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Июль 2023




Nataliya Kozlova, Sofya Filippova On the Right of a Married Person to Participate in a Limited Liability ompany
Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС22-26611, 6 April 2023 The article comments on the legal positions expressed by the Supreme Court of the Russian Federation when considering a dispute over the fate of a surviving spouse’s share in the share capital. The authors explain legal regime of marital ownership through the right of common joint ownership of spouses and submit that spouses constitute a fictitious single entity and therefore both are a single participant in a limited liability company and exercise a single corporate right. In view of this, the authors treat cautiously the approach of the Supreme Court that allows the surviving spouse to be deprived of participation rights. The authors suggest that it is not possible to regulate legal regime of a spouse share in bylaws of a limited liability company.
Keywords: corporate law, limited liability company, share capital, joint ownership, marital property
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Stanislav Smirnov Separation of the Marital Share in LLC: Property or Inheritance?
Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС22-26611, 6 April 2023 The article is devoted to the situation of posthumous separation of the marital part from a share in a limited liability company. The focus of the study is a recent ruling by the Supreme Court, that considers that both division of a share and its inheritance have the same consequences for the corporation and its members. The article analyses the legal nature of the division and its correlation with inheritance, it examines whether an analogy between these two institutions is possible. The author considers the strengths and weaknesses of the approach of the Supreme Court, including on the basis of previous judicial practice, and offers an alternative argument for resolving the dispute.
Keywords: corporate law, limited liability company, share capital, joint ownership, marital property
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Yury Fogelson Indemnification by a Person Who Has Insured Liability
The article examines in detail the structure of relations arising from the infliction of damage by a person who has insured his liability. It is shown that the existing court practice allows to use voluntary tort liability insurance only as a security measure, and the changes proposed in the Concept of development of provisions of Chapter 48 of the Civil Code of the Russian Federation will not bring anything in this part. At the same time, compulsory tort liability insurance and credit life insurance (similar in its compulsory structure) use insurance as a protective mechanism, which is more in line with the purpose of insurance. A way to make voluntary liability insurance a protective mechanism is offered, as well.
Keywords: law of obligations, insurance, liability insurance, compulsory insurance, tort (delict)
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Dmitry Arnautov Forms of the Creditor’s Involvement in the Debtor’s Corporate Governance
This article addresses the creditor-in-control legal doctrine and its theoretical grounds as well as the reasons for occurrence of creditors’ interest to establish control over a financially distressed debtor. Author examines different instruments of the Russian contract law, such as pledge of corporate rights (para. 3), ‘quasi-shareholders agreement’ (para. 4) and covenants (para. 5). Results of this analysis reflect the practice of applying these instruments of the Russian contract law to establish a control over a debtor.
Keywords: corporate law, creditor-in-control, pledge of corporate rights, shareholders agreement, corporate finance
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Sergey Budylin Money: Economic Function and Legal Nature
The article attempts to construct a legal theory of money. Strange as it may seem, there is no clear definition of money in Russian law: there is no consensus among legal scholars even on the question of whether non-cash funds in a bank account or only cash should be considered money. Meanwhile, from an economic point of view, both cash and non-cash are money: both are used as a means of payment, and the general level of prices is determined by their total amount in circulation. In order to bring legal concepts closer to economic ones, and to eliminate terminological inconsistencies, it is suggested to consider money as ideal (i.e. imaginary) objects of civil law, whose belonging to participants in circulation can be fixed by various technological methods. Historically, the first method of such fixation was possession of specific tangible objects (cash), while today bank entries (non-cash) are the main method. In some countries, records in customer accounts directly with the central bank (central bank digital money) are also used for this purpose; other methods (blockchain records, etc.) may emerge as technology develops. With such a definition, the parallel between money and crypto-assets, which are also ideal objects of civil law, whose ownership is fixed by some special technological way to the participants of the turnover, becomes evident. Corresponding amendments to the Civil Code are proposed.
Keywords: money, cash, non-cash money, central bank digital money, digital ruble, crypto-assets
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Natalia Kantor Application of the Business Judgment Rule in Disputes over Civil Liability of Insolvency Officers
The article analyses civil liability of bankruptcy managers (trustees in bankruptcy) for their business decisions that they take while performing duties under bankruptcy legislation. The author considers in detail the court practice which re-evaluates business judgments made by bankruptcy managers based on their economic feasibility. This approach indicates that the courts ignore the protection of business judgment rule existing in corporate law. The author criticises this approach, considering the fact that most of the actions of the bankruptcy manager do not require either approval by the creditors’ meeting (committee) or approval of the court, and therefore the evaluation of the results of business judgments occurs only ex post.
Keywords: bankruptcy, bankruptcy manager, business judgment rule, civil law liability
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Daniil Boreysho Protection of Visibility in Assignment of Claims (Part 1)
The first part of this paper analyses which interests of the debtor must be protected by law, how different legal systems address the conflict between legal reality and legal visibility and how the doctrine of legal visibility achieves the goal of protecting the debtor. This part also describes in general terms the scope of debtor protection in Russia.
Keywords: law of obligations, cession, assignment, visibility doctrine, notice of assignment
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