Журнал ЗАКОН

Commentary on the Judgment of the Judicial Chamber for Economic Disputes of the SC RF No. 307-ЭС24-17957, 11 February 2025 The corporation demands payment of dividends from the company. The corporation has never been listed in the company’s register of shareholders, however, in its opinion, it is precisely entitled to the company’s shares, and therefore to the dividends on them. The company refuses to pay dividends to the corporation. The Supreme Court ruled in favour of the corporation, holding that it was entitled to the return of shares which had been stolen from it more than twenty years earlier. This decision appears to be contentious in many respects.

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Keywords: theft of shares, restoration of corporate control, dividends, limitation period, bona fide acquirer

The article examines the legal framework governing the remuneration of insolvency practitioners in Germany and outlines the principal regulatory sources. The first part explores the principles established by the legislature and the judiciary as the foundation of the remuneration system for insolvency practitioners. It provides a detailed account of the structure of remuneration, as well as the rationale behind and implications of the German legislator’s choice of this particular model. The author’s attention is focused on the core component of the practitioner’s remuneration, the method of its calculation, and the general conditions under which deviations from the standard procedure may occur. The study offers a comprehensive analysis of judicial practice, aiming to identify existing issues and to elucidate the approaches adopted by the courts in addressing them.

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Keywords: remuneration system of insolvency practitioners; determination of insolvency practitioner’s remuneration; role of the court in determining remuneration, discretionary powers of the court

Commentary to the Ruling of the Constitutional Court of the Russian Federation No. 2-П, 21 January 2025 The article provides a corporate law analysis of the Ruling of the Constitutional Court of the Russian Federation No. 2-П, 21 January 2025. In the course of examining a tax dispute concerning the taxation of a company following the withdrawal of a participant who received compensation in a non-monetary form, the arbitrazh courts were also required to determine the relationship between the value of the property transferred as payment for the share and the value of the share acquired by the company under Article 26 of the Federal Law on Limited Liability Companies. The author highlights the Constitutional Court’s view of the company’s own share (stock) as a potential object of civil law, and concludes that the legal nature of such an object should be taken into account not only in in private-law, but also in public-law relations. The article argues that the company derives no economic benefit from recognising the value of the withdrawn participant’s share, except in cases where the company fails to perform, or performs only partially, its obligation to pay for that share.

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Keywords: shares held by the company; charter capital, treasury shares, withdrawal of a company participant, net assets

The article explores the problem of balancing the interests of creditors and participants in a limited liability company (LLC) when a bankrupt participant’s share in the company’s charter capital is subject to forced sale. The article focuses on the Ruling of the Constitutional Court of the Russian Federation’s Ruling No. 23-П of 16 May 2023, which granted pre-emptive rights to LLC participants to purchase a bankrupt member’s share at the initial auction price. This approach departs from earlier judicial practice that permitted acquisition at the winning bid price. The author identifies a resulting imbalance between the interests of creditors — seeking maximum satisfaction of their claims — and those of LLC participants, who aim to preserve control over the company. The paper highlights several adverse effects of the new mechanism: a decline in the investment attractiveness of shares, increased risk of abuse of pre-emptive rights, and higher transaction costs for creditors. Reference is made to the practice of US courts, where the interests of creditors are generally prioritised and corporate restrictions are not applied to compulsory sales of equity interests. The author argues that the exercise of pre-emptive rights by participants should only be permitted at the auction winning price.

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Keywords: pre-emptive right, bankruptcy, share in the charter capital, public auctions, corporate control

The first part of the article examines the possibility and limits of the succession of secondary rights in Russian private law. The author proceeds from the understanding of the secondary right as a legal power to unilaterally intervene in another person’s legal sphere and argues that, as a general rule, such rights should be regarded as transferable property interests capable of succession. The study identifies a set of basic criteria for the transferability of civil rights and concludes that these criteria are equally applicable to secondary rights. The significance of the classical division into independent and non-independent secondary rights is also analysed. Special attention is given to the issue of universal succession of secondary rights. Through illustrative examples (such as challenges to paternity, annulment of marriage, and revocation of a gift), the author demonstrates the conceptual ambiguity of the category of ‘personal non-property rights’.

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Keywords: secondary rights, succession, transferability of rights, universal succession, inheritance, assignment of claim, personal non-property rights, revocation of gift

The study examines the issue of releasing the seller from liability for defects in goods where the buyer knew or ought to have known of their existence. It provides a brief overview of the evolution of the institution of grounds for exempting the seller from liability for product defects. The article outlines the doctrinal approaches to defining the scope of the seller’s liability for legal and physical defects in goods. A differentiated approach is proposed for resolving this issue, depending on whether the contractual condition concerning the quality of the goods is explicit or implied. The paper further considers how the limits of the seller’s liability may change where representations regarding defects have been made, and analyses the relevance of the buyer’s “knowledge horizon” in such cases. The article contains part of a of a review of judicial practice relating to the application of Articles 460, 461, 475 and 476 of the Civil Code of the Russian Federation, in the context of contractual liability of the seller where there are disputed circumstances indicating that the buyer knew, or should have known, of the relevant defects.

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Keywords: contract of sale, legal and physical defects of goods, seller’s liability, knowledge, fault, good faith

Review of the Book by E.V. Mokhova ‘Cross-Border Insolvencies. Access to Insolvency of Foreign Companies: Foreign and Russian Experience’ (Statut, 2025)