Журнал ЗАКОН

In the Russian Post-Soviet Civil Code, which was adopted in 1995, subjective good faith is the legal ground for acquisition of property rights and the remedy for protection of deals from invalidation. In Russian law objective good faith mostly starts to develop in judiciary practice of the Supreme Arbitrazh Court in the cases connected with the invalidation of deals and recovery of damages for formally legal but unscrupulous conduct. In 2014 the objective good faith as a general principle was added to the Civil Code (para 3 Art. 1). Also, several examples of good faith have been added to it, these examples were taken from the practice of the Supreme Arbitrazh Court, for example it is estoppel in the process of invalidation of deals (para 5 Art. 166). Besides it is precontractual liability (culpa in contrahendo, Art. 431.1) and waiver (paras 4–5 Art. 450.1) were included in the Code, these institutes were unknown to the Russian practice before. Author assumes that now Russian courts use the objective good faith usually in the spheres, where the good faith mentioned in the Civil Code — the pre-contractual liability, invalidation of the deals and termination of the contracts and they ignore good faith as a principle, through which the court may evaluate the conduct of a person. No examples where the Russian court used the objective good faith in the cases connected with the performance of the contract — no examples of using contractual duty of care, duty of loyalty, duty to cooperate. On the contrary, the practice of the European courts is riddled with such examples. Author supposed that codification in Russia characterises current times: after nearly thirty years of Post- Soviet codification the time enimical to judicial law-making has come. Good faith principle was developed only by judicial law-making because it is not the statutory one, but consists of the interpretations of the independent courts. This process came to a halt in August 2014 with the liquidation of the Supreme Arbitrazh Court: interpretations, which were created by this Court, are still widely used by other courts but no new stage of development has followed so far.

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Keywords: good faith principle, subjective good faith, not knowing nor having to know of a certain fact, objective good faith, standard of conduct, codification of a good faith, legal ground for acquisition of the right

The article analyses different types of legal entities enshrined in the current Civil Code of the Russian Federation and their division into commercial and non-commercial, as well as into corporate and unitary organisations. The historical peculiarities of the domestic systematisation of legal entities and its shortcomings are highlighted; the influence of Anglo-American corporate law on the modern development of the legal status of Russian business entities is noted. The peculiarities of the civil legal status of some new types of corporate legal entities (specialised organisations, business partnerships, etc.), as well as state corporations and public-law companies are described.

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Keywords: joint-stock company, Civil Code, civil legislation, commercial organisation, corporation, limited liability company, partnership, legal personality, enterprise, systematisation, partnership, unitary organisation, establishment, legal entity

The article analyses the approach of the Russian legislator to the concept of ‘real estate’ over the past 35 years since the return of the division of things into movable and immovable, reveals the advantages and disadvantages of Article 130 of the Civil Code in the dynamics of its development. In conclusion, the authors consider a possible change of approaches to the legislative regulation of the concept of ‘real estate’, based on the draft Section Two of the Civil Code in the wording finalised in 2019 under the guidance of the Council under the President of the Russian Federation on codification and improvement of civil legislation.

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Keywords: immovable things, single object, land plot, buildings and constructions, premises, parking space, enterprise, state registration of rights

The article analyses the dynamics of development of civil legislation in terms of regulation of real estate issues. The author comes to the conclusion that under the influence of public law legislation, reasonable changes were made to the Civil Code of the Russian Federation, while the concept of a real estate has not changed for thirty years, and this, in the author’s opinion, is also justified. In general, the author comes to the conclusion that despite diametrically opposed goals, in real estate matters, civil and public legislation coexist quite harmoniously.

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Keywords: real estate, civil-law transactions, part of real estate, improvement of land plot, state registration, part of land, construction project, tax object

The article examines the norms of the Civil Code on pledge from the point of view of assessing their peremptory or dispositive nature in the absence of a direct and unambiguous indication thereof. It is concluded that the provisions defining the essence of the right of pledge as a proprietary right are imperative and the provisions on the pledgee’s preferential right to receive certain sums of money and property received in exchange for the subject of pledge are dispositive. Special attention is paid to the analysis of a set of Code provisions (Art. 350.2 and Art. 447–449) on the procedure for bidding in the extrajudicial sale of the subject of pledge, and those which should be recognised as imperative and which the parties are not entitled to deviate from even by virtue of the general dispositiveness enshrined in Art. 350.1 of the Civil Code are highlighted.

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Keywords: imperative, dispositive, pledge, extrajudicial foreclosure, auction, auction, initial sale price

In connection with the thirtieth anniversary of Part One of the Civil Code of the Russian Federation, the author of the article proposes to look at the history of the development of Russian corporate law through the prism of competition between legal orders. The question is: to what extent has the Code in its different editions contributed to making Russian corporate law more convenient and business-oriented or, on the contrary, useless for its main consumers, that is, merchants? The paper periodises the creation and further development of Russian corporate law, showing how it was perceived by the Russian business community and legal practitioners, and how, at different stages of the Code’s development, it compared to competing foreign legal orders that offered different legal structures and jurisdiction for Russian businessmen.

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Keywords: competition of legal orders, regulatory arbitration, corporate law, freedom of contract in corporate law, dispositiveness

The article is devoted to the protection of the individual’s nonmaterial values, the model of personal right, the list of personal rights, transactions with an non-material values, the protection of constitutional rights through civil law measures, as well as other issues of the institution of personal rights.

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Keywords: personal rights, non-material values, transactions with an non-material values

The article analyses the history, current state and prospects of regulation of intangible assets in the Civil Code. First, the legislative history of Part One of the Civil Code (1991–1993) is described in detail in the context of the reflection in the Civil Code of the norms on intangible assets, personal non-property rights. Then the author shows what changes were made to the Civil Code regarding intangible assets, what ideas on this account are laid down in the Concept of Development of Civil Legislation of the Russian Federation (2009). Then the author critically evaluates in detail the current state of regulation of intangible assets specified in Art. 19, Ch. 8 of the Civil Code. The conclusion describes the prospects for improving the Civil Code with respect to intangible assets (expansion of civil rights objects by including personal non-property rights; expansion of Chapter 8 of the Civil Code by adding new articles; addition of Article 150 of the Civil Code with provisions on intangible assets and personal nonproperty rights of legal entities, public-law entities, etc.).

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Keywords: intangible benefits, personal non-property rights, honour, dignity, business reputation

The author has critically analysed various approaches to the question about digital property as a new category of private law. The author makes an attempt to predict what theoretical and practical problems could be solved if we adopted the concept of digital property in the civil law doctrine. However, his own conclusion is that property law should be preserved in its classical form. The term ‘property’ should not be applied to digital assets. At the same time, the author makes points proving the idea that the relationships connected with different digital assets are absolute legal relationships. In order to give accurate legal description for such legal relations, it is necessary to critically evaluate the existing approaches to absolute and relative legal relations in advance. They should be clarified in some context.

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Keywords: digital property, digital assets, digital rights, property law, intellectual property law, civil law principles, absolute right, relative right

Due to the emergence of a new type of asset in the Russian Federation — carbon units — it is necessary to develop unified approaches to its qualification from the point of view of the Civil Code of the Russian Federation. Current legislation and, in particular, the Federal Law of 2 July 2021 № 296-FZ “On limiting greenhouse gas emissions” does not specify to what type of objects of civil rights they belong. The authors consider the possibility of attributing carbon units, as well as other objects with a similar legal nature — emission fulfillment units, to property and property rights. The article analyses the approaches established in Russia as to determining the legal nature of emission reduction units, formed in the framework of Article 6 of the Kyoto Protocol to the UN Framework Convention on Climate Change, and the positions of the federal executive authorities.

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Keywords: carbon units, emission reduction units, emission fulfillment units, civil rights objects, Paris Agreement, Kyoto Protocol, limiting greenhouse gas emissions, greenhouse gases, climate change, global warming

In the January Chronicle you will find comments on the new provisions of the Criminal Code on the introduction of liability for illegal trafficking of personal data and on the exclusion of the application of Article 238 to the medical assistance by medical professionals, the draft Order of Roskomnadzor, requiring to identify user equipment and provide IP-addresses of end users, as well as changes in legislation aiming at the limitation of liability of developers from 1 January 2025 onwards.

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Keywords: liability of developers, criminal liability, illegal circulation of personal data, medical care, Roskomnadzor, control over access to websites, prohibited Internet resources

The domestic science of civil law offers only fragmentary solutions to certain practical and theoretical issues affecting the pre-emptive rights in rem. Due to the underdevelopment of real estate turnover in the domestic legal order, the pre-emptive right to purchase another person’s immovable property in practice turned out to be simply unknown as a proprietary right, although in the pre-revolutionary Russian doctrine this institute attracted sufficient attention. Only at the level of doctrine of pre-revolutionary times, as well as in the draft of the Civil Code were attempts made to incorporate the newly developed normative material of the German legal order (in terms of the development of the Vorkaufsrecht pre-emptive right of purchase) into the domestic civilistic systematics: in this regard, the right to acquire another’s real estate by analogy with German law was characterised as a real right. Currently, the reform of property rights in the Russian legal order involves another attempt to incorporate the German model of pre-emptive right of purchase. The purpose of this article is to understand the legal nature of the German model of pre-emptive right and the extent to which it is related to the stylistic peculiarities of the German legal order.

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Keywords: right to pre-emption, priority notice, external effect

Many organisations and individual entrepreneurs using the simplified taxation system have to learn the procedure for calculating and paying VAT. Taxpayers have the right to choose the VAT rate to be applied — standard or simplified. The author gives practical recommendations on the most optimal choice of the tax rate.

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Keywords: VAT, tax rate, simplified taxation system, tax optimisation

The article presents and systematises the results of a sample analysis of the final court rulings issued in cases of administrative offences consisting in public demonstration or propaganda of Nazi attributes or symbols, or attributes or symbols similar to Nazi to the degree of confusion, or attributes or symbols of extremist organisations, as well as other attributes, symbols, propaganda or public demonstration of which is prohibited by federal laws.

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Keywords: Nazi paraphernalia, Nazi symbols, extremist organisation’s paraphernalia, extremist organisation’s symbols, prevention of extremism, countering extremism, Article 20.3 of the Russian Code of Administrative Offences

Although an autonomous non-profit organisation (ANO) formally is classified by the Civil Code of the Russian Federation as a non-profit unitary organisation, it is considered in the article as an organisational and legal form of a legal entity possessing all the necessary characteristics of a non-profit corporation. To increase the efficiency of the activities of autonomous non-profit organisations, ensure the stability of civil turnover and implement the principle of fairness, it is advisable to introduce into the law a default rule on the proportional relationship between the volume of management rights of the founders of an autonomous non-profit organisation and the amount of property contributions made by them, as well as to legislatively regulate the turnover of these rights (“shares”), thereby completing the transformation of ANO into a “non-profit limited liability company”. Pending the amendment of the Civil Code of the Russian Federation and the Law on Non-Commercial Organisations in the absence of special provisions of the law defining the content of the rights and obligations of the founder of an autonomous non-profit organisation the provisions of Art. 65.2 of the Civil Code on the rights and obligations of participants in a corporation should apply by analogy with the legislation (clause 1 of Article 6 of the Civil Code).

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Keywords: autonomous non-profit organisation, unitary organisation, founder