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Июль 2023



Chief editor’s column



Interview of the issue


Topic of the issue

M.L. Galperin, T.A. Merebashvili State Capitalistic Property: Who Benefits?
The authors of the article evaluate the modern and historical aspects of the implementation of the right of State ownership, identify critical contradictions in the legal and actual content of the right to public property. Alternative legal models (decentralised, administrative, civilistic) are formulated, according to which legislation and law enforcement practice could develop further.
Keywords: state property, limited property rights, operational management, market economy
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A.O. Rybalov On the Future of the Right to Ownership
History shows that the concept of the right to ownership has proved to be more volatile than the concept of obligation. Dreams of a “final theory” of the right to ownership are not yet destined to come true — a change in ideas about this right is happening now, just before our eyes. The task of the science of private law in these conditions is not to turn a blind eye to the changes that are taking place, as being not in accordance with the prevailing doctrine, but, on the contrary, to notice these changes and begin to actively study them.
Keywords: right of ownership, security right of ownership, partial right of ownership, temporary right of ownership
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E.A. Sukhanov On the Right to Ownership as a Right in Rem and on Immovable Property
The article highlights the legal significance, correlation and development of the categories of the right to ownership, right in rem and immovable property in Russian civil law. The concept of immovable property in the current civil legislation is critically analysed, including the new regulation of the ownership of a building and structure built on other’s land, and the need to recognise the limited right in-rem of a private developer to a land plot being in public property. It justifies the unacceptability for domestic civil law of the legal structures of the trust and trust property, as well as the expansion of objects of real property rights by including therein nondocumentary securities, non-cash money and cryptocurrency.
Keywords: property law, trust management, building, land plot, property rights, immovable property, law of obligations, limited property rights, the right to use, the right to ownership, structure; private right
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A.A. Ivanov Digitalisation and Property. Fragment of a lecture course “Civil Law and Digitalisation”
This article considers relation between new objects of digital law and trаditional concepts of property law (iura in re), such as thing (res), proprietary rights (iura in re), property (ownership), possession, proprietary action (actio in rem). The majority of civil law scholars decline direct application of proprietary concepts to the digital objects because of the ideal, immaterial nature of the latter. But the lack of detailed property law regulation and contradictions within the Civil Code of Russia give an opportunity to extend the mentioned rules to digital objects. The main goal of this process is the creation of a special proprietary action which will make possible the recovery of digital objects by their proprietors.
Keywords: digitalisation, digital law, iura in re, property, possession
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V.A. Alexeev Immovable Property Complexes United by Common Property
The article is a detailed analysis of the legal regulation of property relations in special complexes of immovable things, including shared property. The basis of these complexes is compactly located negotiable immovables with owners. At the same time, the complex also includes immovable property, intended for servicing land plots, buildings and structures that form the basis of the complex. It is noted that the current legislation regulates relations regarding shared property in immovable property complexes of two types: gardening settlements and low-rise residential complexes. The common and the different in legal regime of shared property in these complexes are considered in detail. A distinction is made between shared property and common property. The author draws attention to the fact that there is a third group of immovable property complexes, in which relations regarding common property are not regulated by law at all. The practice of the Constitutional Court of the Russian Federation on this issue is subjected to a detailed critical analysis. Speaking in favour of the need to determine the legal regime of shared property in all immovable property complexes, the author considers it impossible to apply by analogy the law on the shared ownership in buildings for this purpose. As a way to solve the problem, it is proposed to regulate special transactions for the transfer of shared property into fractional ownership of all persons whose individual property is serviced by this property.
Keywords: immovable property, immovable property complex, gardening, low-rise residential complex, cottage settlements, shared property, common property, fractional ownership
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A.N. Vereshchagin The Kozhin Case, or the Question of the Right to Develop Mineral Resources as Interpreted by the Ruling Senate
The article investigates some hesitations shown by the supreme court of the Russian Empire as regards the nature of the right to extract mineral resources on other’s land
Keywords: mineral resources, right to ownership, Ruling Senate
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Legal Chronicle
The July Legal Chronicle presents the opinions of experts on the issues of legal assessment of the events of the armed rebellion on 24 June 2023, economic sanctions and ways to protect against them by means of corporate law, the positions of the Constitutional Court on compensation for moral damage that occurred before birth, and the procedure for observing the preemptive right when selling objects of shared ownership at auction, and on the taxation of the proceeds from the sale of the subject of pledge.
Keywords: private military company, rebellion, sanctions, moral damage, birth, preemptive right to purchase, income tax, pledge
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Press Release


Theory and practice

G.A. Esakov, V.I. Lebedinsky The Size of Damage in Larceny and Problems of Its Determination in Assessment Expertise
The article is devoted to one of neglected problems lying in a triangle between substantive criminal law, criminal procedure, and expertise. In substantive criminal law, it is necessary to establish the size of damage caused by larceny. In widely known cases, fraud may be established if a victim bought something for an exceptionally high price being deceived as to the fair market price. As it is required by case law, it is necessary to prove (criminal procedure aspect) the fair market price which was hidden from the victim. This market price should be established as an exact sum. But current methods of expertise do not allow to establish such exact sum. To the contrary, the fair market price may be proven only as an interval between the minimal and maximal prices at any given moment. Moreover, such approach to the fair market price is used in other legal regimes such as bankruptcy cases, tax liability, etc. The authors submit that the current case law should be changed in favour of more consistent with available expertise methods’ approach.
Keywords: damage, expertise, larceny, probable price, market price
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E.A. Chefranova Some Aspects of Improving the Taxation of Property And Income of Minors
The article is devoted to the study of the legal structure of guarantees of the rights of minors as a guarantee of property owners, which allows to identify a minor in tax relations as a taxpayer. It is established that the Russian legislation on taxes and fees does not put the fact of recognition of an individual as a tax payer depending on his age, property status and other criteria, but only on the presence of a minor object of taxation. On the basis of examples of judicial practice, the author identified gaps in the legislative regulation of relations in the field of taxes with the participation of minors.
Keywords: the regulatory function of taxation, taxpayer, subject of taxation, minor, guarantees of protection, protection of rights, responsibility
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V.V. Starzhenetskiy, Ya.A. Bagrova (Anti)Sanctions Clauses in International Commercial Contracts
The article provides analysis of sanctions clauses in international commercial contracts. Such clauses are intended to regulate actions of the parties in the event of sanctions and corresponding legal consequences. In comparison to classic force majeure clauses sanctions clauses have a number of advantages and may serve several interrelated purposes, including securing compliance by the parties with mandatory rules that impose restrictions on certain economic activity, adaptation of the contract to new circumstances in the event of economic sanctions, regulation of termination of the contract, as well as the distribution of risks and costs incurred by the parties in connection with this. The authors explore the structure of sanctions clauses and their provisions, which cause difficulties in practice, diverse approaches to determining the scope of sanctions clauses in the context of extraterritorial sanctions and blocking statutes, different threshold for sanctions risks that activate the clause, spectrum of options to secure adaptation of contract provisions depending on the specifics of the sanctions regimes, standards of due care and endeavours that are expected from parties in the context of sanctions, conditions for termination of contracts and possibilities for the distribution of costs incurred, including the payment of indemnity. The article also discusses validity of sanctions clauses, their relationship with overriding mandatory rules and norms preventing circumvention of the law, considers the risks of asymmetric and disparity provisions. Particular emphasis is placed on the relationship of sanctions clauses with other sections of international contracts, in particular applicable law and dispute resolution clauses.
Keywords: sanction clauses, economics sanctions, commercial contracts, overriding mandatory rules
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D.D. Filippova A Moratorium on the Initiation of Bankruptcy Cases and the Practice of Collecting Performance Fees
The article is devoted to the initiation of bankruptcy cases absolute moratorium consequences imposed by the Government of the Russian Federation in 2022. Attention is drawn to the enforcement proceedings problems related to the performance fee collection from debtors during moratorium period. In addition, public authorities and courts present different variants of the rules application for suspending enforcement proceedings during moratorium that depend on subjects range and their status. The author makes a conclusion about practice formation on the topic of the bankruptcy moratorium using as an autonomous basis for performance free relief. Meanwhile, performance free relief depends on two points: the subject meets moratorium conditions; the duty to execute the judicial act came after moratorium establishment. Finally, the article proposes a procedural mechanism of performance fee relief in case of its illegal collection.
Keywords: moratorium on initiation of bankruptcy cases, enforcement proceedings, performance fee
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A.A. Volos Principles of Contract Law in the Time of Digitalisation (On the Example of US Judicial Practice)
The article is devoted to the role of the principles of contract law in the cases arises from economic disputes in connection with the use of current digital technologies by the parties of the contract. Based on the analysis of different US court decisions, the author makes several scientific proposals. The most fundamental of them is that the digitalisation of society and the emergence of new relationships does not prevent the application of the principles of contract law. At the same time, the principles might be filled with special content and understanding. In such circumstances, the interpretation of the principles of contract law is essentially vital. There is a good example of the successful attempt of this type of interpretation. Having examined the interface and design of the corresponding online platform, the court of the USA determined the fact of consent to the terms of the user agreement according to the principle contractual freedom. It is a very useful approach for the Russian practice as well. Based on the principles of contract law, the US courts formulate the substantive part of the decision. Furthermore, they do creatively approach the establishment of a model for regulating emerging relations in the digital economy. The creatively approach of courts should not be useful in Russia according to the traditions of the continental system of law. However, it should be used by the legislative power. In order to establish an affective regulatory model, it is necessary to take into account not only economic feasibility and technical features. First of all, we have to rely on the principles of law. Unfortunately, it is not always obvious in Russia.
Keywords: principles of civil law, principles of contract law, US judicial practice, freedom of contract, balance of parties’ interests, digitalisation, cryptocurrency
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Foreign experience

I.A. Klepitskiy Causation in German Criminal Law
Criminal jurisprudence in Germany from the end of the 19th to the present day follows to the theory of equivalence of conditions (sine qua non) in understanding causation. Special rules have been developed (exceptions to the theory of equivalence) which make it possible to impute causation in the case when harm is caused by several persons (alternative causality, hypothetical causality, unintentional co-causation). In theory, the doctrine of the equivalence of conditions is supplemented by the doctrine of a «natural cause». The cause must be not only necessary for the result, but also sufficient in the context of the natural sciences. Unlike Russia and England, Germany distinguishes between causation and its «objective imputability» (beyond causation) as an independent element of actus reus. The question of the need to establish the «objective imputability» of causation in the commission of an intentional crime remains debatable; jurisprudence proceeds from the fact that causation based on sine qua non rule is sufficient to impute the result. When establishing the «objective imputability» of a causation, value judgments are used; the materiality of causation, the acceptability of risk, and the balance of interests must be proven. Unlike England, the ethical criterion (blameworthiness etc.) is not taken into account when imputing causation.
Keywords: criminal law, causation, elimination method, imputability, Germany, Russia
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D.V. Tarikanov The Conflict of Characterisation of Matrimonial Property and Maintenance Obligations in Private International Law
The famous conflict of characterisation in private international law which is its central topic has gained special relevance nowadays in European private international law. The reason is the entry into force of the Hague protocol of 2007 about the maintenance obligations and the Regulation of the European Union of 2016 about the matrimonial property. In both these documents was consciously left open the question about borderline between the liquidation of the regime of matrimonial property and the maintenance obligations in favour to the former spouse. As a result the court has received a certain margin of appreciation when assessing from the point of view of the conflict of laws the property claims of one of the spouses to the other. Taking into consideration that the liquidation of the regime of matrimonial property is submitted in the Pan-European conflict of laws to the immutable statute of matrimonial property which is fixed to the date of the celebration of the marriage and the maintenance obligations are submitted to the law of the actual habitual residence of the needy spouse, the old seemingly purely theoretical issue leads to practical consequences for the married couples with foreign element divorcing nowadays in the European Union.
Keywords: conflict of characterisation, private international law, matrimonial property, maintenance obligations, European Union, France, Germany
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