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Декабрь 2023




Dmitry Abushenko The Debtor’s Right to Assert a Set-Off Counterclaim against the Assignor in Cases of Enforceable Claims
Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС23-8661, 17 August 2023 In the article, the author analyzes the admissibility of the debtor’s presentation to the assignee of a counterclaim directed to offset in the presence of a creditable claim to the assignor. It is proved that in the case when the parties had not previously concluded an agreement on the transfer of debt, the presentation of such a claim would contradict the legal nature of an independent substantive claim. In addition, in a situation where the original creditor falls into bankruptcy, the debtor would receive an advantage over other persons: the remaining creditors would be content with what they get in the competitive procedure, the debtor could realize his claim in full in a counterclaim addressed to the assignee. Separately, the possibility of procedural-material conversion is considered, by which it is proposed to understand the transformation of a specific procedural action into a substantive structure carried out at the will of the court. To convert a counterclaim into a civil set-off, pro and contra arguments are analyzed. The conclusion is substantiated that for this case of conversion, the arguments against outweigh the potential positive effect that would be achieved by such a conversion.
Keywords: civil set-off, set-off made when the court satisfies counterclaims and initial claims, assignee, assignor, debtor, assignment, conversion
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Daniil Mambetov On Transaction-Like Actions (Part 1)
The paper provides analysis of the legal nature and regime of transaction-like actions Representing a relatively new phenomenon for domestic science, this legal category has not yet been subjected to a comprehensive analysis and critical approach regarding the need for its independent allocation in the theory of legal facts. The first part of the article published in this issue of the journal examines the essential characteristics of transaction-like actions that distinguish it from other legal actions.
Keywords: transaction-like actions, transaction, legal fact
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Filipp Galushkin Direct Tort Claim against an Employee: In Search of a Master Approach
The article highlights the problems of personal tort liability of an employee for harm caused by him in the course of employment. In the light of the experience of western law and order and Russian case law, the issues of joint and subsidiary liability of an employee, the correlation of the principles of general tort and limited liability of an employee are analyzed, and the problem of the existence of direct tort claims outside the framework of a bankruptcy case is also raised. The author comes to the conclusion that de lege ferenda direct tort liability should be imposed on the employee in strictly exceptional cases on the direct instructions of the legislator (the principle of exclusive subsidiarity), and the practice of filing direct tort claims against controlling persons ‘bypassing’ the rules established by the bankruptcy legislation is illegal and subject to termination.
Keywords: strict liability, vicarious liability, direct tort claim against an Employee, exclusive subsidiarity, the principle of general tort, direct claims outside the framework of the bankruptcy case
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Nikita Kasterin The Right of Revocation: Commentary to Article 1269 of the Civil Code of the Russian Federation
This commentary on Article 1269 of the Civil Code of the Russian Federation, titled ‘Right of Revocation,’ explores the historical development of this right in Russia, highlighting the trend towards its limitation. The paper delves into the legal nature, mechanisms for exercising and protecting this right, and the legislative restrictions imposed on it. The author concludes that the right of revocation is a secondary right, exercised through the unilateral cancellation of a contract, and notes a significant difference in the legal regulation of this right between Russia and other countries. The article critically examines the reasons behind the imposition of restrictions on the right of revocation and evaluates their current relevance and appropriateness.
Keywords: right of revocation, secundary right, author, disclosure of work, unilateral refusal
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Ismail Khalifaev Multiple Derivative Claims: A Comparative Study in the Russian Context
This article provides an in-depth analysis of the feasibility of employing multiple derivative claims within the corporate relations of business companies in Russia. The author examines case studies adjudicated by the highest courts to analyze the Russian legal system’s stance on this matter, comparing it with approaches in foreign legal systems. Critiquing the Russian legal framework for its prohibition of multiple derivative claims, the article suggests an alternative solution for parent company participants to address issues in a subsidiary due to opportunistic behavior: seeking damages from the parent company’s sole executive body. Additionally, the author discusses related topics, including the right to information and the statute of limitations in these contexts.
Keywords: derivative claims, multiple derivative claims, claims through the ‘head’
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Mikhail Chuprikov Compensation for Property Excluded from Insolvency Estate: A Review of Legal Practice
Generally, when a debtor is declared bankrupt, all his property is included in the insolvency estate. However, there are notable exceptions, such as the prohibition against including certain properties withdrawn from circulation, like state or municipal water supply and sanitation facilities, in the insolvency estate. Higher courts have provided guidelines that allow for the collection of compensation from the owners of such properties for the diminution of the insolvency estate. This article examines judicial practice in these cases: – Compensation is most commonly sought for water supply and sanitation system assets. There are instances where courts have awarded compensation for heating system facilities, though this is in contradiction with the directions of the Supreme Court of the Russian Federation. – Courts typically base compensation on book value, residual value, or market value. It’s essential that courts consider the actual value of these assets and ensure that creditors’ legitimate interests are protected, enabling them to recover their claims against the debtor. – Forensic analyses play a pivotal role in these disputes, providing objective data about the physical condition, operational status, and wear level of the assets. This article represents the first comprehensive review of judicial practices in this area, offering significant insights into the handling of compensation for properties not included in insolvency estates.
Keywords: bankruptcy, water supply and sanitation facilities, insolvency, insolvency estate, property that is not subject
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