ARCHIVE FOR 2024 RUSSIAN
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Октябрь 2024
CONTENT
Chief editor’s column
Interview of the issue
Topic of the issue
A.N. Latyev Limits and Forms of Private Autonomy in Neighbours’ Relations The article examines the possibility of regulating neighbours’
relations by concluding private agreements between owners; the
permissible limits of such regulation, as well as the legal forms in
which it is possible, are assessed. It is shown that private agreements
in neighbours’ relations can lead to both the establishment of a
limited property right — an easement, and to the emergence of
obligatory and quasi-corporate relations. The pros and cons of each
of the options for organising the relationship between the parties are assessed, and problems arising due to the insufficient development
of the regulation of neighbours’ relations in Russian civil law are
demonstrated.
Keywords:
neighbour law, real estate, easements, follo wing right, opposition, registration, common property, meeting decision
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M.V. Shavaleev Ways to Improve the Legal Regulation of Neighbour’s Rights in the Russian Legislation The author analyses civil-law restrictions of the property right of the
owner of real estate, legislatively outlining his legal powers in favour
of neighbours and thereby establishing the limit of the owner’s
powers in the use of his property. Due to the absence of rules of
neighbour law in the Russian civil legislation, special attention is
paid to the comparative analysis of developed foreign legal orders.
The purpose of the study is to find ways to improve the legal
regulation of neighbour’s rights in the Russian legislation, to
overcome the general lack of system and fragmentation of legal
provisions in the sphere of neighbours’ relations.
Keywords:
civil-law restrictions of the property right, limit of the owner’s powers, neighbour’s rights
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D.A. Monakhov Rights In Rem Mechanisms in the Adjoining Landowners Rights The author analyses adjoining landowners rights regulation within in
rem legal framework. Adjoining landowners rights and obligations,
reciprocal by default, publicly establish the limits of landowner’s right
in use of his property. Landownership law regulation considered to
be necessary in every legal system desiring to regulate relations in
the sphere of property ownership and Russian legal system, still
lacking this legal mechanism, is not an exclusion.
In addition to the adjoining landowners rights per se, the article
explores related legal mechanisms that allow adjoining property
owners to change established limits of the legally protected
ownership rights by means of private agreements, changing the
volume of their rights, or even waiving of them.
It is shown that private servitude can be the only legally appropriate
mechanism solidifying the change in the volume of property rights. Thus, improving the regulation of adjoining landowners rights in the
domestic legal system requires reconsidering role of the servitude law,
its further development on the basis of more developed legal systems’
experience. That also means a return to Russian pre-revolutionary legal
roots and reestablishment of legal mechanisms known from that times.
The purpose of the study is to put forward proposals for a
comprehensive reformation of adjoining landowners rights regulation.
Keywords:
the adjoining landowners rights, property right restrictions, landownership limits, servitudes, negative servitudes, private nuisance
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T.S. Krasnova Negatory Action as a Way to Decide Neighbour Cases On the ground of a model situation the author looks at a negatory
action as a way to decide neighbour cases. In particular, several
issues of active and passive legitimation under a negatory action,
causes for filing and upholding a negatory action are discussed.
The author also focuses on the need to distinguish a negatory action
from a tort action and an action for the establishing of the land plots
boundaries. Thus, the theoretical material is refracted through the
prism of a specific case.
Keywords:
negatory action, neighbour case, right of ownership, protection of a right of ownership, land plot
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E.A. Barabina The Right of Access: An Easement or A NEIGHBOUR’S Access Right? The article analyses the right of access: the right of passage and the
right of connection (flow) of resources.
It is hypothesised that the right of access is not a separate
subjective right but an entitlement, i.e. an element of the title
under which real estate is used, which allows the right of access
to be classified, along with mutual rights (permissible emmission
rights), as a category of neighbour’s rights. Since the right of access
follows from the very title to one’s property, it does not require the
establishment of a limited property right over another’s property.
The category of access rights is distinguished from related legal
constructs involving interaction with others’ property: on one hand,
behavioural possibilities provided by public law, which do not imply
any subjective rights (such as public easements); on the other hand,
limited property rights, which are independent subjective rights.
It is proposed to distinguish easements from the right of access
based on the origin, derived from the level of satisfied needs.
Neighbour’s access rights are intended to meet the needs of the right
holder without which their right would become nominal, therefore
the right of access should not require any additional procedures
(obtaining consent or a court decision, which would leave the right
nominal during the waiting period). The right of access stems from
the title but may be expressed by the law as the limits of ownership rights to neighbouring real estate (pre-revolutionary Russia,
Germany). An easement as a subjective property right is proposed
to be viewed as an adaptation of legal relations to the interests of
specific neighbours, shifting the boundary of what is permissible by
law towards greater (easement of convenience) or lesser (negative
easement) impact.
Keywords:
right of access, right of passage, right of connection, neighbour’s rights, property
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A.A. Shcherbakov Neighbours’ Interventions under German and Swiss Law This article analyses the neighbour law in the law of Germany and
Switzerland with the question of borrowing foreign experience in
Russia. For this purpose, the classification of neighbours’ interventions
is examined in detail. Each type is considered in the context of foreign
doctrine and judicial practice, its impact on the balance of interests
of neighbours and the state is studied, and a conclusion is made
about the necessity or lack thereof for potential borrowing in Russia.
Also important terms and principles accompanying neighbourly
relations are analysed: materiality of interference, economic feasibility
of measures to reduce harmful effects, the principle of good
neighbours in the context of cohabitation. The ways of protection of
the owner’s rights against them are considered, among which there
are negatory action, tort action, challenging the decision of a public
authority, compensation action. As a result of the study, the following
conclusions are drawn. Not all types of interference in the right of
ownership by a neighbour could be relevant in Russia, in particular
intangible (affecting the value of real estate without direct interference
in use) and aggregate interferences (from several sources and issuers)
are applied in Germany with great difficulty (most often only reaching
the Supreme Court), but positive (physical) interferences and negative
(interfering in use without direct physical interference), taking into
account the text of the draft reform of the Civil Code of the Russian
Federation (where they are indirectly taken into account) would be
important in the future and could find a place in the legal system of the
Russian Federation.
Keywords:
neighbour’s rights, German neighbour law, Swiss neighbour law, balance of private and public interests, restrictions on property rights, negative interference, non-material (ideal) interference, materiality of interference, negatory action
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Legal Chronicle October Chronicle offers comments on the Durov case (from the perspective of Information
Law), the draft law on notarisation of real estate transactions, the law on expanding the grounds
for suspending criminal proceedings, the cancellation of preventive measures and exemption
from criminal liability for persons who have expressed a desire to join the military service under
contract, as well as the second law, the adoption of which continued the reform of the Russian
tax system.
Keywords:
Durov case, Information Law, social networks, notarisation of transactions, suspension of criminal proceedings, tax reforms
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Press Release
Theory and practice
A.V. Kiselev Negative Easements and Real Obligations: Choosing a Preferred Model The article analyses the legal regulation of real obligations, easements
and other mechanisms that provide the property of adherence for
the agreement of owners of adjacent land plots establishing the
prohibition to carry out this or that activity on the plot. The author
sets the task to identify effective mechanisms allowing to give the
property of following the contractual prohibition to carry out activities
on the neighbouring plot. The author notes the insufficiency of the
existing constructions in the Russian law to satisfy the interests of
the participants of the turnover, and substantiates the necessity
to develop negative easements or real obligations as a model of
regulation. The author notes that it is preferable to introduce both
constructions into Russian law because of the different purposes for
which they can be used.
Keywords:
negative easements, real obligations, obligations in rem, succession property
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R.A. Budnik, M.O. Zverev Legal Analysis of Play-To-Earn Videogames The purpose of this study is to provide an in-depth legal analysis of
the phenomenon of profitable video games, the copyright holders
of which, unlike the owners of online computer games of previous
generations, recognise the copyright of users in the works created
or processed by them, and provide players with the opportunity
to dispose of their intellectual rights to make a profit. The work
employs scientific methods to analyse contentious relationships in
the legal aspects of profitable video games and compares different
approaches to their regulation. The fundamental legal differences in
the conditions for using free and profitable video games have been
identified and analysed. The paper provides the systematisation
and discloses the legal nature of methods players use to generate
income within network computer games. The research discovers
the legal, organisational, and economic reasons and risks leading
to the non-recognition of user copyrights and the imposition of a
ban on their disposal by copyright holders of free video games.
A mechanism has been discovered and disclosed that allowed
the owners of profitable video games to eliminate intellectual
and legal risks, recognise gamers’ copyrights to the works they
created and launch the legal circulation of rights to them. The work
analyses the model for using the blockchain infrastructure and
non-fungible tokens as its elements for fixing and disposing of
rights to user-generated gaming artefacts. The smart contract as
the legal instrument of blockchain platforms is critically analysed.
Authors made their proposals to improve the legal efficiency of a
smart contract by adding a system of standard public licenses. The
scientific novelty of the work lies in explaining the legal nature of
the phenomenon of profitable video games and the mechanism
for disposing of copyrights within them, as well as in proving the
absence of identity between a profitable video game and such an
object of special regulation as gambling. The practical significance
of the article consists in the applicability of its results for improving
the legal regulation in the context of the complication of the
ecosystem, the growth of the market and the scale of the audience
of online computer games.
Keywords:
intellectual rights of computer game users, gamers’ copyright, gaming, license agreement, play-to-earn games, profitable video games, free-to-play games, digital rights, gaming artifacts, gaming items
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A.M. Nalgiev Burden of Proof of Negative Facts in the Practice of International Courts and Tribunals: What Does the Consideration of Ukraine’s Claim in the Allegation of Genocide Case has in Store for Us? On 2 February 2024 the International Court of Justice delivered its
judgment in Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide (Ukraine v.
Russian Federation), where it established its jurisdiction in relation to
Ukraine’s claim requesting the Court to declare that there is no credible
evidence that Ukraine is responsible for committing genocide in DPR
and LPR. In his declaration, Judge Tomka notes that the unusual
form in which Ukraine’s submission is framed raises the problem of
the allocation of the burden of proving negative facts. Judge Tomka invites the parties to express their views on this fundamental question,
considering the contradictory approaches in the Court’s jurisprudence.
This article constitutes an attempt to suggest what the Court’s
approach to the allocation of the burden of proof at the merits stage
of the proceedings may be in light of the practice of the Court, other
international courts and tribunals and international legal scholarship.
Keywords:
International Court of Justice, international justice, negative facts, burden of proof, international law
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M.A. Uspenskiy Cryptocurrency as a Property Right Russian legislation has long known the definition of digital currency,
but for now no consensus has been reached on its true civil nature,
thus complicating the development of a comfortable legal environment
for the blockchain industry. In the course of fundamental scientific
research, the author has conducted a public scientific field-study
involving top digital lawyers and technical experts in cryptocurrency,
which allowed to consolidate the viewpoints within the professional
community and to thoroughly examine the arguments presented by
opponents of bitcoin’s qualification as a property right. As a result
of the experiment, the main arguments against the recognition of
cryptocurrencies as property rights have been disproven, providing
for an opportunity to outline a comfortable legal framework for
cryptocurrencies in continental legal systems
Keywords:
cryptocurrency, blockchain, bitcoin, digital currencу, property right, obligations
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A.S. Popelyuk Compulsory Employment as a Criteria for Debt Relief The article analyses the problem of whether a citizen deserves
freedom from debt. The author has analysed German law on the
issue of a debtor’s obligation to earn money and Russian judicial
practice of refusing to release debts due to refusal to work or
concealing income and comes to the conclusion that the inclusion
of such a basis for non-exemption is permissible based on the
interpretation of the standard of an honest citizen-debtor, but its
acceptance is primarily a political issue.
Keywords:
debt relief, malicious evasion of repayment, earned start, honest citizen-debtor, employment, work
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N.А. Kasterin Copyright Immunity: Past, Present, Future The article analyses two cases considered by the Governing
Senate in 1913 with the participation of the famous novelist and
playwright I.N. Potapenko, who fell into bankruptcy: 1) the case
on contestation by the bankruptcy administration of the insolvent
I.N. Potapenko of the contract between I.N. Potapenko and
L. Marks and 2) on the recognition of V.V. Stepanov as the right
holder of the plays “The Grifter” and “The Old Master”. The author
reconstructs the contemporary discourse on the issue of copyright
immunity, demonstrating the ambiguity of the adopted legislative
decision. Based on the motives of the cases considered by the
Senate, taking into account the positions of pre-revolutionary
jurists and trends in the development of modern domestic
copyright law, the author reflects on the need to preserve absolute
copyright immunity and the possibility of its revision in modern
Russian law.
Keywords:
executive immunity, copyright, Governing Senate, bankruptcy
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