ARCHIVE FOR 2022 RUSSIAN
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Июнь 2022
CONTENT
Chief editor’s column
Interview of the issue
Topic of the issue
G.V. Tsepov Is a Business Company a Civil Law Community? The Concept of Communicator The article examines the legal nature of a business company.
The concepts of the contractual community of participants,
the personalized property and the nexus of contracts are consistently
studied and rejected. It is permissible to consider a business company
as a civil law community only if such a community is not reduced
to a group of its participants who are in decentralized legal relations
with each other. It is proposed to consider a business company as
having a dualistic legal nature. On the one hand, it is recognised
by the state as a legal entity, having its own will, interests, and
separate property (statutory nature). On the other hand, a business
company is organised by means of centralised corporate relations
having features of civil law contracts and in the interests and goals
of the business company separate common interests and goals of
its participants are reflected (contractual nature). Thus, a business
company performs the functions of a communicator.
Keywords:
business company, civil law community, corporate relations, membership relation
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S.Yu. Filippova Plurality of Persons and Civil Society: Similarities and Differences The author studies the reasons that lead to the unification of subjects
of civil law into groups of persons, the peculiarities of the formation of
will in various groups of persons. The author compares the plurality
of persons in a legal relationship and the civil society. The author
considers the civil law community as a way to limit the principle of
participation in civil turnover by his will and in his interest, the author
justifies the reasons for using a special method of forming will in
groups of persons in such cases. In the article, the author defines
a common and coinciding expression of will, where the first allows
making a decision only with the full consent of all participants in
the group of persons, and the second assumes the possibility of
making a decision by majority vote.
Keywords:
civil society, plurality of persons, voting, decision of meetings, transaction, will
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A.A. Goreva Assignment of Rights Under a Simple Partnership Agreement: Search For the Optimal Model The article discusses the main peculiarities of assignment of rights
under a simple partnership agreement. Due to the lack of direct
regulation of the assignment of rights under a simple partnership
agreement, a position has been formed in judicial practice,
according to which the assignment of rights is possible only with
the consent of all the partners. The author criticizes this position
and finds arguments against it in German law, the history of legal
regulation a simple partnership agreement in Russia and the current
legislation. The analysis allows us to find the optimal model of
assignment of rights under a simple partnership agreement.
Keywords:
a simple partnership agreement, an assignment, German law, civil partnership in Germany, an investment partnership agreement
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I.Z. Aiusheeva Virtual Communities: Problems of Determining the Civil Legal Status In the context of digitalisation, people unite in a digital
environment, forming virtual communities. At present, it is
important to determine their legal status in order to specify
the rights and obligations of participants in a virtual community,
the procedure for the formation and management of such
a community, as well as the possibility of making decisions of
legal significance by meetings. The conducted research allows
us to conclude that interaction within the virtual community is
carried out on the basis of agreements that are not considered
discretely, but form a network agreement: agreements of each
user with the owner of the platform and agreements between
users. At the same time, users, on the basis of an agreement
on joint activities, can form such virtual communities that can
be recognised as civil legal, capable, in cases provided for by
the agreement, to make decisions of meetings that have legal
consequences for all members of the community.
Keywords:
civil legal community, digitalisation, joint venture agreement, virtual community
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Discussion Board
M.B. Zhuzhzhalov On the Problem of Hidden Dividends in Contemporary Russian Law in the Context of Protecting Minority Shareholders’ Rights The article covers a specific aspect of the disguised dividends
payment issue when the resolution on denial of such payments
could be considered as sham or transactions securing disguised
distribution of profits could be treated as resolutions of majority
shareholder on distribution of profits. Notwithstanding noticeable
contributions by Russian scholars to examinations of the said issue,
this aspect was neglected, while being most sensitive in terms of
the interests of minority shareholders. The author concludes that
the courts could show more persistency in protecting these interests
and should struggle with bad faith practices without assistance of
lawmaker which typically is not often and not efficient.
Keywords:
distribution of profits, sham transactions, liability of director, abuse of rights
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Press Release
Theory and practice
A.V. Efimov Legal Framework of the Balance of Interests in Corporate Groups The article examines the correlation between the interests
of corporate groups and legal entities that are members
of such groups. The main problem of the study is related
to the establishment of a balance of interests in situations
when the interests of a particular legal entity are sacrificed to
the general interests of a corporate group. Using the examples
of challenging corporate decisions, challenging transactions,
recovering losses from the controlling person and management,
the author shows the inconsistency and inflexibility of legal
regulation, as well as the lack of carefully designed approaches to
taking into account the group context of the economic activities
of legal entities. In addition, the author examines the main legal
models for providing the balance of interests in corporate groups
(English, German, French). As a result, proposals are put forward
to form a flexible model of the balance of interests for Russia,
which is based on the idea of the need to take into account
the social and economic characteristics of legal entities and
corporate groups.
Keywords:
balance of interests, corporate group, group of companies, challenging corporate decisions, intra-group transactions, recovery of losses, director’s liability
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V.A. Belov Online Intermediary Platforms: Discussed Approaches and the Domestic System of Legal Regulation This article provides an analysis of topical issues related to
the individual and legal regulation of the activities of online
intermediary platforms (owners of information aggregators of goods
and services), the author’s translation of some of the most interesting
provisions of the draft Directive of the European Union “On Online
Intermediary Platforms”, as well as in addition to the translation is
provided with author’s comments aimed at analysing the proposed
provisions and comparing them with the norms in the national
legislation of the Russian Federation, as well as with existing judicial
practice.
Keywords:
online intermediary platform, marketplace, information intermediary, aggregator owner, digital intermediary, consumer, seller, consumer attention
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V.V. Aleynikova Current Issues of the Court Practice in the Sphere of Assisted Reproductive Technologies This article is devoted to the questions that arise when judges
apply the legislation in the sphere of assisted reproductive
technologies. The complex nature the relations, in which private
and public principles are combined in a special way, as well as moral and ethical components, create a specific area for
regulation. The current regulation which is built on the detailing
principle (the provisions of law are detailed in bylaws) can be
characterised as fragmentary and inconsistent. Based on court’s
decisions over the past five years the author tries to unify
them. So the most typical assisted reproductive technologies
disputes are related to inappropriate service quality, paternity
examination, registration actions in Civil Registry offices,
the issuance of maternity capital. During the trial judges often
follow the broad interpretation of the current legislation which
in some cases leads to the conflicts of law provisions (contra
legem) and in others — creates new rules. Author concludes
that it is necessary to amend the current legislation and work
out a unified conceptual framework for legal regulation in this
area.
Keywords:
assisted reproductive technologies, paternity examination, surrogacy, child birth registration
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Foreign experience
M.I. Penzin Countervailing Consideration in English Law: The Concept, Content and Relationship with Related Legal Institutions in Foreign and Russian Law This paper considers the concept of consideration and its necessity
for the validity of contract in English law. The counter consideration
is not the same as a motive or reason for a promise as it should
appear to come from the promisee and has a certain legal meaning.
Counter-gratification can either take the form of a promise or an
action arising from a promise. One of the research objectives is to
identify the requirements that must be met in order for a contract
to be valid and legally enforceable. Consideration is given, inter
alia, to the correlation between consideration and consideration
in a contract. The paper compares counterclaims to competing
doctrines such as causa as well as to counteroffsetting in Russian
law. It is stated that an important purpose of counterclaims is to
ensure private autonomy of parties, participation of each party not
only in creating, but also in determining the content of contractual
legal relations.
Keywords:
consideration, contract, executory consideration, executed consideration, past consideration, promisee, promisor, contract under seal, promissory estoppel, causa
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V.A. Kultaev Correlation Between Fault and Unlawfulness in Torts of Public Authorities Author made a research on domestic and foreign approaches to
the definition of fault and unlawfulness in torts committed by public
bodies and civil servants. Such legal systems as continental legal
system and the system of common law tend to intertwining of guilt
and unlawfulness and to supplantion of fault by unlawfulness. This
trend is intended to provide plaintiffs in public tort claims with
the complete and achievable recovery of violated rights. This work
will help to find a scientific rationale when bringing public authorities
and officials to tort liability.
Keywords:
Guilt and wrongfulness in torts, continental and Anglo-Saxon legal system, objectification of guilt, doctrinal reasoning
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P.A. Skoblikov Responsibility for Professional Criminal Activity Under the Criminal Code of the RSFSR of 1922 The article presents an analysis of the provisions of the Criminal Code of
the RSFSR of 1922 aimed at combating professional crime. The main and
qualified elements of crimes containing such signs as engaging in crimes
of a certain type as a profession and committing a crime in the form of
fishing are analysed. The rules of sentencing professional criminals and
the application of other social protection measures to them, in addition to
punishment, are considered. The prescriptions of the criminal law are set out in combination with the characteristics of the criminogenic situation of
the early 20s of the twentieth century, the views of domestic lawyers of that
time on the problems of criminal professionalism, the author’s assessment
of the bases of legislative decisions, their gaps and shortcomings. In
conclusion, the article shows the ideas of countering professional crime
in subsequent Russian criminal codes.
Keywords:
Criminal Code of the RSFSR of 1922, professional criminal, commission of a crime in the form of fishing, occupation with crimes as a profession, infrastructure of professional crime, recidivism, the main corpus delicti, qualified corpus delicti
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