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ARCHIVE FOR 2025    RUSSIAN

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Январь 2025

CONTENT

 

 

Andrey Demichev Legal Nature of an Agreement to Remove a Linear Facility from a Development Spot
Case Comment to the Judgment of the Judicial Chamber for Economic Disputes of the SC RF No. 305-ЭС22-21449, 2 March 2023 The article deals with the peculiarities of the legal nature of an agreement on the relocation of a linear facility. It was inspired by the judgment of the Judicial Chamber for Economic Disputes of the Supreme Court of the Russian Federation of March 2, 2023 No. 305-ЭС22-21449. The article argues that the agreement, the determination of the legal nature of which was the subject of a court dispute, is an undesignated contract (clause 2 of art. 421 of the Civil Code of the Russian Federation) with a special causa, different from the causa of a contract of work. The peculiarities of the ownership right in respect of engineering networks and their legal regime as an object of law are analysed, taking into account the common in practice relations on ‘removal of networks from the development spot’ and the attempt to introduce into the legislation the corresponding positive regulation of these relations (art. 52.2 of the Civil Code). Also within the framework of the analysis of the motives of the commented judicial act the possibility of using the method of interpretation contra proferentem in determining the legal nature of the contract is questioned.
Keywords: ownership right, object of right, unnamed contract, public contract, transaction causa, contract interpretation, contra proferentem
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Polina Lomakina Transformation of Joint Obligations of Spouses into Personal Ones as a Result of Bankruptcy
Case Comment to the Judgment of the Judicial Chamber for Economic Disputes of the SC RF No. 306-ЭС23-26737, 20 May 2024 The author considers judicial practice on the issue of recognising spouses’ obligations as joint including the contradictory approaches of the courts to the presumption of the general nature of spouses’ debts and the transfer of the burden of proof of the joint nature of obligations from spouses to creditors. In addition, she considers the revolutionary theory of transforming joint obligations into personal ones after one of the spouses is declared bankrupt, put forward by the Supreme Court of the Russian Federation. The author proves the danger of this theory and shows the possibility of resolving the issues facing the Supreme Court using mechanisms already known to our legal system.
Keywords: joint obligations of spouses, burden of proof, bankruptcy
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Aleksandr Ananev Rental Сontract from the Point of View of the Doctrine of Dispositional Legal Acts
If legal order admits legal act as a special legal institution, it has to evaluate each private law institution (especially contracts) from the point of view of this theory. Moreover, legal orders should do such evaluations applying all the instruments provided by the theory of legal acts. In particular, rental contracts should be evaluated in such a way. The study on dispositional legal acts presents a variety of answers describing the nature of legal relations caused by rental contracts. This paper aimed to reveal if rental contracts cause dispositional effect. The conducted research presents that modern regulation of rental contracts including especially the emptio non tollit locatum principle and regulation of subrental contracts reveal not only obligational but also dispositional nature of rental contracts.
Keywords: rental contract, subrental contract, emptio non tollit locatum principle, dispositional legal act, disposition, right to dispose
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Vladislav Kostko Set-off in Insolvency: The Significance of Fiction, Retroactivity, and Connection of Claims in the Context of Challenging Set-off in French and Russian Law
The article examines issues related to insolvency set-off. A critical perspective is proposed on existing approaches that allow set-off in bankruptcy. The author suggests focusing on the development of French doctrine, as the 2016 reform saw a surge in theoretical discussions about the admissibility of setoff in bankruptcy, a trend also notable in domestic doctrine. Furthermore, there are grounds to believe that the balance (saldo) concept used by the Supreme Court of Russian Federation has its roots in the French legal notion of connected claims setoff. The article argues that the setoff of connected claims lacks proper justification, and its specifics do not explain why such a setoff should be allowed in bankruptcy. It also questions the very idea of needing to expand the permissibility of setoff, given that it would inevitably breach the principle of equal treatment of creditors. The author concludes that as an independent concept, the setoff of connected claims is possible only in exceptional cases, such as when a claim is used to determine the amount of a counterclaim (for example, the recovery of costs for rectifying defects resulting from work); in other cases, balance (saldo) includes both ordinary setoff and structures where no counter monetary obligations are assumed; the proposal to challenge the setoff based on its legal consequences and retroactive effect is controversial and cannot be accepted.
Keywords: compensation (set-off), set-off of related debts, insolvency, retroactivity of set-off, balancing (saldo)
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Ivan Brikulskiy Be Realistic, Demand the Impossible: Challenges in the Application of Compensatory Mechanisms of Constitutional Justice
Compensatory mechanisms are applied by the Constitutional Court when a review of the case following the judgment of the Constitutional Court cannot result in a full restoration of rights. Compensation could be utilised as an alternative to the case review. However, its regulation is limited to mentioning in the Law on the Constitutional Court. The law enforcement practice of ordinary courts on compensatory mechanisms is contradictory and unstable, even despite a number of legal guidelines of the Constitutional Court of the Russian Federation on this issue. The law enforcer does not have a systematic understanding of the nature of compensatory mechanisms as not only an alternative, but also an equivalent instrument of protection and restoration of violated constitutional rights. The formal approach of the ordinary courts leads to the fact that compensatory mechanisms are considered rather narrowly through the prism of civil compensation, the applicant is forced to repeatedly prove the harm caused to him, the causal link and the guilt of the state body. As a result, the mandatory nature of judgments of the Constitutional Court is questioned, the amount of compensatory mechanisms is significantly and unreasonably reduced, the bad faith of the applicant is presumed, therefore, the right to compensatory mechanisms becomes theoretical and illusory. The author refers to the practice of the Constitutional Court, law enforcement practice, decisions of a number of constitutional courts of Europe, applying similar compensatory instruments, international law and offers his view on potential criteria that can be used by the ordinary courts to assess compensatory mechanisms.
Keywords: constitutional justice, compensatory mechanisms, compensation, compensation for damages, Constitutional Court of the Russian Federation
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Anton Ilyin Procedural Singular Succession and the Zeitgeist
In judicial practice, the idea prevailed to require, in order to carry out a procedural singular succession, the consent of the original plaintiff (assignor, creditor) to replace him with a legal successor (assignee, guarantor, who fulfilled the obligation). The reasons for this approach, apparently, are the need to overcome a possible dispute between them about the existence of grounds for succession. The ambiguity of the procedural rules governing succession in general also contributes, but especially in cases of invalidity of the contract underlying the singular succession, or termination of this contract in the future. In the article, I reveal the procedural mechanics of the implementation of singular succession. The work also examines the construction proposed by the Supreme Court, which allows overcoming the will of the legal successor, who does not want to allow the legal successor to participate in the process, through the introduction of a new dispute into the process on the grounds of succession at the claim of a third party claiming independent claims regarding the subject of the dispute.
Keywords: singular succession, assignment, surety, invalidity of transactions, termination of the contract
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Ivan Chuprunov Effect of Liquidation of the Debtor on Suretyship or Pledge Given by a Third Party: On the Problem of the Permissive Conduct of a Creditor
The article discusses how the exclusion of a debtor from the Unified State Register of Legal Entities affects a surety or pledge given by a third party to secure its obligations. The author criticises the Russian approach to solving this problem, according to which a creditor must necessarily assert its claim against the debtor before its exclusion from the register on pain of complete termination of the secured claim (the second sentence of art. 367(1) of the Civil Code). Alternatively, it is proposed to interpret the prescriptions of positive law in such a way that the said right of claim is terminated only to the extent that the unreasonable connivance of the creditor has worsened the position of the third party that provided the security (guarantor or pledgee).
Keywords: liquidation, termination of obligation, surety, pledge
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Anastasia Ogibalova Compulsory Redemption of Immovable Property in the Public Interest
The article is devoted to a comparative legal analysis on the Russian ‘Buyout of a Land Parcel for State and Municipal Needs’ (art. 279 of the Russian Civil Code) and the American ‘eminent domain’. Eminent domain is a legal institution through which the state or a private person buys out private property for compensation in the public benefits. The article attempts to answer the questions that are not unambiguously answered in Russian and foreign doctrine, namely: in what case it is possible to compromise the rights of the owner, and whether it is permissible in principle; what conditions should be observed in the case of forced redemption; how to determine a fair amount of compensation. The structure of the article consists of two chapters, the first of which is devoted to the study of the grounds for compulsory redemption, the second of which is devoted to the calculation of compensation to the real estate owner. The purpose of the article is to theorise the institute of eminent domain, that has by far been little explored in Russia, and formulate specific proposals to improve the Russian legislation and judicial practice in this area. As a result, the author comes to the following conclusions: – despite the fact that eminent domain carries a large number of risks, in some cases its application is necessary; – when deciding on the possibility of eminent domain, the court should pay attention to the following grounds: availability of public benefits; compensation of property owners; legislative regulation of compulsory redemption; compliance with the pre-trial and judicial procedure; information awareness of property owners; – when calculating compensation to property owners, in addition to the market value of the property and the losses caused by the redemption, the so-called ‘coercion fee’ should be compensated.
Keywords: eminent domain, public benefits, compensation to property owners
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