Журнал ЗАКОН

Commentary to Ruling of the Constitutional Court of the Russian Federation No. 28-П of 31 May 2023 The commentary deals with the bankruptcy qualification of a profit tax claim arising as a result of the sale of a debtor’s property in bankruptcy proceedings. The law enforcement practice of recent years has referred to such claims as over-registered claims. This approach was changed in the Judgment of the Constitutional Court of the Russian Federation No. 28-П of 31 May 2023, in which the Court proposed to qualify the tax claims in question as third-priority register claims. The RF Constitutional Court also pointed out that it is up to the legislator to finally determine the place of the tax claims in question. The Ministry of Economic Development of Russia has issued a draft, in which it is proposed to classify all mandatory payments arising after the bankruptcy petition has been accepted as current claims. The author criticises the approach chosen by the legislator and the Constitutional Court of the Russian Federation, and considers that the best option is to return to the qualification of the claims in question as out-of-register.

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Keywords: income tax, current claims, bankruptcy, bankruptcy proceedings, priority of satisfaction of creditors’ claims

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС22-16446, 15 December 2022 In the commented dispute, the problem of choosing a method of protecting property rights was manifested, when the application of a negatory claim, which should have eliminated the existing violation of the right, turned out to be impossible due to the legislative prohibition on the transfer of burial sites, in connection with which the plaintiff sued for damages. The approach demonstrated by the Supreme Court of the Russian Federation in this case, according to which, if it is impossible to use one method of protecting the right, the applied method of protection replaces the method of protection that cannot be used, and thereby acquires its features, cannot be recognized as correct. The impossibility of using one method of protection cannot serve as a basis for the conclusion that the applied method of protection accumulates the features of an inapplicable method of protection. The initial impossibility of filing a negatory claim due to the legislative prohibition on the transfer of burial sites only indicates that there is no substitution of the claim, and another independent method of protection is subject to application. In turn, the attempt of the Supreme Court of the Russian Federation to justify the non-application of the limitation period to the claim for damages by the fact that the claim replaces the negatory claim, and the violation itself is not related to the deprivation of possession, seems artificial and only indicates a desire not to apply the limitation period for a claim for damages in the absence of sufficient grounds. Such an approach cannot be supported, since following such an approach blurs the lines of distinction between legal institutions and methods of protecting the right, while each method of protecting the right has unique conditions of application, as well as the rules applicable to the relevant claim.

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Keywords: property right, negatory claim, compensation for damages, method of protection of the right, claim, legal dispute

In order to conduct the bankruptcy case, the trustee in insolvency needs to ensure that the requested information and documents are available for the proper fulfilment of his duties. To assist in obtaining the necessary information, the trustee applies to the court. As a rule, such an application is accompanied by a request for a court penalty (astreinte) if the person refuses to fulfil the obligation imposed on him by the court. Often the courts accept the position of the administrators and award such a penalty. When the application of astreinte (court penalty) for nonexecution of a judicial act of the court on reclamation of evidence in a bankruptcy case is allowed by law, and when not, what should be taken into account when considering the request of the manager, what mistakes are made by the courts — these and other issues of theory and practice of arbitration process are considered in this article.

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Keywords: astreinte, judicial penalty, fine, bankruptcy, reclamation of evidence

The article criticizes the norms of Russian legislation that violate the unity of criteria for distinguishing between such types of real estate as buildings (structures) and compartments. In particular, the norms of the Housing Code of the Russian Federation, which define residential compartment and include residential buildings in the list of residential compartments, are analyzed. An analysis was made of the norms of the Federal Law of December 30, 2021 No. 476-ФЗ ‘On Amendments to Certain Legislative Acts of the Russian Federation’, which recognized block houses as buildings, as well as the Federal Law of April 5, 2021 No. 79-ФЗ ‘On amendments to certain legislative acts of the Russian Federation’, which included interlocked garages as buildings. The author does not see any weighty arguments for recognizing objects that correspond to the characteristics of compartments as buildings and shows the negative consequences of erroneous decisions for legal regulation. At the same time, it is concluded that changing the legal regime of some compartments and providing their owners with certain opportunities characteristic of building owners does not require changing the status of these compartments and their ‘transformation’ into buildings.

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Keywords: real estate, building, structure, compartments, residential compartments, non-residential compartments, residential building, multi-compartment building, individual housing construction, block house, block garages, low-rise residential complexes

The article is devoted to the study of paragraph 5 of the Resolution of the Plenum of the Supreme Arbitrazh Court of the Russian Federation of 30 July 2013 No. 62 as a basis for building an effective and fair mechanism for bringing the head of a legal entity to responsibility for the actions of third parties. For this purpose, the general boundaries of the liability of a director for third parties are considered; the categories of ‘choice’, ‘control’ and ‘organisation of the management system of a legal entity’ proposed in the resolution are analysed, their definitions and applicability criteria are proposed; the court practice on the relevant issues is examined and it is concluded that at the moment it is not subject to any systematic approach and therefore contains contradictory decisions. The result is an initial theoretical elaboration of the problem of liability of the head of a legal entity for third parties in Russian law.

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Keywords: chief executive officer of a legal entity, vicarious liability, corporate liability, fiduciary duties

On 23 August 2017, the Judicial Chamber for Economic Disputes of the Supreme Court of the Russian Federation issued its judgment No. 305-ЭС16-13148 (2), where, for the first time in many years in domestic jurisprudence, the outcome of a dispute depended on the resolution of a conflict of qualifications in private international law — perhaps the most important problem of conflict of laws, which is the key to understanding the essence of a conflict of laws rule and conflict of laws regulation. Despite the fact that the Russian legislator has regulated the resolution of the conflict of qualifications in Article 1187 of the Civil Code of the Russian Federation, almost everything in this issue — from the definition of the conflict of qualifications to the way of its resolution — is controversial and ambiguous. The judgment of 23 August 2017 is an excellent occasion to return to the discussion of the old problem. The solution proposed by the Panel is the dominant one in the German doctrine (there it is called functional qualification) and jurisprudence. The article is largely devoted to the theory of functional qualification, which is not generally recognised in Russian literature.

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Keywords: private international law, conflict of characterisation (classification), functional characterisation, scope of a choice of law-rule, connecting factor, extent of a choice of law-rule reference, canalised reference, lex fori

According to Clause 4 of Article 167 of the Civil Code of the Russian Federation, the court may not apply restitution for invalid transactions if it would be contrary to the foundations of law or morality. The article considers and classifies the situations that fall under the above definition, examines the history of the appearance of Clause 4 of Article 167 of the Civil Code of the Russian Federation, its nature and foreign analogues. The author substantiates why the presence of this norm in the legislation is necessary, criticises incorrect examples of its application, and raises the question of whether it was appropriate to abolish the right of the court to confiscate the performance of anti-social transactions.

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Keywords: restitution, invalidity of transactions, illegality, fundamentals of law and morality, judicial discretion

The paper is dedicated to the controversial issue of statutory regulation of the immunity from execution of central bank assets on the basis of courts’ judgments or arbitral awards. Modern judicial practice on the rules of jurisdictional immunities of foreign states reflects the contradiction between the absolute immunity of central bank assets and its attractiveness as a potential source of payment of compensation to foreign investors. In general, the courts proceed on the assumption of full immunity of all central bank assets and broadly interpret the functions common to central banks.

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Keywords: jurisdictional immunities, immunity of assets of central banks, investment arbitration

The article analyses the current application of the provisions introduced in the Arbitrazh Procedure Code of the Russian Federation in 2020 on the transfer to Russia of disputes involving sanctioned persons. Despite the fact that since the beginning of last year the courts have mostly interpreted the relevant provisions expansively, presuming both the existence of restrictions on access to justice abroad for sanctioned companies and the unenforceability of the relevant prorogation and arbitration agreements, this mechanism is not applicable to all situations and can only be used by an applicant if he is prepared to take reputational and other significant business risks. Even in the current extraordinary circumstances, such a step may be viewed with mistrust by any foreign partners, especially if the applicant has not bothered to provide evidence of the real unenforceability of the arbitration clause or to try to find a mutually acceptable solution. At the same time, in addition to special ‘sanction’ articles of the APC RF, traditional categories known to foreign legal orders, such as invalidity of the transaction, pathological nature of the clause, material change of circumstances, frustration of contract, public policy, etc., remain at its service.

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Keywords: international sanctions, court competence, arbitration agreement, prorogation agreement, international civil procedure