Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 309-ЭС21-18136, 7 February 2022 In a judgment issued on February 7, 2022 the Supreme Court of Russia reiterated that, in order to resolve budgetary disputes, it is especially important to understand the legal nature of specific budget expenditures. In particular, the subsidies to producers of goods, works and services could be divided into those provided as support and those provided as repayment of public law debt. This division suggests different answers to the questions of when the right to receive a subsidy arises and what is the scope of this right. Accordingly, the question of whether or not a normative legal act amending the procedure for granting a subsidy has retroactive effect also depends on which subsidy is in question. Among other things, the judgment allows us to explore to which extent court’s findings related to the validity of a legislative act are binding on other courts. The article deals with all these issues in detail.

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Keywords: budgetary law, budget expenditures, subsidies, the retroactive effect of law, recognition of an act as invalid

Since last year, there has been a renewed debate on the reform of golden shares, which enable the state to intervene in the management of privatised joint-stock companies. The changes proposed by the legislator do not address any of the problems associated with this type of shares, the main one being the overly broad scope of the use of gold shares. The article also attempts to discuss how the state intervention should be regulated and what should be its limits, including in the light of international experience.

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Keywords: corporate law, golden share, joint stock company, privatisation

Author analyses Judgment of the Constitutional Court of the Russian Federation No. 20-П of 21 May 2021 and concludes that this judgment is aimed at clarifying of the basic of evidence law: the risk of lack of evidence by court shall be burdened on the party, which obtains such evidence. It is assumed in the article that such approach should be based on part 4 of article 66 of the Arbitration Procedure Code of Russian Federation.

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Keywords: subsidiary liability, discovery of evidence, burden of proof

The article is dedicated to multi-party litigation in England and Wales. The research begins with the review of historical prerequisites of formation of representative actions and group actions. The author comes to conclusion, that it is history of origin that influenced on the differences of the abovementioned actions. Futher the author analyses stage of initiation of group action and prerequisites of permissibility of group action. The author raises the question of formation of the group. The author fixes that at the current moment England and Wales suffers transitional situation, making indecisive step in favor of opt-out principle. Especial attention is paid by the author to procedural mechanics of test claim, which in the judgement of the author and some other researchers is far from perfection. The author also touches consolidation, which is provided by legislation of England and Wales. The author touches the theme of interim court decisions and res judicata in group litigation context. After that the author analyses peculiarities of collective proceeding, which is provided by competitive legislation. The author also touches the problem of participation of foreigners in multi-party litigation in England and Wales. In the end of the article, it is presented Civil Procedure Rules, 1998. Part 19. III. Group Litigation, which were translated into Russian by the author.

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Keywords: civil litigation, action, group action, court costs, competition regulation, England and Wales

E-commerce and the digitalisation of business are giving intellectual property law an ever-greater role. Website regulation, databases, and especially computer software are driving the sector’s growth. This article is a compilation of what we consider to be important problems in computer software regulation. The problems may stem from legislation being insufficiently detailed, not corresponding to legal practice or coming into conflict with the technological factors behind the creation and operation of computer software. In this article we consider 1) the legal definition of a computer software and its source code; 2) legal protection of computer software; 3) regulation of software developed by employees. We will also focus on the source code as the main component of a computer software. This paper does not claim to explore absolutely all problematic issues related to computer software: in particular, we do not consider the issues raised by unprotected elements in a computer program, alienation of computer programs, protection of audiovisual images generated by a program and indirect plagiarism of source code. We also do not consider the issues that have arisen in connection with the problems of computer software “import substitution” (legal regime of Russian-origin software, compulsory use of foreign-origin software, etc.)

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Keywords: computer programme, open-source software, copyright, HTML-code, HTML, proprietary software

The article discusses the very urgent problem for the Russian law enforcement system of the war of all against all in bankruptcy and proposes some ways to change the situation for the better. By analogy with the concept of “corporate power” of the participants of the corporation the concept of “bankruptcy power” of the participants in the bankruptcy process is introduced. The discussion is focused on the subject of abuse of bankruptcy power based on the example of a case where a third party gratuitously settled the claim of one of the creditors and the latter categorically refused to accept the money, wanting to stay on the list of creditors at any cost. The essence of the authors’ proposals is to introduce evidentiary presumptions unfavourable to the persons whose actions are obviously absurd from the point of view of commercial logic and to expand the parties’ opportunities of reclaiming evidence from the procedural opponents.

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Keywords: bankruptcy, bankruptcy creditor, third party discharge of a claim, abuse of right, disclosure of evidence

This is the second part of the article; the first one was published in the previous issue of the journal. This part deals with the freedom of unilateral transactions and the possibility of conditional transactions complicated by a suspensive or cancellation clause. The author establishes that unilateral transactions are not subject to the principle of freedom of contract expressed in article 421 of the Civil Code of the Russian Federation. As a general rule, a unilateral transaction is possible only in cases stipulated by law or a contract. The performance of unilateral transactions not provided for by law is only possible if the unilateral transaction could be classified as non-intervening. Regarding the permissibility of the inclusion of conditions in a unilateral transaction, the author concludes that a condition may be contained in unilateral non-intervening transactions. Unilateral interventional transactions can only contain conditions that do not violate the rights and legally protected interests of their addressee. Some unilateral deals are not allowed to include conditionality as conditionality contradicts their legal nature (essence).

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Keywords: transaction, unilateral transaction, conditional transaction

The article deals with the theory of personified bankruptcy estate, according to which the obligatory subject of legal relations in insolvency is the bankruptcy estate (bankruptcy debtor), i.e. the property mass of the original debtor (legal entity, individual) separated from it and provided with legal capacity to implement the goals and objectives of the insolvency (bankruptcy capacity). With the help of the theory of personified bankruptcy mass theoretical and practical problems are solved, for example, bankruptcy of the estate of a wound-up legal entity, bankruptcy of the estate of a deceased person, bankruptcy of a non-corporate formation, transnational bankruptcy.

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Keywords: bankruptcy, bankruptcy estate, bankruptcy capacity