Журнал ЗАКОН

Constitutional principles within the process of insolvency (bankruptcy) and the problems of practical implementation thereof in the course of personal bankruptcy are considered. As part of the consideration of the principle of the welfare state, the problem of excluding the subsistence minimum for a dependent child from the bankruptcy estate and the problem of selling the only housing of the debtor are considered. A characteristic is given of the formed judicial practice of the Constitutional Court on the issue of limiting the executive immunity of the only housing, as well as the practice of the Supreme Court, which established the principles for the provision of replacing housing.

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Keywords: insolvency, personal bankruptcy, constitutional principles, the only housing

The article states that the existing universal succession mechanism is nowhere near as convenient as it is thought within the national civil law tradition. It is proposed that the distribution of the estate would have fewer obstacles if the estate were conceptualised as a legal entity that ought to be liquidated. Authors demonstrate how this machinery of inheritance could operate.

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Keywords: universal succession, estate, administration of estate, future and contingent obligations

The article deals with pros and cons concerning applicability of the rules of subordination of the claims of affiliated persons in case of personal insolvency. The author reaches the conclusion that the rules of true subordination in case of personal insolvency cannot apply because of the fundamental ideology underlying the subordination rules in Russian law.

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Keywords: insolvency; subordination of the claims of creditors; personal insolvency; true subordination; false subordination

The article analyses the peculiarities of bankruptcy of citizens. There are general and special insolvency procedures that are introduced over the property of citizens. The conclusion is made about the identity of regulation of consumer and commercial insolvency of citizens, in connection with which the rehabilitation of the entrepreneur’s enterprises is difficult. Particular attention is paid to the insolvency procedure of the mass of succession, as well as the insolvency procedure of the common property of spouses, qualified as special procedures, to which the rules on ordinary procedures are applied in a subsidiary manner. It is concluded that the heir, by virtue of a legal fiction, fulfils the rights and obligations of the debtor in the insolvency procedure in the event of the death of the testator. The emergence of the insolvency procedure of the common property of the spouses is noted, since it is introduced in judicial practice simultaneously regarding several separate property masses. The comparison of legal regulation and the objectives of procedures concerning separate masses of succession in Russia and Germany is made.

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Keywords: insolvency (bankruptcy) procedure, debtor, common property of spouses, insolvency procedure of the hereditary mass

The article is devoted to the analysis of approaches to the use of offset as a way to terminate counter homogeneous monetary obligations between the debtor and his creditors in the period preceding bankruptcy and during the bankruptcy period. A classification of the system of prohibitions on the use of set-off in cases of bankruptcy of organisations and citizens was made. Models of prohibition are distinguished: unconditional prohibition; conditional ban; temporary ban. A comparative characteristic of the permission and prohibitions of unilateral counter monetary obligations of debtors and their creditors in cases of bankruptcy and citizens has been made. The conclusion is made about the erroneous distribution of the rules for applying the set-off formulated on the example of the bankruptcy of organisations, in relation to the set-off in cases of bankruptcy of citizens. The author substantiates the need for the national legal order in the formation of a separate concept of applying the set-off of homogeneous counterclaims in cases of bankruptcy of citizens in relation to situations where there is one or more persons in the register of creditors’ claims. The defectiveness of the application of a total prohibition of set-off after the court has initiated a case on the bankruptcy of a citizen is substantiated.

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Keywords: insolvency (bankruptcy), bankruptcy of organisations, bankruptcy of citizens, set-off in bankruptcy cases, prohibition of set-off, admissibility of set-off, restructuring of a citizen’s debts, sale of a citizen’s property

“Bankruptcy tourism” is an informal name for the practice of manipulating territorial or international jurisdiction in bankruptcy proceedings. A debtor often wishes to remove their bankruptcy proceedings to a region for some reasons inconvenient for the creditors and convenient for the debtor. For instance, the new region may be situated thousands kilometers from the first one, making it difficult for the creditors to participate in the proceedings. Such a cunning debtor is ironically termed a “bankruptcy tourist”. Bankruptcy tourism may exist within one country or at the international level. Lawmakers and courts of different countries take certain measures to prevent bankruptcy tourism. In particular, such measures are being taken by Russia’s Supreme Court.

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Keywords: Bankruptcy, bankruptcy tourism, international jurisdiction, territorial jurisdiction, place of residence, abuse of law

The article briefly highlights the results of seven years of consumer bankruptcy, analyses the problem of classifying citizens as honest and bona fide debtors. The author considers the practice of refusing to discharge debts due to a significant amount of claims against the debtor or a consistent increase in debt to creditors in the absence of the required level of income, as an independent basis for refusing to discharge debts and comes to the conclusion that the balanced approach proposed by the Supreme Court helps prevent indiscriminate failures. The author examines and highlights key points of the precedent ruling of the Supreme Court on the issues of malicious evasion of repayment of debts.

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Keywords: discharge of debt, malicious evasion of repayment, fresh start, honest debtor, nondischargeable debts, fraud

The article examines the Russian Supreme Court’s legal interpretations stated in the recent Review of Judicial Practice on the pledgees’ claims in the cases of the pledgers’ bankruptcy. The Review covers a number of complicated problems arising, for instance, when a pledge has been given but not properly formalised, or when the various tools of securing the performance of obligations compete with each other. The questions touch upon both practice and doctrine.

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Keywords: pledger, pledgee, bankruptcy, pledge from seizure of property, statutory pledge, retention, means of securing the performance of obligations, individual bankruptcy, item of poor quality, purchase and sale on credit

The article brings to attention the unduly forgotten case law of the Ruling Senate related to the powers of an insolvent author to dispose of his copyright. In two Potapenko cases of 1913 the Senate attempted to draw a line between various elements of copyright.

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Keywords: copyright, insolvency, bankruptcy of a natural person, Ruling Senate

The contractual nature of international arbitration and the possibility of the disputing parties to regulate to a large extent the procedure for consideration of disputes have created conditions for the development and successful introduction into practice of a significant number of recommendatory documents, systematically summarizing advanced practices for resolving certain groups of issues arising within the arbitration process. Such documents, playing, as a rule, the role of auxiliary, optional sources of international arbitration and defined as rules, principles, protocols, recommendations, guidelines, and collectively referred to by the term: “soft law” and recently also “para-regulatory texts” (PRT), are prepared under the auspices of authoritative professional associations such as the International Law Association (ILA), the International Bar Association (IBA), the International Council for Commercial Arbitration (ICCA), etc., as well as leading centres of international arbitration. The article considers the relevant aspects of application of such documents in modern international arbitration, including various ways of referring to them in the course of proceedings, taking into account the statutory hierarchy of normative sources and other means of regulation of the arbitral procedure. The authors analyses the goals of developing soft procedural law documents: the need for national legislation and arbitration rules which would be predictable and consistent with common practices of gap-filling, and the intention to educate the professionals about the best practices.

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Keywords: international arbitration, arbitration court, the regulation of arbitration proceedings, procedural soft law, recommendatory documents, para-regulatory texts “PRTs”, the hierarchy of the procedural tools of arbitration

The article analyses the problems of Part 1.3 of Art. 140 of the Code of Criminal Procedure of the Russian Federation, according to which it is possible to initiate criminal cases for tax crimes only on the basis of tax audit materials. In addition to the exclusive «tax» reason, the author also examines other examples in the current legislation which also create obstacles to the initiation of criminal cases. As a result, it is concluded that there is a particular phenomenon in the current legislation — institutional obstacles to initiating a criminal case. Based on the presented analysis, the author poses problems that are generated by the presence of such obstacles in the legislation.

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Keywords: ground for criminal prosecution, tax crime, legal certainty, criminal liability, collateral estoppel

The article analyses legal constructs, in which the owner exercises the right in the interests of another person (beneficiary). The author aims to describe the beneficiary’s position and to fit these constructs into unitary property model, typical for Russian legal system, which would exclusively endow the owner with the most complete power over the property. The numerus clausus approach, which represents the reverse side of the unitary ownership model appear to be controversial and is disputed. There is another proposed approach of explaining the beneficiary’s position by providing the beneficiary with some unnamed property right. It is specified, however, that such an approach is possible only if the numerus apertus of property rights is recognised.

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Keywords: proprietary right, unitary model of ownership, beneficial ownership, numerus clausus, numerus apertus

Machine learning technologies are at the heart of artificial intelligence applications, ranging from the use in the military to household assistants. The result of machine learning as a technical process is the creation of models that are able to produce a forecast with some degree of accuracy, on the basis of which people make decisions, and artificial intelligence systems perform actions. The machine learning model is a new phenomenon with an indefinite legal regime. However, regarding the creation and use of models contracts are concluded and economic benefits are created during machine learning: all this requires legal qualification. Since inductive development methods are used to create models, machine learning has an atypical structure compared to a conventional computer programme, which makes it difficult to determine the legal regime of the model and the legal consequences of its creation and operational application. The Article presents the piecemeal legal structuring of Machine Learning as a process and a Model as its result, defines the legal nature of the Model at all stages of its life cycle. In this Article the legal significance of Machine Learning Methods for the legal qualification is analyzed, the nature of Training Data external to the model is justified, such a benefit derived from Training Data as the Parameters (Weight Coefficients) of the Model is indicated. The definition of the legal nature of the Machine Learning Model and its elements are the basis for further legal analysis of the legal relations developing regarding the creation and use of Artificial Intelligence Applications.

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Keywords: Artificial Intelligence, Machine Learning, legal nature of the Model ML, legal protection of the Machine Learning Model, Machine Learning Algorithms, parameters (weights) of the model, Training Data