Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Administrative Disputes of the SC RF No. 71-КАД21-10-К3, 20 October 2021 This case raises questions about the legal nature of enforcement proceedings, its participants, the balance of rights of the debtor, plaintiff and third parties, the ratio of substantive and procedural, private and public law at the enforcement stage, about the extent of the legal force of a judgment and its reflection in the process of its execution. The article suggests that judicial control over judgment enforcement should be strengthened. A good example is the control over insolvency procedure.

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Keywords: enforcement proceedings, legal force of judgment, unauthorised construction, right to dwelling

This article is scientific commentary to the new Chapter 17.1 of the Civil Code of Russia about constructed real property objects (human made real estates). Commentary was made in critical style with focus on defects of new legal rules. These defects are connected with controversial judicial practice on real property. The practice mentioned can be explained by constantly changing approaches, political and legal, to the law of property.

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Keywords: real estates, law of property, shared property, common areas in buildings, land registration

The article discusses some problems related to the seniority of pledges: its concept and practical properties; the transactions aimed at altering the seniority of the pledge; the static or changing queue of the pledges; the methods of creating or making a preliminary reservation of the free places within the queue of multiple pledges, etc. The conclusions drawn by the author are used to explain the corresponding rules of the pledge legislation of Russia. The author finds them unsatisfactory: they are too general and do not allow for any operations with the ranks of the charges entered in the Land Register.

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Keywords: pledge, mortgage, repledge, rank of a pledge

This paper deduces the notion and analyses the main criteria of situations of alternative causation in tort law, taking into account accumulated historical and comparative law experience. It examines the most widespread groups of circumstances being sources of this phenomenon in Russian and foreign case law. It is proved that the situation of alternative causation arises when a limited group of several alternative causes of harm is established under a required standard of proof, among which there are one or more actual causes of harm, but it is impossible to establish (select) the actual cause of harm from a group of alternative causes in accordance with the standard of proof mandatory in this procedural form for a court in an adversarial process, while all other elements of tort liability in relation to alternative tortfeasors are established. It is demonstrated how a situation of alternative causation arises in connection with such life circumstances as insufficient knowledge of a phenomenon in science and the objective limits of human cognition, the passage of time after harm, the human factor and material difficulties, provided that the occurrence of a situation of alternative causation can be fully or partially attributed to alternative tortfeasors due to certain circumstances in their sphere of responsibility.

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Keywords: tort, causation, alternative causation

The article analyses the problems which arise when a guarantor’s debt burden exceeds that of the principal debtor (i.e. deviates from the principle of equality of their liability). The generalization which has been made shows a lack of uniformity on this issue in the domestic judicial practice. In economic turnover such situations most often arise in the context of the principal debtor’s insolvency. At the same time, the paper notes that the impact of this factor may be differentiated depending on the type of surety (joint and several, subsidiary or proprietary). The paper gives an insight into the problem of accessibility to the personal objections of the debtor (objections in personam) to the surety, including those arising from his bankruptcy. From this point of view, it is argued that the identity of debt load of the guarantor and the debtor could be established through the equal terms of their obligations (relative model), rather than through the final amounts of debt of each of them (absolute model).

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Keywords: suretyship, bankruptcy, identity of debt load, debtor’s personal objections (objections in personam)

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 This is the last part of 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 third part of the commentary describes in detail how state arbitrazh (commercial) courts decide issues concerning the limits of powers of competition authorities in the disputed relations; the subject matter and grounds of judicial antitrust disputes; proportionality of challenged acts, actions and decisions; specific features of the action proceedings and other key procedural issues concerning the arbitration courts’ consideration of various categories of cases arising from the application of the antitrust legislation. The authors are the participants of the working group for the preparation of the draft of the Ruling.

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Keywords: antimonopoly legislation, antimonopoly authority, action proceedings, challenging of non-normative legal acts, decisions, actions (inaction) of antimonopoly authorities