ARCHIVE FOR 2024 RUSSIAN
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Октябрь 2024
CONTENT
Radislav Repin, Alexander Diatko On fiducia cum amico (Not for the Purpose of Security) Reflections in Connection with the Judgment of the Judicial Chamber on Economic Disputes
of the SC RF of 6 March 2024 No. 305-ЭС20-20127 (20)
In this article, in the light of the infamous Balayan case, the authors examine the institution of fiducia cum amico
(fiduciary possession of the right not for security purposes), assess the admissibility of its application in Russia,
appealing to some historical and comparative legal data. The authors reach the conclusion that within the Russian
private law system the fiduciary holder is a full-fledged owner of the asset received from the fiduciary (transferor).
All specificity is manifested only at the personal, obligatory level — the obligatory connection requires the fiduciary
to target his full right of possession. In addition, the fiduciary’s right of possession not for the purpose of security,
although partially duplicates the socio-economic function of typified institutions (deposit, commission, loan, etc.),
still has an independent role and is currently regarded as a non-defind binding contract.
Keywords:
fiducia, fiducia cum amico, causa, ownership, obligation
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Daniil Shalyaev The Doctrine of Simulative Transactions and the Balayan Case Case Comment to the Judgment of the Judicial Chamber for Economic Disputes of the SC RF
No. 305-ЭС20-20127 (20), 6 March 2024
The article deals with the general doctrine of simulative transactions and its application in the context
of the Judgment of the Supreme Court in the Balayan case. The classical German doctrine of simulation of
the 19th century is analysed. Based on the developments of late Pandectists and modern German doctrines,
a distinction is made between imaginary and feigned transactions, as well as between fiduciary transactions and
transactions aimed at circumventing the law. In addition, various options for qualifying the re-registration of real
estate to a fictitious person under Russian law are considered, as well as the issue of applying the limitation period
for various qualification options.
Keywords:
simulative transactions, acquisition of real estate through a figurehead, Balayan case
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FREE TRIBUNE
Ilia Shevchenko Challenging Procedural Acts on Bankruptcy Grounds The author supports the approach developed in the ruling of the Supreme Court of the Russian Federation on
June 24, 2021, No. 305-ЭС21-1766 which states that procedural acts violating the rights of creditors of a bankrupt
shall be challenged by appeals with general appeal procedure outlined by the law. Despite this approach, the
author argues that the general rule of relative opposability of court decisions should still hold true.
Keywords:
challenging transactions on bankruptcy grounds, procedural acts, opposability of court decisions
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Dmitrii Malbin The Place of the Protection of a bona fide Purchaser in the Civil Law System The protection of a bona fide purchaser, having arisen as a mechanism for limiting vindication, is one of the
grounds for acquiring property rights. Even not some would argue that the bona fide purchase of a thing is only
a defense to a claim in vindication. The reason for maintaining such a belief is primarily related to the location of
the general conditions for the protection of a bona fide purchaser in close proximity to the institute of a vindication
claim in Chapter 20 of the Civil Code of the Russian Federation devoted to the protection of proprietary rights.
However, this arrangement of legal norms is predetermined by the peculiarities of the origin of the institution of
protection of a bona fide purchaser. The preservation of this opinion is also facilitated by not always accurate
legislative changes on the protection of a bona fide purchaser. Legal science recognises the bona fide purchase of
a thing as the initial method of acquiring a right. However, the initial nature of the acquisition of the right in this case
is at odds with the idea of protecting civil turnover, which became the reason for the emergence of the institution
of protection of a bona fide purchaser. The protection of civil turnover is provided not in the interests of a bona
fide purchaser alone, but in favor of all its participants who are interested in maintaining legal ties, stability of legal
relations and predictability of legal consequences, therefore, a consistent decision would be to preserve existing
rights to a thing when a bona fide purchaser acquires ownership rights to it.
Keywords:
property right, vindication claim, bona fide purchaser, initial method of acquiring the right, derivative method of acquiring the right
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Alexey Akuzhinov Disgorgement of Profits of a Director and Its Affiliates for Breach of Fiduciary Duties (Part 1) The article is devoted to the policy and comparative legal analysis of the application of disgorgement of profi ts to cases of
breach of fi duciary duties by a director of a legal entity. Disgorgement of profi ts is a remedy that allows a person who has
suff ered a violation of a right to recover from the wrongdoer the profi ts received by the latter because of the wrongdoing.
The article is divided into six parts to be published consecutively in three issues of the journal. The fi rst three parts of the
article are published in this issue. In the initial section, I delineate the content of a director’s obligation to act in good
faith and with due care in Russian law [I]. I then demonstrate that, based on international and domestic precedent, the
recovery of income can be regarded as a sui generis remedy, which does not necessitate damage to the aggrieved party.
In Russia, this remedy is provided for by Article 15 (2) (2) of the Civil Code of the RF [II]. Subsequently, two potential
policy-legal justifi cations for the recovery of profi ts from a director are presented: deterrence and corrective justice [III].
Keywords:
account of profits, constructive trust, disgorgement of profits, loss of profits, fiduciary duties, tortious interference
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Ivan Chuprunov Simulative Transactions. Part 2: Analysis of the Balayan Case The second part of the article discusses the details of the Balayan case related to the possible qualification of the
relevant relations (including the possibility of recognising the disputed transactions as simulative), as well as the
applicability of the limitation period to the claims asserted by the plaintiff.
Keywords:
simulative transactions, sham transactions, limitation period, front person, fiduciary transactions, sham acquirer, sham owner
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