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Декабрь 2022




Raul Sayfullin The Concept of Universal Protection of Citizens’ Constitutional Right to Housing: A Systemic View of the Problem through the Prism of Bankruptcy
Case Comment to the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС22-7163, 22 August 2022 Based on the commented case, the author formulates the concept of universal protection of a right to a minimal essential housing for a citizen and his family members during bankruptcy proceedings. The key idea is the equality of social guarantees provided in insolvency both to the citizen himself and to any of his counterparties (including the developer). The proposed approach proceeds from the elasticity of the constitutional right to housing. Such perception of the problem enables to harmonize the protection of the right to a minimal housing expanding it not only to its natural form (i.e. real property) but also to money or other derivative assets (including investments in apartments on the primary and secondary markets).
Keywords: constitutional right to housing, bankruptcy, elasticity concept, sole housing
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lina Leonova Elasticity as a Characteristic of Property Rights
This article explores such a characteristic of property rights as elasticity. Traditionally, it is understood only as creation and distraction of rights in rem. It is market transfer of such rights that helps demonstrate the elasticity of the most complete right in rem — the right of ownership. The author shows that the notion of elasticity is broader and is not reduced only to the interaction of property with rights in rem — it underlies the possible expansion of ownership.
Keywords: ownership, limited rights in rem, real estate, US law
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Pavel Praviaschii Security Assignment (Part One)
The first part of the article deals with the assignment of a monetary claim as a statutory instrument of title based security. Its subjects, subject matter, secured obligation, as well as the structure of the binding relations of the parties are investigated. Based on the experience of foreign jurisdictions and the court practice of state arbitration courts, the security assignment is studied in the context of its statutory contractual form — the factoring agreement. Various types of the said agreement are analysed: similarities and differences of sale and security factoring, factoring with recourse and without recourse are revealed. Of interest is the recourse clause in the factoring agreement. Its practical benefit and legal nature are discussed separately. The first part of the article concludes with a comparison of recourse and security factoring, while their confusion frequently leads to incorrect conclusions in the court practice.
Keywords: title security, security assignment, factoring, factoring with recourse, security factoring
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Diana Grigorian The Influence of Law of Obligations on Property Law: The German Approach
The article provides an overview of the German doctrine in the sphere of the convergence of property law and law of obligations and discusses its possible application in the context of the Russian property law. The first part of the article deals with the revision of the list and content of the main features of property rights. It has been found that narrow interpretation of absoluteness does not allow to regard some rights as proprietary by their nature. The second part of the paper focuses on the impact of the law of obligations on property relations. It provides a detailed analysis of legal (subordinate) obligations and takes as an example certain types of limited property rights. Moreover, the article discusses the impact of this concept on the types of remedies available to the parties to an agreement on the establishment of a limited property right (with a focus on servitude law). It is concluded that the construction of legal obligations at the doctrinal level, due to their ability to be modified, could resolve a number of issues in the Russian property law. Furthermore, the article deals with the problem of applicability of rules relating to alteration and termination of a contract to an agreement on the establishment of a limited property right. The author argues that these rules can apply mutatis mutandis. Finally, the article studies the application of the law of obligations to a vindication claim. It is concluded that the consideration of a vindication legal relationship as an obligation opens the possibility of applying the law of obligations, provided the balance of interests established by the property law is taken into account. However, considering the Russian property law, there is no need to apply some provisions of the law of obligations, e.g. concerning the assignment of a vindication claim.
Keywords: property law, limited property rights, servitudes, legal obligations, real obligations, vindication claim
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Vyachelsav Grigoriev Involuntary Creditors: Should They Have a Place in Russian Law and Doctrine?
The author considers whether the concept of ‘involuntary creditor’ should be used in Russian law. He concludes that Russian legislation does not need to mention this group of creditors, nor does it need to have detailed rules of their status and rights. However, the fact that some creditors have received their claims without their will should be considered by lawmakers, judges, and scholars when they discuss and resolve issues relating to some groups of such creditors. The paper argues that the practice of giving priority to involuntary creditors over secured ones is wrong. It is feasible, however, to prioritise involuntary creditors over other types of unsecured creditors, provided that there are no other mechanisms to protect the former, first of all insurance.
Keywords: bankruptcy, register of creditors’ claims, involuntary creditor, charge, tort
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