have a drawback, which is absent in the theory proposed by the authors, consisting in the practical difficulty of application by courts of other concepts of abstract obligation.

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Keywords: property law, pledge, the law of obligations, criminal procedure

The article analyses the practice of application of Art. 1080 of the Civil Code of the Russian Federation on the joint liability of several jointly acting tortfeasors. The author concludes that the general doctrine of passive solidarity has not been sufficiently developed in domestic jurisprudence. Courts often resist the possibility of holding several persons jointly liable where the grounds for their liability are different (for example, not holding contractual and tortfeasor jointly liable) or in situations where several persons, acting independently of one another, contribute to the common damage by their actions. In the absence of a direct statutory reference to the emergence of solidarity in such circumstances, and due to an overly literal understanding of ‘jointness’ required by Article 1080 of the Civil Code of the Russian Federation, the courts often render decisions unfair to the injured party. The author also highlights the lack of elaboration of the doctrine of joint and several liability in cases of complex causation (including alternative and cumulative) and the transfer of the risk of uncertainty of causation and procedural passivity to the defendants who acted unlawfully. Lack of development in this area often prevents a solution that is fair to creditor and debtor alike.

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Keywords: the law of obligations, joint and several liability, tort, causation