Chief editor’s column
Interview of the issue
Topic of the issue
K.A. Novikov About Declaration of Pledges in Notarial Registry The article discusses the points of domestic legislation which
concern the notarial recording of notifications of the pledge of
movable property in comparison with the main methods of state
registration of real estate rights. The author concludes that the
notarial compilation of information about the pledges of movables
cannot be the source of data as full, unambiguous and trustworthy
as the data contained in the State Register of real estate. However,
it would be incorrect to assume that the notarial recording of
notifications of the pledge of movable property is completely
useless: under particular conditions the notarial registry may turn
out to be accurate and thus to facilitate the timely alerting of the
persons concerned to the pledges of an asset.
Keywords:
ensuring fulfilment of obligations, pledge of movable property, declaration of pledge, recording of notifications of the pledge, notarial registry
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R.S. Bevzenko Alienation of Shares in a Limited Liability Company: Obligation to Transfer, Disposition, Registration The article describes the legal construction of the transaction on
the alienation of a share in the capital of a limited liability company.
The author explains the origins of the rule separating the obligation
to transfer the share in the capital and the actual transaction to
transfer the share. The article also describes the merits of this
approach to the understanding of transactions on the alienation of
shares.
Keywords:
share in the capital of limited liability company, sale and purchase agreement, transfer of right to share in the capital of limited liability company, principle of separation
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O.A. Polezhaev Features of the Digitalisation of Relations Associated with the Turnover of Real Estate Titles This article discusses the features of digitalisation of relations related
to the turnover of rights to real estate. It is proved that relations in
the sphere of real estate turnover expressed in digital form are based
on fundamentally different legal principles and requirements, and
should also take into account the emergence of additional legally
significant interests of their participants. Digitalisation of relations
related to the turnover of rights to immovable property should
provide a high degree of legal security and certainty of the desired
relationship.
Keywords:
digital asset, token, blockchain, real estate, registration of rights
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O.A. Zharkova Limits upon the Application of the Principle of the Unity of Fate of Land and Real Estate: Is the Civil Code in Solidarity with the Supreme Court? The article analyses the provisions of the Land Code of the Russian
Federation, the Federal Law “On Registration of Real Estate”,
the new Chapter 17.1 of the Civil Code of the Russian Federation
regarding the application of the principle of unity of the fate of
land and real estate to the premises during the transfer of rights
to it, as well as judicial practice that has developed by the time
this chapter of the Civil Code of the Russian Federation comes into
force. The author comes to the conclusion that after filling the legal
vacuum regarding the legal status of premises in a non-residential
building and the rights of owners of premises to common property
in the building, the Supreme Court of Russia will have to re-analyse
the limits of the application of this principle when transferring rights
to premises.
Keywords:
premises, part of the building, common property, transfer of rights, exceptions to the principle of unity, by virtue of the law, by virtue of the contract
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L.N. Naumova Refusals to Register a Mortgage In the article, the author gives the main reasons why the registering
authority refuses to register a mortgage or repays the mortgage
entry in the register without sufficient grounds, gives examples from
judicial practice and his own experience, examines law enforcement
trends and gives recommendations as to how to mitigate the risk of
refusal to register mortgage transactions.
Keywords:
mortgage, refusal of mortgage registration, securitisation, lending
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N.N. Melnikov Problems of State Management of the Land Fund and Registration of Rights to Objects of Land Relations This article examines the problems associated with the management
of the land fund. The author draws attention to the fact that
despite the active involvement in the sphere of economics and law
enforcement, certain types of objects that perform the functions of
land are not provided for in the legislation as objects of land relations.
The article analyses the issues of individualisation of objects of land
relations and their state registration, and draws attention to the fact that
state land management implies the availability of reliable information
about management objects, the source of which is the unified state
register of real estate. Based on the results of the study, the author
made proposals aimed at developing the current legislation.
Keywords:
state administration, unified state register of real estate, land categories, zones with special conditions for the use of territories, common use territory, red lines, multi-contour land plot, linear objects, public easement, temporary land plot
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A.V. Semenov Amazing Adventures of Registration in Intellectual Law The article questions the feasibility and adequacy of registration
procedure and registers in the area of intellectual rights and the
rights derived therefrom, taking into account informational (rather
than proprietary) nature of those rights. The author analyses the
competing public- and private- law concepts of intellectual rights,
title-generating and title-validating effects of entries in the private
and public registers of intellectual rights and comes to the conclusion
that the overlap of diverse and contradictory receptions of objects of
intellectual right and methods of their protection does not provide
the domestic institution of registration of those rights with public
reliability or logical consistency. The mandatory protectability
of registered objects of intellectual rights (similar to Torrens title
system) maintained by some binding judicial interpretation, along
with the infringer’s inability to even prove the right of prior use in
their respect, is however energetically refuted by courts on the
basis of the rules on latent succession, abuse or unfair competition,
and this effectively turns entries in the registers into rebuttable
presumptions. Therefore, a registrar, despite extremely complex
administrative procedures, may not be held anyhow responsible for
their reliability.
Keywords:
trademark, patent, commercial designation, trade name, appellation of origin of goods, copyright, intellectual rights, registration, registry, registration system, assignment of claims, damages, multiple protection, dual protection, liability
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V.V. Arkhipov, A.V. Gracheva, V.B. Naumov Identification in Artificial Intelligence and Robotics: A Comparative Study The article examines the identification of artificial intelligence and
robotic systems. The authors conducted an analysis of regulatory
and recommendatory acts of foreign countries, which demonstrates
the main trends of the use of identification in the framework of
legal regulation. Empirical material, based on which the study was
conducted, includes information on identification on the territory
of the USA, European Union, China, Japan, South Korea, UAE,
Singapore, Canada, UK, Germany. As a result, the authors identified
not only the main approaches, goals and objectives of the use of
identification of artificial intelligence and robots, but also structured
the legal principles derived from them, which are interconnected
with the branch of information law.
Keywords:
identification, comparative law, algorithmic decision-making systems, robotics and law, artificial intelligence, information law
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Discussion Board
A.A. Ivanov Rethinking The Relationship Between Parents And Children This article is devoted to the different aspects of influence which
social relations between parents and children, on the one hand,
and state policy, on the other, exert upon constructions of
family law. Current legislation, in the vein of Soviet tradition, is
based on the sole model of family but there really exist at least
4 models. This approach is explained mainly by the desire of
State to increase of birth rate, even though it may harm parentschildren
relations. The author offers to insert into the Family
Code all 4 models of family relations and give a free choice to
citizens. Also, the article contains proposal as to how introduce
a contract between spouses on the birth and raising children
which regulates all the relations — material and immaterial —
in this sphere.
Keywords:
legal models of family, relations between parents and children, contract on birth and raising children, Soviet approach to family
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V.A. Belov, O.Yu. Skvortsov Justice vs Freedom = Law: Antagonistic Contradiction and Its Solution (Part 1) The article represents the authors’ conception of the correlation
between the idea of justice and the idea of freedom as
a contradictory unity of two ideals that move social life. Analysing
the numerous manifestations of the antagonism of justice and
freedom, the authors come to the paradoxical conclusion that law is
born out of the conflict of freedom and justice. Leaving the actions
of its subjects free, the law protects their results only if they are
fair. The task of humanity is not to achieve this or that goal — to
become “completely free” or to comprehend “higher justice”: it may
approach both to a greater or lesser extent, but it cannot achieve
either. But this is not necessary — it is enough to move along this
path, because it already subordinates people’s lives to certain laws
and thereby optimises it.
In the first part of the article, the authors’ conception is built on
the meta-level, the level of general principles and fundamentals.
Keywords:
justice, freedom, law, contradiction of justice and freedom, competition of justice and freedom, private law, dualism of private law, absolute and relative legal forms, civil rights and freedoms, lex mercatoria
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Legal Chronicle In the February Legal Chronicle, Gennady Esakov comments on the December 2022 rulings of
the Constitutional Court of the Russian Federation on criminal law, which determine the approach
to calculating the amount of theft when committing fraudulent actions with wages paid from public
funds. Vladimir Rumak describes the main changes in laws that came into force in January 2023,
and highlights the legal facts at the level of draft laws, by-laws and law enforcement practice as
part of the deoffshorisation of the Russian economy. Vadim Borodkin comments on the Decree of
the President of the Russian Federation of 17 January 2023 No. 16 «On the temporary procedure
for decision-making by the bodies of some Russian business entities» and concludes that
its adoption solves certain issues of corporate governance of large enterprises, but does not
eliminate similar problems for small and middle businesses having foreign shareholders.
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Theory and practice
A.A. Brodsky Transactions with Shares in LLC: Disposal’s Price Notwithstanding the long period of its existence, the problem of
notarisation of transactions with shares in LLC has not been resolved
so far. Its essence lies primarily in the improper interpretation of
the current text of the law, in which the legislator directly indicated that it is the transaction aimed directly at the alienation of the share
that is subject to certification by notary, i.е. is dispositive one. The
author tries to comprehend the current state of the above problem,
analysng the inconsistencies in the position of the legislator, as
well as those practical difficulties that arise for the participants
in the property turnover, which often do not have the necessary
freedom in agreeing on contractual terms.
Keywords:
dispositive transactions, notarisation, option agreement, notary’s tariff, preliminary contracts
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E.F. Evseev Restriction of the Right of Mandatory Share in the Inheritance: In Search of a Balance of Rights and Legitimate Interests of Heirs The article is devoted to the analysis of the norms of paragraph 4 of
Art. 1149 of the Russian Civil Code, which allow courts to reduce
the mandatory share in the inheritance or even refuse to award it.
Practice shows that judges use this power extremely reluctantly and
most often they refuse to satisfy claims in such cases. In this regard,
the balance of rights and legitimate interests, which was implied in
these rules, is usually not achieved. The main reason for this is the
abstract nature of the wording of the conditions for the limitation/
exclusion of the right to a mandatory share, which dictates the urgent
need for their detailed critical analysis. Other questions that arise
here also require an answer: those about the possibility of limiting
the right to a mandatory share according to the requirements of heirs
at law, about the admissibility of limiting the right of a testamentary
refusal (legate) according to the rules of paragraph 4 of Art. 1149
of the Civil Code and some others. According to the author, when
interpreting and applying these rules, one should strictly adhere to
the position of ensuring the priority protection of the rights of heirs
by devise, otherwise the indicated balancing is simply unattainable,
and the existing unfavorable situation will only persist. Such an
approach is additionally driven by the tendency set by the Soviet and
continued by the Russian legislator to gradually diminish the right to
a mandatory share in the inheritance.
Keywords:
inheritance, heirs by will, heirs by law, mandatory share in the inheritance, testamentary refusal (legate)
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K.A. Ionkina, E.O. Matveev, L.S. Plekhanova About the Sources of Budget Inefficiency in Public Procurement (The Example of Bricks Purchasing) Improvement of public procurement system is one of the most
important government tasks in Russia and its importance increases
during periods of economic turbulence. The paper notes two
interrelated sources of budget inefficiency in Russian procurement
system due to the imperfection of the mechanisms which determine
the reserve price (or initial maximum contract price in Russian
procurement) as well as the design of procurement procedures. This
article highlights some of the problems and distorting incentives
associated with the determination of the reserve price for competitive
procedures using the example of bricks purchasing. This article also
proposes an approach which contributes to adjusting the existent
mechanisms and reduce reported negative effects.
Keywords:
public procurement, contract price, competition
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V.A. Rzhanovskiy Remote Electronic Voting: Historical Experience of Russia The article discusses the main stages of using Remote electronic
voting (hereinafter referred to as the Remote E-Voting) in
the Russian electoral process. The author proposed dividing
the historical development of Remote E-Voting in Russia into two
stages.
At the first stage we can note the conceptualization of approaches
to remote voting. Remote Е-voting as a system includes
a regulatory framework, organizational foundations, technical
means, guarantees of observance of voters’ rights. The balance of
these elements ensures the legitimacy of the popular will.
At the second stage, a growth in the development of technologies
can be stated. Separately, we can distinguish blockchain
technology, which occupies one of the key places in the software
and hardware complex of Remote E-voting. In 2019, Remote
E-Voting was like an experiment. In 2021, there were already
two independent information systems for Remote E-Voting at
the federal and regional levels.
However, the rapid introduction and expansion of the territory
for the use of Remote E-voting prevented the theoretical
understanding of the current events and the proper consolidation
of legal guarantees for a new form of voting. The author notes
about the problem of the legal status of election commissions
responsible for conducting Remote E-voting. The problem of
monitoring the functioning of the software and hardware complex
of Remote E-voting was and remains one of the most pressing
today. There are no characteristics established by the electoral
legislation, algorithms for the functioning of components of
electronic systems. The author proposes to eliminate this legal
vacuum.
Keywords:
Remote electronic voting, legal regulation, constitutional principles of elections, law, voting, technical development, history
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