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Август 2023




Elena Ostanina Protection of the Unborn and Newborn in a Bankruptcy Case
Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС23-1000, 8 June 2023 The commented judgment addresses the issue of the admissibility of compensation for moral harm to an individual who, at the time of the infliction of harm, had already been conceived but not born. The Chamber for Economic Disputes, developing the logic of the well-known ruling of the Constitutional Court of the Russian Federation of 2 March 2023, No. 7-П, allowed the inclusion of this claim in the bankruptcy register. The question is whether this ruling means the recognition of partial or fragmentary legal capacity of nasciturus? The article proposes the conclusion that the subject of protection is a citizen who has already been born, not a foetus, which does not yet possess legal personality; nevertheless, if it follows from the circumstances that the protection of the future rights of the child cannot be postponed until its birth, measures aimed at preventing the violation of future rights may be taken before the birth of the child.
Keywords: tort, nasciturus, compensation for moral harm, custody in favour of the future child
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Aleksandr Guna Rent during Pandemic
Translation of the Decision of the German Federal Court of Justice of 12 January 2022 XII ZR 8/21 with a Commentary This is a publication of a translation of a judgment of the German Federal Court of Justice (BGH), which resolves an almost model lease dispute during a pandemic. Due to the typicality of the circumstances in question and the application of institutions well known to Russian law, this decision will be very useful for the domestic private law community. The text of the decision is followed by a brief commentary by the author of the translation with a discussion of a number of theoretical issues on the topic of lease in general, as well as in the context of force majeure.
Keywords: lease, COVID-19, German law, jurisprudence
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Sergey Budylin ‘Thumbs up’ — Acceptance or Insult? Emoji, Semiotics and Law
The article discusses the legal significance of emoji, i.e. small standardised images included directly into the text — for example, the text of a messenger message or a post on a social networking site — which have now become very popular. A number of court cases from various jurisdictions dealing with emoji are reviewed, and the positions of some foreign legal scholars on the issue are discussed. As is clear from all of this, emoji can have significant legal significance in criminal law, tort law, contract law and other areas. The principles for interpreting texts with emoji are generally the same as for ordinary texts. However, the context and the social group (national, age group, etc.) to which the sender and addressee of the message belong are much more important for emoji. The general conclusion is to think what you write, even if you write it using emoji.
Keywords: emoji, emoticon, non-verbal communication, text interpretation, contract law, tort law, criminal law
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Ekaterina Terdi, Mikhail Aseev The Institute of Interrogatory Actions in French Civil Law: Perspectives of Reception by Russian Legislation
The article is devoted to the French institution of interrogatory actions developed as a result of reform of French law of obligations in 2016. Analysis of the French Civil Code, the projects of its amendments, French judicial practice and doctrine allows estimating critically this mechanism of elimination of legal uncertainty. The authors discuss whether this instrument should be adopted by Russian law and suggest some improvements to its regulation.
Keywords: interrogatory actions, legally significant messages, invalid transactions, contractual preemptive rights, agency, representation
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Stanislav Sobolev Incentive Remuneration of an Insolvency Administrator for Voluntary Repayment of Creditors’ Claims: Crystallisation of Problems and Search for Their Solution
The Bankruptcy Law provides for two cases in which an insolvency practitioner could receive an incentive remuneration. In one of them, the remuneration is provided for the actual repayment of creditors’ claims and depends on the percentage of satisfied claims. In the other case, the remuneration is paid if creditors’ claims are settled through the actual execution of a judgment that holds the controlling persons liable for the bankruptcy. One of the subspecies of the second case of remuneration is the situation when, after filing an application for bringing the controlling persons to liability, the creditors’ claims were satisfied voluntarily. This article considers the latter narrow situation. Based on the results of the study, the article argues that although the introduction of this institution is to be welcomed, there are still problems that require clarification by the Supreme Court. The study of the conditions for the remuneration allows us to conclude that in the case of repayment of creditors’ claims after the filing of an application to hold the debtor’s controlling persons liable, it should be presumed that this happened precisely because such an application had been filed. The article also suggests that incentive remuneration should be established not only in the case of filing an application for subsidiary liability, but also in the case of filing other claims, which may have a negative effect on the controlling persons. A separate block is devoted to criticism of the approach of courts, which reduce the incentive remuneration to arbitration administrators.
Keywords: termination of bacruptcy proceedings, incentive remuneration
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Daniil Boreysho Protection of Visibility in Assignment of Claims (Part 2)
This is the second part of the article which deals with the debtor’s defence in two cases: first, when the debtor was unaware of the assignment and, secondly, where the assignment has been declared invalid after the obligation has been fulfilled to the assignee. It examines criteria and conditions that should apply to the debtor’s defence from the perspective of the doctrine of the visibility of a right. The author describes cases in which the Russian legal order grants the debtor a defence and proposes solutions to the problems arising in practice. Those include the question of when the debtor could be considered to be in good faith. Another issue is whether the protection of the debtor is affected by the fact that he has not suffered any loss or that the actual creditor has involuntarily lost his claim.
Keywords: assignment of claim, cession, doctrine of appearance of right, good faith principle
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Anastasia Mekhontseva Integration Clause: Comparative Observations (Part 1)
The starting point of the study is the examination of the oral evidence rule as a legal precursor of the integration clause, as well as its nature and functions. In the first part of the article, the author, using comparative material, assesses the validity of such reservations, including those included in consumer contracts or being standard terms of a commercial contract, and identifies and analyses the limits of their effect. Based on the experience of foreign doctrine and jurisprudence, the author considers five approaches to determining the legal effects of the inclusion of a reservation in an agreement from the point of view of the need for the court to further investigate whether the parties had the will to include it in the text. The differences between the approaches are analysed on the basis of three model cases. On the basis of this generalisation, the author determines what approaches to the understanding of the integration clause have been adopted in international unifications of private law.
Keywords: integration clause, takeover clause, integrity of agreement clause, oral evidence rule
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