Журнал ЗАКОН

Case Comment to the Judgment of the Judicial Chamber for Economic Disputes of the SC RF No. 305-ЭС24-13688, 22 November 2024 The article analyses two questions. Firstly, whether there are grounds to consider that the lessee is subject to the risk of accidental destruction of the object or impossibility to use it if he has transferred the thing into an unagreed sublease. Secondly, whether the lessee forfeits the right to rent reduction if he has not informed the lessor about impossibility of using the object.

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Keywords: lease, risk of accidental destruction, price reduction

The article presents an analysis of the historical development and the current state of forms of dematerialisation of equity securities under German law. The dematerialisation of securities in Germany was preceded by the process of immobilisation, whereby paper certificates were delivered for collective storage in the central depository, as well as the issuance of global certificates. The complete abandonment of the issuance of government bond certificates and their replacement by entries in a special debt register occurred in the mid-twentieth century. A noteworthy recent development has been the legal recognition of electronic securities, which has been met with ambivalence. The author analyses the legal regulation of the dematerialisation of securities, as well as the relations of ownership and possession of these objects. Despite the rejection of paper certificates for securities, the right in rem continues to play a leading role in the legal regulation of these intangible assets.

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Keywords: securities, dematerialisation, electronic securities, valuable rights, uncertificated securities

The article considers the possibility of concluding an agreement the subject of which is the third party action, the promise of the action of third parties. The author presents Belgian and French legislation as an example of the possibility of such an agreement, it is a porte-fort agreement. Russian law does not have such an institution, so the article proposes to develop a unified terminology to define the parties involved in this type of agreement based on the mentioned jurisdictions. The article considers various types of porte-fort agreement, the history of its legislative regulation and the dynamics of its content. The paper argues that the promise of third party action is possible and does not cause any obligations before the creditor from such third parties themselves; that the porte-fort agreement obliges the porte-fort (promisor); the obligation of the porte-fort is an autonomous obligation to do, aimed at achieving the promised result.

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Keywords: promise of third party action, porte-fort, porte-fort agreement, ratification, autonomous obligation, obligation to achieve a result, obligation to do, guarantee, risk coverage

The article analyses the problem of choosing between two bona fide parties — creditor and debtor — when the debtor has performed an obligation to a pseudo-creditor. Two approaches to its solution are considered: appearance of rights (doctrine of appearance) and risk allocation. A comparative analysis of these approaches is conducted, evaluating their respective advantages and disadvantages. In the final part the judicial practice of higher instances, in particular the decisions of the Supreme Court of the Russian Federation, concerning the issues of fulfilment of obligations to an improper person is investigated.

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Keywords: visibility of right, good faith, fulfilment of obligation, pseudo-creditor, risk distribution, judicial practice, Supreme Court of the Russian Federation

Using the example of the amendments introduced into bankruptcy legislation by Federal Law No. 107-FZ of May 29, 2024, “On Amendments to the Federal Law ‘On Insolvency (Bankruptcy)’ and Article 223 of the Arbitration Procedure Code of the Russian Federation”, the author argues that the general concept of procedural law should be revised to allow judges greater discretion in determining the procedural framework for a case, taking into account its legal and factual complexity.

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Keywords: case management, separate dispute in a bankruptcy case, establishment of creditors’ claims, summary proceedings, order proceedings

The rule that waiver of the right to access the courts is invalid is traditional. However, it has no constitutional, dogmatic, or political-legal justification. The development of legal tools and the needs of turnover require permission to waive the right to appeal to the court both in advance before and outside the process, and at the conclusion of a settlement agreement in the case. The article provides arguments in favor of this position. The author provides a detailed analysis of the conditions under which a party may dispose of the right to access the courts.

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Keywords: the right to appeal to the court, the right to file a claim, waiver, administrative actions

A distinctive feature of Russian contract law is the presence of extensive regulation devoted to subcontracts. Despite this, there is a lack of doctrinal understanding of such an institution as a subcontract. This article seeks to fill this doctrinal gap by systematizing the types of contracts under the Civil Code that may give rise to subcontracts. Thus, it identifies two models by which subcontracts can be constructed and the characteristic features inherent both in all contracts and in particular models of subcontracts.

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Keywords: subcontract, head contract, principle of relativity of obligations, assistant in performance, dispositional power, invalidity