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Август 2022




Aleksei Basharin The Absence of Planning Documentation as a Basis for Refusing to Issue a Land Development Plan
Case Comment on the Сassation Judgment of the Chamber for Administrative Disputes of the RF SC No. 43-КА19-31, 4 December 2019 The article analyses the Judgment of the Chamber for Administrative Disputes of the RF SC No. 43-КА19-31, 4 December 2019. The question is whether public authorities could refuse to issue a land development plan in the absence of planning documentation. The author argues that the absence of such documentation, in which red lines are established, should not entail a refusal to issue a land development plan. The author also draws attention to the need to improve existing legislation in this area in order to reduce the degree of discretion of public authorities.
Keywords: land development plan, planning documentation, red lines, planning element, road network
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Yuliy Tay, Sergey Budylin What is Written in Pen Is Corrected by the Court. Contract Rectification Case
Commentary on the Judgment of the Court of Appeal for England and Wales of 31 July 2019 in FSHC Group Holdings Ltd v. Glas Trust Corporation Ltd (Rev. 1) [2019] EWCA Civ. 1361 The article discusses an English Court of Appeal case that resolved one of the most puzzling issues in English contract law. The issue relates to the rules of application of the doctrine of rectification. Rectification is the correction of a written contract which contains an error, i. e. which does not correspond to the intentions of the parties when entering into it. In practice, the convoluted rule formulated by the court made it somewhat more difficult to prove the existence of such an error and also narrowed the possibilities of appealing against the decision of the court of first instance in such cases.
Keywords: English law, rectification, error, contract law, good faith
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Vadim Belov Classifications of Legal Facts: A High-Level Problem
Reviewing the classifications of legal facts known in our literature (according to the volitional criterion, legal effect, external form, etc.), the author comes to a conclusion that they are not sufficient to comprehensively characterize the numerous facts with which modern law associates legal consequences, and then offers a number of new classifications, based on criteria that are new for our science, and thereby to some extent filling and correcting the current taxonomical deficiency. The final classification of the facts which is based on spatial-temporal coordinates individualising them is especially interesting and unusual. The article is of both scientific and practical interest as it not only makes a contribution to the development of doctrine of juridical facts but draws attention to their characteristics which should be taken into account by the lawyers participating in the contractual and claimlitigation work.
Keywords: legal facts, classification, types of legal facts
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Ivan Alyamkin The Problem of Accessio and Recovery of an Attached Part of a Thing in Russian Jurisprudence
The article is devoted to the institute of increment and related controversial issues arising in the practice of Russian courts, primarily the problem of qualification of the attached part of the thing and the possibility of its separate reclamation. The article compares the regulation which exists in foreign jurisdictions with that developed in Russian jurisprudence, noting a difference in approach but at the same time drawing a conclusion that there are no significant practical consequences arising from this difference. The article suggests criteria of separability of the joined thing and the alternative ways of protection of the former proprietor of such a thing when its recovery is impossible.
Keywords: property law, thing, indivisible thing, composite thing, additions, vindicatio
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Vasiliy Laptev Settlement Agreement with the Only Condition on Mutual Waiver of the Claim: Legal Nature and Procedural Consequences
The possibility of ending a litigation by a settlement agreement which is subsequently approved by the court is an important right of participants in public relations on the path to the development of legal culture. This article analyses the legal nature of the settlement agreement which contains the only condition — of the mutual waiver of the claims brought by the parties. It provides an overview of the existing approaches of courts to the legal qualification of these transactions and their consequences, as well as the possibility of appealing against them. Possible ways of developing judicial practice on the issues under consideration are explored.
Keywords: settlement agreement, arbitrazh procedure, waiver of a claim
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Alexey Akuzhinov Overcompensation and Contravention of Public Policy as Grounds for Refusal of Enforcement of Arbitral Awards and Foreign Judgments in Russian and European Law
The article examines how Russian and a number of other European legal systems restrict the recognition and enforcement of arbitral awards and foreign super compensation awards with reference to their conflict with public policy. The author begins by setting the context of the study by conceptualising public policy as a secondary rule in H. L. A. Hart’s conception. The author shows that the public policy clause does not establish an explicit prescription, but merely opens up space for judicial law-making in the field of recognition and enforcement of foreign judgments and arbitral awards. These rules, the author insists, are formulated by judges on the basis of their own ethical considerations. The author then describes corrective justice as an ethical constraint on the application of supercompensatory remedies which the courts use as the foundation of the rules they create on the basis of the public policy clause. Using examples from the European and English legal systems, as well as international instruments, the reality of the inclusion of remedial justice in the notion of public policy is demonstrated. In the third part of the paper the author first reveals the content of public policy in Russian law and then describes the attitude of the Russian legal order to overcompensation remedies and analyses how Russian courts apply the public policy clause when deciding the issue of exequatur of overcompensation awards. The conclusion of the study summarises the findings.
Keywords: non-compensatory damages, exemplary damages, punitive damages, gain-based remedy, disgorgement of profits
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Tariel Sargsyan Loss of Objection by the Debtor: Review of the Courts’ Application of the New Wording of Article 386 of the Civil Code
This work is the result of the generalisation of arbitrazh practice related to the application of the new wording of art. 386 of the Civil Code of the Russian Federation. In the first part, the author notes the new rule is questionable. The legislator’s approach is evaluated and criticised from the standpoint of doctrinal, political and legal and comparative analysis. The author points out that it is inconsistent with the fundamental principle of the law of assignment concerning the prohibition of worsening of the debtor’s situation upon the assignment. The second part of the paper is devoted to the analysis of court practice. The analysis reveals a number of practical problems such as: the operation of the novelty in time; courts’ understanding of the logical scope of the ‘objection’ category for the purposes of application of the new wording of art. 386 of the Civil Code; etc.
Keywords: law of obligations, assignment
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