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Сентябрь 2023



Chief editor’s column



Interview of the issue


Topic of the issue

V.V. Arkhipov Virtual Property “Many Years After”: Does the Noble Dream of Digital Lawyers Have a Future?
The phrase “virtual property” has become popular in legal discourse in recent decades. The term “virtual property” unambiguously, reasonably and meaningfully can be applied only to describe game mechanics; for this area, as well as for digital law in general, it is crucial not to seek to identify phenomena from the world of facts with legal constructions, which means that it is inappropriate to use the term “virtual property” for heterogeneous objects, trying to combine, for example, domain names and in-game property into one category – it is necessary to distinguish between objects that are in direct connection with the subject of the law and objects whose “ownership” is mediated by some virtual representation; the same object of the digital world, including “virtual property”, may fall under several legally coexisting parallel regimes; the notion of “virtual property” makes no genuine legal sense in the context of an isolated game component – an imaginary, virtual world – insofar as it is maintained, as well as in the case of an attempt to build an analogy with сontinental property law, since the model of an absolute legal relationship contradicts the nature of this phenomenon; all this, however, does not mean that any object of “virtual property” cannot be an object of legal relations, but only that legal qualification is possible only on ad hoc basis; the real-law model of “virtual property” in this case in the future can be realised in the models of relations on the basis of NFT; for all legal issues in game environments, including those related to “virtual property”, the good faith of the participants in the relationship is legally relevant, which should be determined depending on compliance with the rules of the game, a fact to which the concepts of the sui generis exclusive right of the organiser of the game and the “game veil” as proposed in the article are related.
Keywords: digital law, information law, civil law, intellectual property, computer games, virtual worlds, virtual property, “magic circle”
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E.E. Kirsanova Review of the Main Theories of Determining the Legal Regime of Objects Created by Artificial Intelligence
The article analyses approaches to determining the applicable legal regime of objects created by artificial intelligence, criticises certain provisions of various concepts, and also suggests ways of further development and solutions of the issue in question.
Keywords: аrtificial intelligence, neural network software, AI-generated work, exclusive rights
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A.I. Savelyev Legal Regime of Preparatory Materials Obtained During the Development of Computer Programmes
The paper is focused on the analysis of the legal regime of preparatory materials created during the development of computer programme. The article outlines existing doctrinal positions on this matter. Special attention is paid to the definition of materials, which fall under the notion of “preparatory materials”, as well as to possible purpose of inclusion of such object in Article 1261 of the Civil Code as separate copyrightable element of the computer programme. It is concluded that unlawful use of preparatory materials for development of a competing programme can be used as a basis for infringement claim (plagiarism), even if source codes of both programmes are not the same.
Keywords: computer programme, preparatory materials, plagiarism
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Yu.S. Kharitonova Utilitarian Non-Replaceable Tokens in the Russian Law Enforcement: Problems of Legalisation
The rise of distributed ledger technology and the growth of the crypto-economy has led to the evolution of non fungible tokens from digital image rights authentication to utility solutions that allow consumers to benefit from the possession of rights in the community. The legal analysis of utilitarian non-fungible tokens leads to the need to apply the provisions of the law on utilitarian digital rights to tokenisation services. However, possessing the features of digital rights, utilitarian NFTs cannot always be the object of investment, which requires the exclusion of such tokens from the scope of regulation of the law on crowdfunding.
Keywords: non fungible tokens, utility tokens, tokenisation of economies, digital assets
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O.A. Polezhaev NFT Assets in the System of Legal Rights: Problems of Legal Qualifications
This article is devoted to the regulation of objects of intellectual rights expressed in the digital environment with the help of NFT tokens. It is proved that when determining the legal regime of NFT, the key circumstance to be taken into account is the nature of connections that arise between the digital asset and the underlying object. The variety of types of such relations leads to a situation in which apparently similar NFT tokens will perform completely different legal functions, which will inevitably affect the legal status of their holders.
Keywords: digital assets, NFT, objects of intellectual rights, transfer of exclusive rights, license agreement, access relations
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E.R. Valdes-Martines Digital Objects of Fine Art and NFT: Myths and Reality
A non-fungible token is a digital unit of accounting, with the help of which a digital impression is created for any unique physical item or object, including a digital one, for subsequent performance of various types of transactions, including transactions within a closed blockchain system. The development of digital technologies, including NFT, poses many questions to the researchers. The author of this article conducts a comparative analysis of digital objects and NFT, considers the problems regarding NFT and copyright to the works of fine art, the transition of the right to NFT and the transfer of copyright, possible violations of copyrights using NFT, etc. The need and feasibility of changing the current legislation is assessed.
Keywords: digital objects, works of fine art, NFT
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M.A. Uspenskiy Nature of the Digital Currency in Common Law and Continental Law
Currently, neither doctrine, legislators nor courts have a clear understanding of cryptocurrency as an object of civil law in the context of Article 128 of the Civil Code, and even the definition of digital currency in the federal law on DFA (digital financial assets) does not help to solve this problem. As a result, the court practice on cryptocurrency is contradictory, plaintiffs are denied protection of their rights, while the pace of lawmaking has slowed down significantly. A comparative legal analysis of the best international law enforcement practice on cryptocurrency has led to the conclusion that its civilistic essence is as close as possible to property rights, and the domestic law is significantly ahead of most codified acts of the continental legal system.
Keywords: cryptocurrency, blockchain, bitcoin, consensus, digital currency, property right, obligation, digital financial assets
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M.A. Tevs De Facto Sale of Personal Data: Review of Voluntary Data Monetisation Service Offers
The legal situation with the turnover of personal data in services that provide remuneration to the user for the processing and resale of his data is investigated. The offers of a group of such services are considered, their differences and common approaches are described. Suggestions are given for practising lawyers and the regulator.
Keywords: personal data, remuneration for processing, data as a service, data as a database, GDPR
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A.Yu. Braginets Information Objects as Property: Experience of Common Law Jurisdictions and Prospects for Its Implementation in Russia
The article is devoted to the study of the common law approach to the legal regime of economic values embodied in the form of objectified data (data objects or digital assets). The author focuses on the principal possibility and grounds for qualifying data objects as property, as well as their inclusion into one of the property classes. The analysis begins with an overview of the essential characteristics of property developed in the court practice and legal studies in common law jurisdictions. The author then considers the problem associated with the integration of data objects into the traditional dichotomy of personal property which include choses in possession and choses in action. It is noted that this integration is possible by introducing a third (non-traditional) type of property. The author provides a brief overview of some notable case law addressing the recognition of digital assets as property. The study shows that courts of common law jurisdictions recognise property rights in respect of digital assets, but they do not classify such objects as a specific class of property. Furthermore, there are opposite positions taken by courts regarding the possibility of keeping data objects in possession. In conclusion, the author gives a brief overview of some initiatives related to legislative developments of data objects’ regime as property in the United Kingdom and USA, as well as notes ideas and approaches that might be of interest in the context of the Russian law. In the author’s opinion, as in common law jurisdictions, the Russian legislators should recognize data objects as a special type of property, the appropriation of which is carried out through a specific right that is distinct from the right of ownership. When developing a new legal regime, they should also consider ideas of foreign colleagues related to the criteria for identifying data objects qualified as property.
Keywords: digital assets, data objects, cryptocurrencies, electronic records, property, ownership, possession, control, common law
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A.N. Vereshchagin The Regicide of 1 March 1881 and the Case of General Mrovinsky: Unlawful Inaction of Authorities As Interpreted By the Cassation Senate
The article deals with the fundamental court precedent on the issue of unlawful inaction of authorities, in which the Senate laid down the conditions of responsibility of officials in such cases. The circumstances of the case, the attitude of the press and the personality of its main figure — General K.I. Mrovinsky are considered in detail
Keywords: officials’ negligence, service offences, Ruling Senate
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Legal Chronicle
The Legal Chronicle of the September issue contains comments on the new law on the digital ruble, changes in bankruptcy and civil legislation, in particular on the change in the approach to liability of a taxi aggregator, the launched experiment in Islamic banking, as well as the 11th package of sanctions and countermeasures taken by Russia.
Keywords: sanctions, counter-sanctions, digital ruble, taxi aggregator, Islamic banking, liability, bankruptcy
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Theory and practice

G.A. Gadzhiev Does Russian Civil Law Need Demistification?
The article discusses the methodological problems of postclassical civilism. In this regard, it is analysed what is the demistification of the abstract norms of the common part of the Civil Code of the Russian Federation. Based on a critical analysis of the achievements of classical civil law, and above all pandect theory with its “abstract monsters”, the possibilities of using new methods of cognition and law application, such as the method of nominalisation of “modified forms” — abstract concepts, are described. The well-known decisions of the Constitutional Court of the Russian Federation are used as empirical material.
Keywords: spacing (demistification) of abstract concepts, postclassical civil methodology, the cognitive structure of “modified forms”, nominalisation method, the constitutionalisation of the norms of the general part of civil law
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A.Yu. Bushev The Principle of Good Faith in the Judgments of the Constitutional Court of the Russian Federation: On the Anniversary of Gadis Abdullaevich Gadzhiev
The article analyses the practice of the Constitutional Court of the Russian Federation on the issue of applying the principle of good faith before and after the amendments to the Constitution of the Russian Federation in 2020, the conclusion is made that the provisions introduced into its Article 75.1 are an additional constitutional justification for extending the principle of good faith to all areas of activity, both private individuals and public authorities, including relations between them, focusing on cooperation, mutual respect, the manifestation of kindness, honesty and justice in the name of the common well-being and welfare. As one of the justifications for the conclusion about the increase in the importance of this principle at all stages of the formation, interpretation and application of a normative rules, some arguments are given, expressed in the scientific publications of G.A. Gadzhiev, who has devoted more than 30 years to the Court and is celebrating another anniversary in 2023.
Keywords: principles of law, good faith (bona-fides), Russian Constitutional Court, public interest, private interest, constitutionalisation
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T.A. Merebashvili Abandoned Shares of Lost Shareholders (A Commentary on the Supreme Court Ruling of 15 December 2022 № 304-ЭС22-10636)
Despite the active digitalisation, significant simplification of accounting and identification of the subjects of rights and obligations in the Russian Federation for 30 years, there is a problem of search for “missing shareholders” and creation of a clear and transparent mechanism for the return of shares of a dead or liquidated shareholder. The author makes an attempt to answer the question of the applicability of the analogy of the law, analyses judicial practice and comes to the conclusion about the need for radical resolution of the above problem. The economic essence of the action itself and the form of business of joint-stock companies requires that the rules for determining the fate of the “ownerless” and “escheated” shares and issuer rights to such shares have appeared directly in the law.
Keywords: ownerless shares, escheated shares, corporate administration, promotion, shareholders’ rights, acquisition of own shares, treasury shares, minority
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E.A. Evstigneev Problems of Fulfilment of an Obligation When Challenging an Assignment
In this article, the author analyses the current state of the institution of assignment through the prism of fulfilment of an obligation of debtors in the conditions of contesting the assignment agreement. The author states that the existing provisions of the Bankruptcy Law grossly and unreasonably violate the basic principles of the institution of assignment. In particular, this leads to a violation of the principle «the position of the debtor cannot be worsened by the assignment of the right to claim». The author comes to the conclusion that if this principle is consistently followed, then a balance of interests is possible, in which the debtor is obliged to exercise due diligence in relation to the circumstances associated with the invalidity of the transaction for the direct transfer of the assigned right. Based on this principle, in the conditions of challenging the assignment agreement, the debtor must in any case be considered in good faith if there is a decision that has entered into force on the validity of the assignment of the right to claim.
Keywords: assignment of the right to claim, dispositive transactions, obligation transactions, good faith, balance of interests
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E.A. Borisova Mediation and Notary: Experience of France and Russia
Mediation as a procedure for a peaceful settlement of disputes is gradually entering the legal life of many European countries. Mediation being in the “set” of conciliation procedures proposed by the state as an alternative to trial, as a friendly settlement of legal conflict, is developing in a priority order. One of the areas of development is the application of the procedure in notarial activity. The French notary achieved in this area certain results that are of interesting for study, analysis, and subsequent perception, taking into account Russian legal realities. A notary mediator, a notary who knows and accepts mediation as a way of resolving a dispute, a notarial intermediary is not only the names that are interesting for the theory of the civil process, bur they are notarial practices. The use of various aspects of mediation in notarial activity allows us to talk about the reality of the “union” between notaries and mediation, its organic character due to the similarity of the goal, objectives, principles of the notary and mediator. At the same time, attention is drawn to the presence of a number of problems that impede the active promotion of mediation into the sphere of notaries.
Keywords: mediation, notaries, intermediary, mediation center, justice, education, resolution of the dispute, conflict
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