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Октябрь 2023




Stanislav Smirnov If the Seller Is Dead
Case Comment to the Judgment of the Chamber for Civil Cases of the RF SC No 78-КГ21-59-К3, 22 March 2022 The article comments on the dispute surrounding the transfer of ownership of an apartment after the death of the seller. The case clearly shows the legal nature of the transaction, obligation, power of attorney, registration of transfer of rights and succession. The lines between these categories are sometimes confused by the courts, and the commented case did not escape erroneous interpretations. The author examines the approach of the Supreme Court when reviewing the case and analyzes the reasoning of the courts.
Keywords: purchase and sale, power of attorney, transfer of ownership, state registration, inheritance, escheat
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Dmitry Abushenko Subsequent Competition of Judicial Procedures: Reflections on a Legal Phenomenon on the Example of a Court Ruling on the Establishment of Claims in a Bankruptcy Case
In this article, the author continues the study of the competition of judicial procedures. Based on the temporal criterion, it is proposed to distinguish two independent varieties of such competition: preliminary and subsequent. With regard to subsequent judicial competition, it is substantiated that although the very admission of a new judicial proceeding on an identical claim contradicts the maxim ne bis de eadem re sit actio developed in Roman law, nevertheless there are cases when this kind of competition should be allowed. It is proposed to refer to such cases, including situations of specific (in comparison with the general legal procedure) application of procedural or substantive rules in a case initiated on the basis of an initial appeal to the court. Using the example of a court ruling on the inclusion of creditors’ claims in the register of creditors’ claims, possible approaches are highlighted that would determine the fate of the exclusivity of legal force. At the same time, both the unconditional equating of the said judicial act with a ‘full-fledged’ judicial decision and the complete denial of the exclusivity of legal force are criticized. As a result, several rules are proposed that, on the one hand, ensure the full realization of the right to judicial protection of the aggrieved party, and on the other hand, prevent (for cases where there was no infringement) the reconsideration of an identical claim.
Keywords: competition of judicial procedures, res judicata, legal force, exclusivity of the legal force of a judicial act, determination of the establishment of claims in a bankruptcy case, a separate dispute
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Pavel Chistyakov Precontractual Liability of Third Parties Participating in the Contracting Process in Russian and German Law: A Comparative Legal Study
The article provides a comparative legal study of the legal regulation of precontractual liability of third parties involved in the process of contract conclusion in German and Russian law. German courts have developed two alternative grounds of liability for these persons: the creation of a strong reliance on the third party by the counterparty and a special economic interest of the third party in the transaction. However, the liability of a third party is possible even without these grounds, if it has intentionally caused harm to the other party. The article also deals with the problem of a contracting party’s liability for the conduct of a third party. If the precontractual wrongdoing was committed by him within the scope of the tasks assigned to him by the contracting party, the contracting party is liable for his conduct. The article assesses the possibility of introducing the construction of a separate precontractual liability of a third party in Russian law. The author concludes that the tort approach to the qualification of precontractual liability in Russian law has the necessary potential to impose individual liability on third parties. At the same time, when imposing personal liability on third parties, it is proposed to use the grounds developed in German law to avoid their unlimited liability at the precontractual stage.
Keywords: рrecontractual liability, contract formation, precontractual misconduct, contracting party
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Nikita Vilenskii Double (Multiple) Derivative Actions in Russian Case Law: Problems and Contradictions
This article reveals the legal nature of derivative claims of the shareholders of parent companies in the interests of subsidiaries. The author focuses on the specifics of the approaches of Russian courts and emphasizes their difference from foreign experience. It is concluded that law enforcement practice has not yet made a final choice, since it is possible to meet very ambiguous and even inconsistent approaches of courts. In particular, (1) Russian courts do not exclude the possibility of recovery of the reflected loss of the parent company while denying the participants of the parent companies a double derivative claim for recovery of losses, which for objective reasons complicates the resolution of the dispute; (2) Russian courts allow multiple indirect claims for invalidation of transactions by artificial application of grounds of nullity.
Keywords: multiple indirect claim, participant of the parent company, holding structures, investment interest, recovery of losses, reflected losses, contesting transactions, invalidity, nullity
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Valentina Rodikova Artificial Intelligence vs Judicial Discretion: Trust Not Verified. Prospects and Risks of Automation of Judicial Practice
The article is a continuation of a broad public discussion on the implementation of the Artificial Intelligence interface in the Russian justice system, the risks and legal vulnerabilities of this process on specific examples of law enforcement practice. The current domestic legislation on the use of AI is analyzed, as well as the latest foreign novels on this issue, including the DRAFT Compromise Amendments on the Draft Report Proposal for a regulation of the European Parliament and of the Council on harmonised rules on Artificial Intelligence. The article considers risk factors of judicial discretion and the use of Judicial AI both in comparison and independently. It studies the counter-dictatorial points of view of law enforcement officers, foreign and Russian researchers, developers of Artificial Intelligence systems about the prospects of using Judicial AI in the justice system. Conclusions are substantiated about the absence of short- and medium-term outlook for the introduction of Artificial Intelligence, taking into account the existing risks and geo-political situation, as well as the state of the legislative framework and the principles of the justice system of the Russian Federation.
Keywords: artificial Intelligence, neuronet, judicial discretion, strong and weak artificial intelligence, risk-based approach, justice system, forecasting, biometric identification
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Polina Napolskaia Group Bankruptcy: The Future Is Coming
Although all the big discussions about the bankruptcy of a group of companies have now subsided, the urgency of the issue has not diminished. Professionals in this area discuss the ineffectiveness of contesting transactions and the problems of cross-inclusion of claims in the registers of affiliated companies. The option of material consolidation is now often mentioned in these discussions as a possible solution to the problems. Probably, the legal community needs a little more time to realise the need to amend the Bankruptcy Law in terms of regulating the bankruptcy of a group of companies. This article analyses foreign and international regulation of bankruptcy of a group of companies, assesses the main advantages and disadvantages of the existing mechanisms: coordination, substantive and procedural consolidation, and drafts amendments to the Bankruptcy Law.
Keywords: group of companies, substantive consolidation, procedural consolidation
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Nikita Rzhanov Realisation by Participants in a Syndicate of Creditors of Their Rights to Initiate and Participate in a Debtor’s Bankruptcy Proceedings
In this article the author analyses possible approaches to the implementation by the participants of a syndicate of creditors of their rights to initiate the bankruptcy of the borrower and participate in it. The article defines various models for the implementation of this creditor’s right, considers the norms of Russian legislation governing the relations of syndicate participants, as well as the practice adopted in foreign legal orders for the exercise by persons belonging to a syndicate of the powers to initiate a bankruptcy procedure for a borrower and participate in it. The author highlights the main problems and shortcomings that both models of the syndicate of creditors have, and also demonstrates the intentions of the Russian legislator to encourage participants in the syndicated lending market to establish collegial decision-making to determine strategies for working with a loan.
Keywords: syndicate of creditors, bankruptcy procedure, creditor’s rights, US law, UK law
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Igor Lyashenko Consequences of Violation of the Procedure for Disclosure of Evidence in General Court Proceedings: Law Enforcement Practice
The article is devoted to the study of the consequences of the violation by the litigants the disclosure procedure in court proceedings. The author analyses the court practice on this issue. It is demonstrated that the prevailing approach is to allow free presentation and examination of evidence, even in violation of the procedure for their disclosure. The practice relating to the distribution of judicial costs is also not homogeneous.
Keywords: disclosure of evidence, arbitration procedure
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