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Сентябрь 2023




Stanislav Smirnov Corporate Status of the Surviving Spouse: Actualization of the Problem
Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 310-ЭС23-663, 6 June 2023 The article continues the review of the current practice of the Supreme Court regarding the right of a surviving spouse to participate in a limited liability company. Using the example of a new case, it shows the difficulties that could occur when there is a gap in the law. The author demonstrates how the court practice on this issue varies and concludes with comments on the dogmatic aspect of the problem.
Keywords: corporate law, limited liability company, matrimonial property, inheritance
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Elena Ostanina The Missing Persons and the Dynamics of the Obligations and Corporate Managing
The institute of missing persons does not often attract the attention of researchers. At the same time, in the current legislation the norms on recognising a citizen as missing are built in accordance with two opposing concepts. One of them is that the recognition of a citizen as missing does not terminate all obligations. Only those that are closely linked to the identity of the missing person are terminated. The second concept is reflected in the Law on Enforcement Proceedings and implies that the recognition of a citizen as missing entails suspension or termination of enforcement proceedings if a trustee is not appointed. A trustee is not appointed in all cases where a citizen is recognised as missing. Therefore, the unexpected result of recognising a citizen as such is the transformation of the obligation into a natural one. The article considers how the interests of creditors are protected in the case of recognising a debtor as missing. It analyses the legal status of a trustee of the property of the absentee, who performs in the interests of third parties and the absentee himself the functions of property management. This status is close to the legal status of the trustee of inheritance. The article concludes that some norms on the trust management of inheritance by analogy of the law can be applied to the trust management of the property of the missing person.
Keywords: missing persons, enforcement proceedings, trust, corporate law, bankruptcy
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Marina Nokhrina Bankruptcy Proceedings as a Ground for Termination of Powers of Attorney
The article deals with bankruptcy proceedings in which powers of attorney are terminated. It describes in turn the cases of termination of powers of attorney in case of bankruptcy of the represented organisation, the represented individual, and the bankruptcy of the representative. The article criticises existing doctrinal provisions regarding the application of para 7 of art. 188 of the Civil Code of the Russian Federation, and offers alternative view on the problem.
Keywords: bankruptcy, power of attorney
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Sergey Trofimov Remedy of Price Reduction: Calculation Method and Correlation with Damages Claim
This research is dedicated to the legal regime of the remedy of price reduction. It focuses on two issues: (a) the method for calculating the amount of price reduction and (b) the correlation of this remedy with damages claim. The author thinks it is appropriate to apply in Russian law (1) the proportional method for calculating the extent of price reduction with limitation of recovery in case of unfavourable bargain and (2) the limited cumulativity approach, allowing the creditor to recover general damages (Schadenersatz statt der Leistung) in excess of the amount of price reduction and to recover consequent damages. The legal nature of price reduction in the context of the proportional method for calculating is not yet fully resolved, which does not prejudice value of this remedy for the development of creditor protection in a particular legal order in the event of the debtor’s improper performance.
Keywords: remedy of price reduction, damages claim, law of obligations
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Ayk Kerselyan Pre-Contractual Stage in Tender Procedures
The article examines the qualification of relations of the parties in the bidding process. The author analyses various legal qualification of relations of the organiser and the bidder, their mutual rights and obligations and protection measures available to the parties. The relations of bidders among themselves and their legal qualification are also considered. The study contributes to a deeper understanding of the bidding process in the light of the concept of pre-contractual liability.
Keywords: contract law, tendering, pre-contractual liability
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Anastasia Mekhontseva Integration Clause: Comparative Observations (Part 2)
The article analyses the peculiarities of integration clauses as a frequently-used contract clause type in England, the USA, Germany and France. Having studied approaches of these jurisdictions to the legal consequences of including an integration clause into a written contract, the author proceeds to explore Russian approach to integration clauses and offers suitable options to develop this approach. The article also dwells on the problem of integration clauses that are applied to contract interpretation. This problem is regarded as a part of contract freedom in contract interpretation debate. Based on the results of a comparative analysis, the author gives a preliminary assessment of such clauses validity in Russia and names situations when such freedom of contract manifestation ought to be blocked by the court.
Keywords: integration clause, merger clause, entire agreement clause, parol evidence rule, contractual modification of contract interpretation rules
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Yuliy Tay, Sergey Budylin Pyrrhic Compromise. Priority of Income Tax Claims from the Realisation of Property in Bankruptcy
The article discusses a ruling of the Constitutional Court of the Russian Federation concerning the imposition of profits tax on income from the sale of property of a bankrupt company. The question was in what order the claim for this tax falls. There is no clear answer to it in the law. Tax authorities usually insist that it is a current claim (which has priority over register claims). The recent court practice, on the contrary, has been mainly in favour of placing these claims outside the register (i.e. recognising the priority of register claims). The Constitutional Court, having taken this issue under consideration, finally ordered the legislator to resolve it, but until then instructed the courts to equate the relevant claims with register claims. One of the main arguments in favour of this option was that it was a ‘compromise’. The authors are critical of the CC ruling. The Court did not recognise the emerging judicial practice as unconstitutional, but for some reason decided to reverse it by imposing its own version of regulation on the courts. Meanwhile, the CC has neither the authority nor the necessary resources to fully regulate economic relations. Its function is only constitutional control over the actually existing legal norms. Having been engaged in the wrong business, the CC predictably made not the most successful decision on the merits of the issue. In the authors’ opinion, de lege ferenda the optimal solution is either to place the relevant claims outside the register or to fully exempt the proceeds from the realisation of the bankrupt’s assets from income tax.
Keywords: bankruptcy, tax law, income tax, Constitutional Court of the Russian Federation, judicial law-making, compromise
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