ARCHIVE FOR 2023 RUSSIAN
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Март 2023
CONTENT
Chief editor’s column
Interview of the issue
Topic of the issue
B.M. Gongalo Housing law: Yesterday, Today, Tomorrow The article deals with the formation and development of the Russian
housing law. Its characteristics in various periods of history (Soviet,
post-Soviet and today) are given, and certain proposals aimed at
the improvement of the legal regulation of housing are made.
Keywords:
housing relations, housing law, housing law codification
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N.Yu. Papushina Need in Housing: The View of Judicial Practice The article touches upon the issue of determining the need in
housing as a legal fact that forms the basis of the legal relationship
of renting residential premises of the state and municipal housing
stock. Based on the analysis of judicial practice, the author comes
to the conclusion that the need in housing is understood as a legal
fact — a condition that includes two objectively existing criteria:
the safety of living (habitability) and the presence/absence of
residential premises in indefinite use. At the same time, the article
defends the view that the housing need is elastic, since it can
either accumulate or decrease over time.
Keywords:
social hiring, housing need, judicial practice, office premises, housing stock, habitability
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N.B. Kosareva Housing Guarantees in the Implementation of the Residential Areas Redevelopment Projects The article is devoted to the issues of legislative regulation of housing
provision for citizens resettled from their residential premises in
the territories of redevelopment. The main problems are analysed
and proposals are made to increase housing guarantees for citizens
relocated from dilapidated and unsettled homes in order to increase
their interest in participating in such projects.
Keywords:
redevelopment of territories, housing, housing guarantees, emergency apartment buildings, dilapidated or without utilities infrastructure apartment buildings, dilapidated and without utilities infrastructure low-density residential buildings
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S.Yu. Chashkova Residential Premises as an Object of Transactions Regulating Property Relations of Spouses in the Light of Changes in Housing Legislation In this article, the author has attempted to analyse the content of
the prohibition introduced in the Housing Code of the Russian
Federation on the commission of actions entailing the occurrence
of shares in the right to residential premises as common property of
spouses in the amount of less than six square meters.
As a result, the author came to the conclusion that this prohibition
is uncertain and cannot be applied in accordance with its literal
meaning.
Keywords:
residential premises as common property of spouses; marriage contract, agreement on the division of common property of spouses; joint will, inheritance contract; prohibition on the occurrence of shares in the right to residential premises of spouses
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D.A. Formakidov Typology of Decisions of Meetings of Participants in Housing Relations The article considers the currently existing types of meetings of
participants in housing relations. The legal nature and correlation between the decisions of the general meetings of the owners of
the premises of an apartment building, shareholders of housing
cooperatives, members of the homeowners’ association are
determined. The legal uncertainty in the considered issues is
revealed and ways to improve the current legislation are proposed.
In particular, it is concluded that the substitution of general meetings
of owners by general meetings of shareholders or members of
the homeowners’ association is impossible. It contradicts the very
nature of these meetings.
Keywords:
resolution of the meeting, homeowners’ association, housing cooperative
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S.I. Suslovа Commercial Renting Living Accommodation That Are in Public Ownership The article estimates the legitimacy of the practice of transferring
residential premises that are publicly owned under a Commercial
Renting Living Accommodation. It is demonstrated that
the sufficiently convincing arguments expressed against
the application of this agreement are not supported by judicial
practice. The confusion of contractual structures in the provision
of residential premises from public ownership is illustrated, which
is caused by the poor quality of regional and local regulation.
The conclusion is made about the inadmissibility of using
exclusively the tools of civil legislation when providing residential
premises in public ownership under a commercial renting living
accommodation. The ideas on which the federal legislative
regulation in the field of provision of residential premises belonging
to a public owner should be based are formulated.
Keywords:
residential premises, lease agreement, commercial renting living accommodation, commercial use housing stock
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M.V. Bando The Limits of the Right of Ownership of Residential Premises and the Possibility of Concluding Contracts for Short-Term Rent of Residential Premises The article analyses certain restrictions on the right of ownership
of residential premises and the validity of their enshrining in
the current law. As for the prohibition on the placement of
industrial productions its “absorption” by the mentioned general
prohibition is argued. The prohibition on missionary activity in
residential premises is characterised as a prohibition without
any legal content related to housing, which is confirmed by
the analysis of law enforcement practice. The prohibition on
the accommodation of hotels and the prohibition on the provision
of hotel services using residential premises are distingushed.
The hotel accommodation prohibition is more definite, in relation
to it the clear enough criteria in judicial practice are formulated.
In this work these criteria are presented in a generalised form. At
the same time this prohibition did not require a separate fixation
in the law, because it is covered by the general prohibition on
the use of residential premises not for their intended purpose,
which is confirmed by the analysis of judicial practice that existed
before the inclusion of this prohibition in the text of the Housing
Code of the Russian Federation. As for the prohibition on the use
of premises for the provision of hotel services the lack of legal
certainty of the content of this prohibition is stated. Generalisation
of the criteria for distinguishing hotel services from short-term
rent of residential premises, developed by judicial practice, has shown that these criteria either do not relate to the problem,
and indicate other violations of housing rights, or are extremely
controversial.
Keywords:
ownership of residential premises; use of residential premises for their intended purpose; ban on the location of industrial plants; ban on missionary activities in residential premises
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Discussion Board
Overview of the “Social Networks and Civil Law” Round Table On 20 January 2023, the Department of Private Law of the Faculty of Law of the National Research
University Higher School of Economics held a round table on the topic “Social networks and civil
law”. The round table was moderated by A.A. Ivanov, Academic Supervisor of the HSE Faculty
of Law, tenured professor, retired Chairman of the Supreme Arbitrazh Court of the Russian
Federation, and organised by T.S. Yatsenko, Head of the Department of Private Law, Doctor of
Law, Professor, and M.A. Volchansky, Deputy Head of the Department of Private Law, Candidate
of Legal Sciences. Leading Russian experts on civil law took part in the discussion. Abstracts of
their reports are presented in this review.
Keywords:
social network, cyberbullying, right to an account, intellectual property, database, collective rights
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V.A. Belov, O.Yu. Skvortsov Justice vs Freedom = Law: Antagonistic Contradiction and Its Solution (Part 2) The article represents the author’s 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. When analysing numerous
manifestations of the antagonism between 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 this (second) part, the authors show how their concept affects
the key patterns and conclusions of private law in general and civil
law in particular.
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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R.M. Yankovskiy Is Artificial Intelligence Capable of Writing a Law Journal Article? In this article, we explore the potential of artificial intelligence (AI),
in particular, ChatGPT based in GPT 4.0 model, to create articles in
the field of legal studies. We analyze the pros and cons of employing
AI in jurisprudence, specifically focusing on its capacity to adapt
to intricate legal terminology, evolving legislation, and nuanced
argumentation. The primary emphasis is placed on potential
inaccuracies that may emerge in AI-generated text, as well as the
underlying causes and subsequent ramifications. Furthermore, we
discuss the copyright implications for works created via AI and
propose possible solutions. In conclusion, we outline the current
limitations and future prospects for leveraging AI in both legal
practice and scholarly research. A substantial portion of the article is
entirely generated by AI.
Keywords:
artificial intelligence, jurisprudence, copyright, text generation, legal terminology, legal changes, legal arguments, AI errors, context, authorship
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Legal Chronicle In the March chronicle, its authors comment on some notable legal events in the field of
international law (suspension of Russia’s participation in Treaty on Measures for the Further
Reduction and Limitation of Strategic Offensive Arms) and tax law (the introduction of a one-time
tax on excess income for a number of companies), important changes in the law on education, and
also analyse how the law can help cope with everyday life problems caused by current changes
in the economic situation.
Keywords:
Treaty on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, tax on excess income, income tax, legal education, unlimited plan, escrow account, insurance
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Press Release
Theory and practice
A.A. Esmanskiy Claims Subordination of Debtor Controlling Persons Based on Crisis Financing: Political and Legal Goals And Current Problems The article is devoted to such a basis for the subordination of the claims
of a controlling person as financing a debtor in a state of financial
distress. After analysing the main approaches to substantiating
the need for subordination of claims based on crisis financing, the
author comes to conclusion that the main political and legal goal of
subordination is to compensate for the insufficiency of the company’s
capital and, as a result, to increase the level of satisfaction of the
claims of external creditors or increase chances of approval of a
restructuring plan. Considering the criteria for a financial distress used
in judicial practice, the author concludes that courts do not have a
unified algorithm for assessing the debtor’s financial state at the time
of financing and proposes to establish a presumption of a financial
distress if the market value of the debtor’s net assets is lower than the
registered capital or is negative.
Keywords:
subordination of shareholder’s claims, crisis financing, insiders, persons in control of the debtor, financial distress
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E.S. Krestyantseva Disputes on Determining the Amount of Rent for the Use of a State Land Plot as a Consequence of Concluding a Lease Agreement by an Unauthorised Public Subject The article deals with the consequences of concluding a lease
agreement for a state-owned land plot by an unauthorised person,
including the issue of the agreement validity, establishing the correct
amount of rent, recalculating rent for the previous period of use,
and the relationship between public entities regarding the paid
rent. In this situation, civil law relations are complicated by a public
element. Considering this, the analysis is given taking into account
the principles for determining the rent for state-owned land plots,
as well as reductions of payment and other regulations that restricts
the right of the parties to independently determine the amount of
rent. Some procedural aspects and difficulties of settlement of such
disputes are also considered.
Keywords:
rent, land plot, state property, rental payments
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Foreign experience
V.S. Novikov Trusts under Civil Law Jurisdictions: Current Legislative Framework, Legal Doctrine and Case Law As of today, some civil law jurisdictions have adopted domestic trust
legislation acknowledging a trust as a form of ownership. Several civil
law jurisdictions have recognised foreign trusts in recent years as
a regulatory and tax matter, in order to find and document the offshore
assets of their taxpayers and other jurisdictions have adopted
the Hague Trust Convention on the Law Applicable to Trusts and on Their Recognition 1985, simplifying the construction and recognition
of foreign trusts, because the Convention imports specific conflict
of law provisions into the law of the countries that have adopted it.
In the other civil law jurisdictions that have not adopted the Trust
Convention, the election of law made by the settlor will generally be
recognised if their laws authorise an election. Notwithstanding the fact
that an election of a foreign law or a foreign forum is made in the trust
deed, the court is going to turn to its domestic laws and among other
things to its own conflict of law provisions to determine the validity
of the election made. The construction and recognition of foreign
trusts will rely uniquely on case law in a jurisdiction where there is
no conflict of law provisions for trusts. In all civil law jurisdictions
transfers in trust are generally void to the extent they deprive an heir
of her forced share or a spouse of her share in a community property,
if the trust violates rule against perpetuities or any other mandatory
provision of domestic legislation.
In light of the aforementioned, the aim of the article is to show that
сivil law jurisdictions search for new ways to afford the benefit of
trusts in a variety of settings.
Keywords:
fiduciary property, trust, limited rights in rem, matrimonial property regime, succession, law of contracts, taxation of foreign trusts, bankruptcy, asset securitization, private international law
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