Журнал ЗАКОН

Commentary on the Judgments of the Judicial Chamber for Economic Disputes of the SC RF No. 305-ЭС24-8216, 15 August 2024 and No. 308-ЭС24-3124, 6 September 2024 The article provides analysis of the Supreme Court’s positions on abandoning the mandatory consideration of the quantitative criterion of a major transaction. The article is divided into two parts. This issue contains the second part of the article, which analyzes the evolution of the concept of a major transaction in Russian law. The institution of major transactions, in its current understanding, implies fundamental changes in a company, therefore it is a priori designed for extremely rare use and should not be used merely in conjunction with declaring a transaction invalid as unprofitable or due to the other grounds. With this understanding, the qualitative criterion is certainly essential for qualifying a transaction as a major one. However, it is difficult to imagine a justified qualification of a transaction based only on the qualitative criterion without any consideration of quantitative, economic indicators and the significance of their impact on the company’s activities. Moreover, for the parties to a transaction the quantitative criterion also serves as a safe harbor and guarantees that the transaction will not be considered as a major one. For this reason, the legislator deliberately retained the quantitative criterion during the reform. At the same time, the sole reference to the book value of the company’s assets, that is currently established by law, may not reflect the actual impact of the transaction on the company’s activities. In this regard, the Supreme Court’s position can be interpreted not as a refusal to consider any quantitative characteristics, but as a guideline for lower courts to analyze a wider range of economic indicators to assess the impact of the transaction on the company’s activities, which are not limited to the assets’ book value.

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Keywords: corporate law, major transactions, qualitative and quantitative criteria of major transactions

Any designation used in commercial activities to individualise goods, works or services, regardless of whether it has been registered as a trademark, can perform four functions: individualising, identifying, informative, and advertising. Despite the closed list of objects of intellectual rights, there are tools that allow the prevention of attempts by third parties to register in their name as a trademark designations that serve individualising and identifying functions. Protection is provided by the application of subparagraph 1 of paragraph 3 of Article 1483 of the Civil Code of the Russian Federation or antimonopoly norms, provided that the designation has been used for a long time prior to the registration attempt and has become known to consumers. A similar, but broader approach is used in common law countries: it allows not only to prevent registration or to annul already registered marks but also to territorially limit the exclusive right to them in the presence of prior rights, prohibiting the rights holder from using the mark in the area where the designation of ‘prior user’ was presented. The latter possibility is not available in Russian legislation. The application of the cited norm of the Civil Code of the Russian Federation encounters difficulties. The first — the basis for misleading through the association between the designation and its ‘manufacturer’, which may be interpreted as the knowledge of the product’s manufacturer, which does not occur in practice: consumers do not know those who produce the goods. The second — the resolution of conflicts in the case of significant geographical remoteness of the parties: that of the person who used the designation, and that of the person who decided to register it as a trademark.

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Keywords: trademark, functions of a trademark, protection of unregistered designations, common law mark

The article is devoted to the legal nature of territories of comprehensive development of territory (hereinafter — CDT) and assesses the impact of their establishment on the implementation of urban planning activities. The authors substantiate that the CDT territory constitutes an area with special conditions for the implementation of urban planning activities and cannot be classified as a territorial zone or a zone with special land use conditions. The article also analyses the impact of the establishment of CDT territories on the preparation and implementation of planning documentation, the issuance of urban development plans for land plots, modification of permitted land use types and capital construction facilities.

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Keywords: comprehensive development of the area, planning documentation, urban planning scheme of the land plot, building permit, land use and development regulations, standards of urban planning design

The article examines the concepts and grounds for establishing a transitional legal regime of lands incorporated into the boundaries of a populated area from the forest fund lands. The article substantiates the mandatory establishment of such a legal regime, but points out the need to improve legislation in terms of: establishing a list of types of activities permissible for implementation during the transition period; determining the specifics of providing land plots during the transition period; changes in the legal grounds for termination of the transitional legal regime. The author substantiates that local governments have the right, but are not obliged: to create forest districts as a territorial authority for managing urban forests in relation to the forest lands included in the border of a populated area; classify the included lands exclusively as a recreational zone. The author proposed the establishment of a special standard for the greening of the territory in relation to lands included in the border of a populated area. The author notes that judicial practice does not sufficiently take into account the distinctive features of the legal regime of urban forests and forests included in the border of a populated area both during the transition period and after its termination.

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Keywords: transitional legal regime of lands, lands of settlements, urban forests, forest districts, urban planning regulations

This article aims to introduce Russian readers to the issues surrounding the so-called bailment — an institution of Anglo-American law, almost unknown in Russia, but having extensive practical application both in general civil life and in commercial transactions — and, perhaps, serve as a starting point for its scientific legal development by domestic jurisprudence. The first half of the article explains the essence and relevance of the bailment institution, creates an understanding of the range of sources that could have been used in such development, and its possible methods; the second half outlines the main questions that require this development.

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Keywords: bailment, bailor, bailee, legal classifications

The article is devoted to the historical study of such a form of asset separation as the personal fund. The author traces the history of the institution not from the date of amendments to the Civil Code of the Russian Federation regulating the personal fund, but long before that — from the drafting stage and public discussion of the first domestic draft law envisaging the emergence of the ‘special fund’ structure. The prerequisites for the emergence and varieties of the personal fund are analysed, along with the criticism expressed in legal science. Changes made to the regulation of the personal fund less than three years after its implementation are examined, the potential of these changes to disrupt the balance of interests between the founder of the personal fund and its creditors is investigated, and the author’s perspective on the relevant regulation de lege ferenda is presented.

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Keywords: personal fund, property segregation, property management, inheritance

In the second part of the article, various approaches to the regulation of mistake in modern European legal systems are examined, as well as the place of the category ‘error in motive’ within them. Based on an analysis of historical and foreign experience, a consistent critique of the classical (psychological) doctrine of error is conducted, and alternatives to it are proposed. Finally, the normative regulation of error in the domestic legal order is investigated, and its shortcomings are pointed out.

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Keywords: misrepresentation in the conclusion of a transaction, error in motive, misrepresentation regarding the motives of the transaction