Журнал ЗАКОН

Case Comment on the Judgments of the Chamber for Civil Disputes of the RF SC No. 18-КГ20-109-К4, 2 February 2021, No. 49-КГ21-14-К6, 25 May 2021, No. 59-КГ21-6-К9, 9 November 2021 Three judgments issued by the Supreme Court in 2021 were dedicated to the problem of competing claims that the bank may have in case of the debtor’s death. Those are the claim against the insurer for the insurance payment, and the claim against the debtor’s heirs for the repayment of the loan. The court has ruled that the bank is obliged to bring a claim against the insurer. This position has been motivated by a reference to the good faith principle. The article analyses a number of questions arising in connection with the judgments. It is shown that the bank’s obligation to claim against the insurer is not based on any statutory provision. It can, however, be deduced from the principle of good faith. However, violation of this principle by the bank should not always lead to the refusal of the bank’s claims against the debtors’ heirs for the recovery of the loan. Similarly, the risk of the insurer’s bankruptcy should not be automatically lifted on the bank, this should depend on a number of circumstances. The article suggests that the doctrine of linked contracts should be used in order to set out further details of mutual interference between the insurance contract and the loan agreement.

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Keywords: debtor’s life insurance, loan agreement, insurance contract, linked contracts

Scientific and Practical Commentary to the Ruling of the Plenum of the Supreme Court of the Russian Federation No. 2 ‘On Certain Issues Arising in Connection with the Application of the Antimonopoly Law’, 4 March 2021 The article continues the commentary on the legal positions stated in the Ruling of the Plenum of the Supreme Court of the Russian Federation No. 2 ‘On Certain Issues Arising in Connection with the Application of the Antimonopoly Law’, 4 March 2021. The second part covers the problems of application of antitrust prohibitions of anticompetitive agreements and concerted actions of business entities, prohibition of unfair competition, antitrust control over public authorities, antitrust control over tenders. The authors are the participants of the working group which prepared the draft of the ruling.

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Keywords: restrictive agreements, unfair competition, antimonopoly control

The article critically assesses the current trends in the development of court jurisprudence on the issue of good faith in the context of acquisitive prescription. The author questions the validity of the concept of seemingly lawful actions proposed by the courts as a standard of good faith. It is also argued that in disputes with public owners the importance of good faith as a prerequisite for the acquisition of the right of ownership has been reduced. Particular attention is paid to the problem of acquisitive prescription of things obtained from an unauthorised alienator. An important place is occupied by a discussion on the relationship between the institutions of ordinary and extended extraordinary limitation which does not require good faith. The internal inconsistency of the formulations used by the highest courts and the theoretical imperfection of the legal reasoning they build.

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Keywords: acquisitive limitation, adverse possession, good faith, ownership, judicial rulemaking

The article provides a translation of section 16 ‘Partnership’ of the German Civil Code, as amended with effect from 1 January 2024. The German Civil Code has been amended as part of an extensive reform initiated to bring partnership law in line with the prevailing perception of these legal structures. The translation is accompanied by an introduction which highlights the aims of the reform and the main changes.

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Keywords: German law, civil partnerships in Germany, general partnership, corporate law

Monitoring of Judicial Acts for 2016–2021 This study is a monitoring of judgments that apply art. 378.2 of the Tax Code of the Russian Federation, which regulate how Russian regional authorities form a list of real estate objects in order to levy tax on the property of organizations at cadastral value (‘the List’). The courts and the Ministry of Finance of the Russian Federation failed to develop a unified approach to the following issues: what is the legal nature and procedure of the formation of the List and how do regulations approving the List operate in time, i.e. in what cases do they apply to the current and previous tax periods. As part of the analysis of the enforcement of the norms of art. 378.2 of the Tax Code of the Russian Federation, a number of unresolved legislative gaps were identified, leading to the adoption by the courts of various approaches based on concepts that have not been specified properly in legislation. In particular, the authors note the following problems in the enforcement of art. 378.2 of the Tax Code of the Russian Federation: conflicting views of courts and the Ministry of Finance of the Russian Federation regarding the legal nature and operation in time of the normative act of a subject of the federation that approves the List; the need for regulatory certainty with regard to the ratio of premises and buildings as independent objects of taxation, which often have different characteristics (for example, the type of actual use), which does not allow them to be recognized as equally taxable real estate objects in terms of their economic profitability for their inclusion in a single taxation system according to cadastral value; problems of including a property in the List when placing buildings within the boundaries of several land plots with different types of permitted use; insufficient regulation at the regional level of the procedures and deadlines for conducting a survey and establishing the type of actual use of buildings, as well as the timing of the formation of the List, taking into account the beginning of a new tax period and the will of taxpayers.

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Keywords: corporate property tax, cadastral value, real estate