Chief editor’s column
Interview of the issue
Topic of the issue
A.A. Yagelnitskiy Period of Limitations for Moral Damage In Russian law, by virtue of the interpretation of paragraph 2 of
Article 208 of the Civil Code, the statute of limitations does not
apply to claims for compensation for moral damage in case of
violation of personal non-property rights. The author examines
the predecessor rules and notes that a rule similar to the current
paragraph 2 of Article 208 appeared in the 1960s codifications,
which did not know the institution of compensation for moral
damage. Then, this rule was transferred with some changes to
the 1990s codifications, which introduced such compensation.
The author questions whether the introduction of a rule very
close to that of the 1960s codifications meants that the statute
of limitations did not apply to claims for compensation for moral
damage. The author questions the arguments put forward in
favor of not applying the statute of limitations to such claims,
and draws attention to the negative consequences of its nonapplication.
Keywords:
delicts, liability, pain and suffering, statute of limitations
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A.M. Erdelevskiy On the Approach of the Russian Supreme Court to Compensation for Moral Damage This article discusses a number of topical issues related to the use
of compensation for moral damage. These issues are considered in
connection with the correspondent court practice. In particular, the
presumption of moral damage in the case of committing any offense
is being considered. The conclusion is that, based on existing
legislation and materials of judicial practice, there are sufficient
grounds for such presumption.
Keywords:
moral damage, sufferings, compensation, size, presumption, offense, judicial practice, intangible benefits, non-property rights
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A.A. Gromov Compensation for Moral Damage in Case of Breach of Contractual Obligations In the Russian legal order, the scope of recovery of moral damage
directly depends on whether a property or non-property good is
affected by an unlawful action. In the former case, compensation
for moral harm is possible only if the relevant method of protection
is provided by law. In particular, a special rule is provided for in
Article 15 of the Consumer Rights Protection Law. By virtue of this
rule, courts almost automatically recover moral damages in case of
violation of consumer rights. Evaluation of the above legal decision
is the subject of the present article.
Keywords:
moral damage, consumer protection
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E.A. Evstigneev Restoration of the Discussion on the Possibility of Compensation for Moral Damage to a Legal Entity In this article, the author analyses the current situation of the
institution of compensation for moral damage to a legal entity.
The author examines historically established approaches to
compensation for moral damage to a legal entity and what changes
they have undergone at the present time. The author concludes that
there are no prerequisites for changing approaches to protecting the
intangible rights of legal entities and individual entrepreneurs, and
the current regulation is sufficient to protect the intangible rights of
victims. The author substantiates the position that the proposals put
forward to reform legislation in order to compensate for damage
to non-material rights belonging to legal entities and individual
entrepreneurs are based on a misinterpretation of the institution of
compensation for moral damage and incomplete coverage of the
means of protection provided by tort law. Based on the results of
the study, the author describes an algorithm for protecting the nonproperty
rights of legal entities and individual entrepreneurs within
the framework of current legislation, including the use of the institute
for compensation for moral damage, which provides full protection
in all cases of harm to the relevant rights.
Keywords:
compensation for moral damage, legal person, private entrepreneur, immaterial rights, reputational harm
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E.V. Gavrilov Compensation for Moral Damage to Individual Entrepreneurs in Russian law: Past, Present, Future The article analyses the history, current state and projected future
of compensation for moral harm to individual entrepreneurs in
Russian law. At first, the author notes that during the discussion
of the draft of Part One of the Civil Code and its adoption, the issue
of the right of individual entrepreneurs to compensation for moral
harm was not raised or discussed by anyone, and this right itself
was not challenged. The article further demonstrates the initial and
subsequent (2013–2022) court practice on compensation for moral
harm to individual entrepreneurs: some arbitrazh courts denied such
compensation, while others collected it. Then the latest legal views of
the Plenum of the Supreme Court of the Russian Federation and the
Constitutional Court of the Russian Federation on the compensation
of moral harm to the designated subjects of law are examined in
detail and in a critical manner. It follows from the explanations of
the higher courts that such compensation in the defence of business
reputation in the sphere of entrepreneurial activity is impossible. The study of modern judicial practice has shown that lower courts
take into account this interpretation. The author is of the opinion
that within the meaning of paragraph 1 of Article 151 of the Civil
Code, individual entrepreneurs are entitled to compensation for
moral damage in case of violation of their personal non-property
rights, in case of infringement of any intangible benefits belonging
to them (including business reputation), as well as in other cases
provided for by law. The conclusion describes the expected future
of compensation of moral harm to individual entrepreneurs in
Russian law.
Keywords:
moral harm, compensation, individual entrepreneurs, Civil Code of the Russian Federation, business reputation, intangible benefits, personal non-property rights
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P.G. Gabay On the Issue of Compensation of Moral Damage to Patients in Connection with the Provision of Medical Care of Inadequate Quality The article is devoted to the study of the problem of recovery of
compensation for moral damage caused as a result of medical
care. On the basis of the provisions of the legislation of the Russian
Federation and clarifications of the Supreme Court of the Russian
Federation disputes about substandard rendering of medical
services in the context of violation of the rights of consumers and in
the general order are differentiated, the grounds for compensation
of moral harm are elucidated, and also differences in distribution of
the burden of proof and conditions for satisfaction of claims of the
applicant are analysed.
Keywords:
quality of medical care, consumer protection, medical service, compensation for moral harm, causing harm to health
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Discussion Board
V.M. Zaripov Relationship between Contract Price and VAT: a New Formulation of an Old Problem When calculating VAT, a special method is used based on the
allocation of a certain part of the price as «taх». Such allocation
often leads to misunderstandings among participants of business turnover, specialists and law enforcers. A logical consequence
of this is the emergence of conflict situations, both between
counterparties and with state authorities, instability of economic
conditions, blurring of the boundaries of branches of law.
According to the author, to solve the problem it is necessary to
form civilistic views on the correlation and interrelation of civil and
tax phenomena in the collection of VAT.
Keywords:
price, VAT, method of tax calculation, freedom of contract, stability of civil turnover, subject of civil law, subject of tax law
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S.G. Pepeliaev How not to Return to the Colonial Model of Economic Consulting The article presents considerations about the reasons for the
flourishing of foreign consulting firms in the Russian market of legal
services during the last 30 years, the consequences of the departure
of foreign consulting after the imposition of sanctions and the
necessary conditions for the return of foreign consultants in Russia.
Keywords:
consulting services, law firm, law services, auditor, transnational company
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Legal Chronicle In the May Chronicle one may find expert comments on the law regarding the new budgetary
rule for the execution of court judgments, the position of the Constitutional Court on the legality
of raising court fees, the approach of the Supreme Court to the obligation to pay utility bills by
minor property owners and their parents and the limits of the amount of remuneration paid to the
management of the company.
Keywords:
budget, enforcement of court decisions, court fees, utility payments, minor property owner, joint and several obligations, remuneration of the company’s management, bonuses to employees
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Theory and practice
S.Yu. Sidelnikova Dividends: Payment and Restrictions The work offered to the reader’s attention is devoted to certain
issues of dividend payment: the form of payment, restrictions
on payment to a certain circle of persons formed by modern
situational regulation and the latest legislative changes. For more
than twenty years of experience in the field of corporate law, the
author has not encountered cases of payment of dividends in
non-monetary funds mainly in public companies, but she had to
study the issue and prepare conclusions on it for consideration of
such decisions by the owners of business. Scientific papers also
analyse this issue from time to time. And if everything is clear
with cash dividends (for simplicity, we will call dividend payments
in cash), then very controversial positions are expressed with
non-monetary ones, for example, about the possibility of paying
dividends with services.
The relevance of the work is given by the study of the legal nature
of the suspension of the shareholder’s right to a dividend. The
purpose of this work is to determine the types of property that
can be used for the purpose of paying dividends. In preparing the
work, the author set tasks to conduct a comprehensive economic
and (to a greater extent) legal study. She comes to the conclusion
that it is impossible to pay dividends with own shares, that such
shares have a special status of “potential” rights as an object of
civil rights.
Keywords:
form of dividend payment, business company, treasury shares, suspension of rights
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A.E. Dolgushin Fiction of Notification in International Civil Process: Legal Rudiment or Efficient Instrument? The circumstances existing nowadays effectively refute a
statement that the system of international legal assistance stays
on a way of linear progression. Many cases demonstrate a failure of international assistance, as the application of legal fictions
becomes more common. This article is an attempt to offer a
reasonable opinion on how to take an application of legal fiction
within a service of legal process abroad. Based on an analysis
of the origin and place of legal fiction, the author concludes that
the fiction of service of legal process is a way to level down an
existing standard of proof, which is aimed to keep the balance
between two constitutional rights: the right to judicial protection
on one hand and the right to be heard on the other hand. Each
state decides independently how low and in what way the
standard of proof should be set on its territory. But the problem
is to bring a different standard of different states in a correlation
within an international civil process. The lack of such correlation
may make a further recognition and enforcement impossible.
Therefore, it undermines the balance. Fiction of service of legal
process provided with an international treaty on a legal assistance
successfully mitigates such a risk. Legal fiction provided with
Hague Convention of 1965 is a relevant example. However high
chance to break a balance exist, when this type of relations is
not governed by an international treaty. In this case the court
has to decide whether the fiction of service of legal process is
applicable. The author believes that solutions proposed in this
article may help to keep to a minimum a possibility to upset the
balance between two important constitutional rights.
Keywords:
international civil process, service of legal process, legal fictions
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M.A. Revazov The Practice of Challenging Normative Legal Acts of Executive Power Due to Violation of the Procedure for Their Publication Official publication of a normative act is one of the most important
conditions for its existence and its ability to fulfil its regulatory
function. It is due to this procedure that the addressees of such
act have an opportunity to get acquainted with its text in order to
understand its content and further correlate their behavior with
the norms reflected in it. The obligation to publish normative legal
acts applies not only to legislation in the narrow sense, but also
to other normative acts, including normative legal acts of executive
authorities. This article analyses the current Russian court practice
on the issue of judicial assessment of violations of the order of
publication of such acts. The main arguments of the parties and
positions of courts are studied, numerous examples of lack of
uniformity of approaches in solving such cases are found.
Keywords:
official publication, administrative law, judicial practice, by-law, normative legal act
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P.A. Skoblikov Propaganda Bans. Analysing Some Trends and Defects of Modern Lawmaking The author addresses the problem of the growing volume of
legislative prohibitions, supported by administrative and criminal
penalties for non-compliance. The problem is examined on the
examples of bans on various kinds of propaganda; their grounds
and social consequences are analysed. It is shown how the
adoption of ill-conceived bans contributes to the redundancy
of normative-legal regulation for citizens and legal entities.
This, in turn, entails infringement of the rights and freedoms of
citizens, in particular, restrains the realisation of their creative
potential, limits the freedom of self-expression, deforms legal consciousness. At the same time, unproductive costs for
entrepreneurs and other economic entities are increasing. The
problem is aggravated by the uncertainty in the formulation of
prohibitions and the possibility of their wide interpretation. The
article reveals the negative practice of inclusion in administrative
and criminal legislation of norms on responsibility for new
offences without a proportional increase in the number of
staff of controlling, law enforcement and judicial bodies, as
well as without additional funding for their activities, which
leads to distortion of the declared objectives of legal policy,
creates preconditions for selective law enforcement, abuse and
corruption. Proposals for revision of existing prohibitions and
their restriction are substantiated, proposals for improving the
quality of draft federal laws aimed at changing administrative and
criminal legislation are analysed and clarified.
Keywords:
propaganda ban, family loneliness, punitive legal policy, regulatory redundancy, vagueness of legislative prohibitions, arbitrary law enforcement, selective liability, selective justice, extremism, corruption, scientific examination of draft laws
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O.Yu. Skvortsov State Capitalism and the Intervention of Public Law in Civil Legislation (using the example of special investment agreements) The article explores the question of how legal tools are used in
our state to implement the idea of state capitalism. Despite the
wide range of legal means by which the state directs budgetary
investments and private investments into the economy, the
authors focus on special investment agreements. These
contractual models are derived from the bosom of the Civil Code
of the Russian Federation and their regulation is enshrined in
special investment laws. Based on the analysis of these laws,
the author concludes that, despite declarative reservations about
the application of the norms of the Civil Code of the Russian
Federation to these contracts, the real regulation consists in the
formation of a new sphere of contract law based on imperative
principles that do not allow the parties to form contractual terms.
In this regard, the principle of freedom of contract in investment
relations with the participation of the state turns out to be a
declaration, since a private entity is free only in one thing: to
conclude an investment contract or not. Thus, when regulating
special investment agreements, there is an intervention of
public law norms in the field of civil legislation. Given the fact
that budgetary investments dominate the domestic economy,
there is reason to assert that with the help of special investment
agreements, the state implements the idea of state capitalism. At
the same time, such an economic policy, which is embodied in a
system of special investment laws introducing new contractual
models, leads to the need to recognise both at the doctrinal and law-making levels the formation of a system of “investment
contract law”, a fundamentally different contractual law enshrined
in the Civil Code. In this case, it will be possible to talk about the
effectiveness of regulation only if the “investment contract law”
formulates common principles, institutions and legal regimes
characteristic of this area of relations.
Keywords:
state capitalism, investments, budget investments, investment laws, special investment agreements, contract law, public law intervention, investment law
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P.S. Panova Application of the Position of the Court of the EAEU in Dispute Resolution by Arbitrazh Courts of the Russian Federation in Case “Transportation RuS” v. St. Petersburg Customs” The article analyses the approaches of Russian courts, including
the Supreme Court and the Constitutional Court, to the decisions
of the EAEU Court, a permanent body of the Union, of which the
Russian Federation is a member state. The EAEU member states
have undertaken to respect the Union’s law, which has a strict
hierarchy and is designed to meet the principles of legal certainty
and uniform application. The latter is largely ensured through
the work of the EAEU Court, which, in particular, in resolving a
dispute, establishes the conformity or inconsistency of a decision
adopted by the Commission of the Union with EAEU law. Business
entities of the member states have the right to initiate proceedings
in this category. There are situations when state bodies adopt
acts imposing additional obligations on them on the basis of
Commission acts: in such cases, companies have the possibility
to apply to national courts (in the Russian Federation — arbitrazh
courts) to challenge the act of a state body, and to the EAEU
Court to recognise the Commission’s act as inconsistent with
the law of the Union. The author analyses cases in which the
EEU Court has found the Commission’s rule to be unlawful and
whether such decisions of the Court have influenced the position
of national courts. A detailed review of the disputes involving
LLC Transportation Rus, as well as earlier disputes with a similar
background, is given. It is concluded that the national courts of
the Russian Federation have formed a strong opinion that it is
necessary to follow a formal temporal approach: even if the EEU
Court has ruled that the Commission’s norm is unlawful, it was in
force at the time of the decision of the state authority, and therefore
it can be used as a basis for its decision. The author believes that such a position may weaken the authority of the EEU Court and
examines how compatible it is with the provisions of the EEU Treaty
on the hierarchy of the Union’s law.
Keywords:
EAEU Court, EAEU law, res judicata, res interpretata, obligation erga omnes, economic entities, classification of goods under the EAEU HS
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A.P. Klementiev. A.A. Geda Legal Opinions Within the process of Contractual Unification in Over-the-counter Derivatives Market The article discusses the practice of preparing legal opinions
commissioned by the International Swaps and Derivatives
Association as a benchmark for working with other framework
contracts. The authors analyse the specifics of obtaining foreign
legal opinions in the international OTC derivatives market. This
article will be of interest to lawyers and employees of commercial
banks and Russian companies that use derivatives in their activities.
Keywords:
derivative, derivative instrument, legal opinion, netting, financial collateral, bankruptcy, master agreement
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