ARCHIVE FOR 2023 RUSSIAN
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Апрель 2023
CONTENT
Evgeniy Gavrilov Protecting the Reputation of Organisations in the Housing and Utilities Sector Case Comment to the Judgment of the Chamber for Civil Disputes of the SC RF
No. 78-КГ22-44-К3, 8 November 2022
The commented judgment expresses several conclusions. First, it says that in cases involving the protection of
business reputation it is necessary to draw a line between compensation and damages. Secondly, it prohibits
reclassification of a claim. Thirdly, it explains what should be proved in cases relating to reputational damage.
This judgment could impact the judicial practice in business reputation cases. Thus, it may influence the
wording of the claim for compensation for reputational damage and the proof of its amount. Plaintiffs will likely
avoid references to moral damage. The author supports certain conclusions of the court (that compensation
and damages are legally different; that legal entities cannot suffer moral damage in the form of psychological
harm; that business reputation of a legal entity should be protected against untrue defamatory information
disseminated in social networking websites). However, certain provisions of the judgment are criticised, namely
that the compensation mechanism is not available for the protection of business reputation of legal entities; that
it is impossible to reclassify damages as compensation for harm. In addition, the author notes that the judgment
does not clarify the criteria for calculating the amount of pecuniary compensation for reputational damage and
choice of appropriate tribunal for cases on the protection of business reputation of organizations in the field of
housing and utilities.
Keywords:
goodwill, compensation, reputational damage, moral damage
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Pavel Praviaschii Leasing Agreement as a Method of Title Security (Part 2) The second part of the article deals in detail with the legal regime of leasing, i.e. the rules governing the relationship
stemming from the leasing contract. The author assesses the problems typical of security in rem (e.g. recovery
of surplus and collection of the balance of debt, transfer of ownership to the debtor (termination of collateral),
assignment of a secured claim, including partial assignment, by the lessor’s creditors, the lessor’s refusal to
exercise the rights of ownership and disposal of the leased asset, bankruptcy of the lessor and the lessee) and
compares their solutions proposed by the rules on leasing and the rules on loan and pledge. On the basis of
the comparison, the author criticises the well-known claim that a leasing contract should be reclassified as a
collateralised loan. The leasing legal regime, born in the arbitration courtroom, has not yet taken shape, and its
development may vary. The author concludes by offering his own prediction. The rules on leasing will be exempt
from the influence of two radical ideas — its rental nature and its re-characterisation as a secured loan. Alongside
the credit theory of leasing, which triumphs in jurisprudence, there will be an increasing influence of the idea of
security ownership by the lessor.
Keywords:
title security, buy-out lease, security deposit, ownership, bankruptcy
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Vasilii Zakharov Procedural Aspects of Solidarity as Exemplified by the Recovery of Damages from Bankruptcy Administrators The doctrine of passive solidarity (an option of holding several persons or entities jointly liable when grounds
for their liability differ) has been widely presented in recent academic publications. Despite that, the courts
still sometimes decline to impose such liability. Possible unjust enrichment of the creditor has been cited as
one of the reasons. The author disagrees with this position, and states that civil procedure rules allow debtors
to make a number of objections aimed to protect their rights (for example, to ask enforcement proceedings’ discontinuation). Therefore, a joint liability should not be denied based on mere possibility of creditor’s unjust
enrichment. A model case of seeking damages from bankruptcy administrator is provided as an example — while
conditions of receiving the damages from administrator themselves, the insurance indemnity, and the payout from
the compensation fund of a self-regulatory organization differ, it is demonstrated that by means of enforcement
proceedings’ discontinuation and procedural succession all parties’ rights can be thoroughly ensured.
Keywords:
bankruptcy, trustee in bankruptcy, insurance, recourse claim, enforcement of judgment
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Victor Domshenko Certification in a Class Action The procedure of certification of a group of persons within the framework of class action proceedings is essentially
regulated by one norm that imposes the obligation to hold a preliminary court session, in which the court verifies
whether the group of claimants comply with legal requirements to such a group. However, a number of group
certification issues that courts inevitably face when dealing with class actions do not have a solution in law.
The author considered the issues of fixing the requisites of a group of persons in a judicial act completing
the certification, the depth of the court’s verification of the essence of the requirements of group members and the
actual circumstances for the purposes of certification at all stages of the trial. The author used the comparative
legal method of research, referring to the legal regulation and jurisprudence of the US.
Keywords:
arbitrazh procedure, class action, trial, preliminary hearing, evidence
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Vladislav Osipov Right of the Seller to Demand Payment from the Buyer The article presents the results of the analysis of arbitration practice of application of para. 4 of art. 486, para. 4
of art. 514 and para. 2 of art. 515 of the Civil Code of Russia. These rules allow the seller to demand payment
from the buyer in the scenario of the buyer’s evasion of acceptance of the goods. This review deals with situations
connected with demands for payment (1) when the seller is the first to perform his obligation under the contract,
(2) when the parties have not defined the order of performance, (3) when a condition for advance payment has
been agreed. The author has also examined what courts consider as the buyer’s avoidance of the acceptance
of goods and what other conditions may be necessary to satisfy the claim for payment. Special attention is paid
to whether the relevant law enforcement practice has changed since the new edition of para. 3 of art. 328 of the
Civil Code in force from 2015.
Keywords:
law of obligations, sale-purchase, payment for goods, advance payment, sinallagma
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Anna Inozemtseva The Problem of the Autonomous Meaning of the Institution of Circumvention of Law (Part 2) In the second part of the article the notion of ‘circumvention of law’ is compared with the notions of ‘abuse
of right’, ‘principle of good faith’, ‘expansive objective-teleological interpretation of law’, ‘analogy of statute’,
‘analogy of law’, and ‘judicial lawmaking’. The author argues that circumvention of law is not an independent
legal institution. When a court refers to the provision of art. 10 of the Civil Code of the Russian Federation
(which prohibits actions in circumvention of law with an unlawful purpose) to justify its decision this essentially
means that the decision is based on an expansive interpretation of the law, the application of the legal norm
by analogy or judicial lawmaking. This leads to a number of further conclusions — in particular, that a mere
reference to a rule prohibiting acts that circumvent the law cannot in itself justify a court decision, which should
detail the arguments for applying the rule to a case not formally covered by it.
Keywords:
circumvention of law, abuse of right, principle of good faith, interpretation, analogy, judicial lawmaking
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