Журнал ЗАКОН

Head of Private Law Directorate of the Supreme Arbitration Court of the Russian Federation Roman Sergeyevich BEVZENKO answers the questions of the head editor.

From 2014 in Russia it is planned to move to the system of real estate taxation with regard to cadastral value. It is aimed at changing the obsolete property tax which was collected on the basis of inventory value and land tax. Cadastral valuation of all real estate objects in the territory of Russia has been made, on the basis of which new tax shall be calculated; however, the problems may occur exactly when the tax is implemented. Now the valuation of real estate cadastral value is transferred to private individuals - professional values deal with that. Tax burden on the Russians owning real estate depends on the result of their work. In such circumstances the issue is urgent concerning objective nature of valuation and possibility of its contest, which shall be a solution to the draft law of the Ministry of Economic Development being prepared for adoption in the first reading, which introduces amendments to laws on valuation activities. How is it possible to make new system of valuation fair for taxpayers?

The article focuses on provisions of draft amendments to the Civil Code of the Russian Federation on “independent mortgage loan”. The conclusions are made concerning the fact whether new instrument is “really independent” guarantee and how satisfactory the regulation offered in the draft is. Legal logics demonstrated when analyzing independent mortgage loan is applicable to the analysis of mortgage loans of any type.

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Keywords: pledge, mortgage loan, collateral security, accessorily, abstractiveness, public authenticity

This article highlights the issues occurring in the course of use in domestic judicial practice of almost forgotten way of levy of execution upon the pledged property. The author pays special attention to the issues of lex commissoria institution application in Russia, or extrajudicial appropriation of the pledged item.

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Keywords: pledge, pledged item, appropriation of the pledged property, extrajudicial appropriation of the pledged item, lex commissoria

The authors analyze the theoretical aspects of mortgage functioning as security, as well as issues of mortgages practical turnover under conditions of uncertainty concerning their legal nature in Russian legislation, in particular, pledge issues and custodian accounting of the mortgages.

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Keywords: securities, mortgage, pledge of mortgages, custodian accounting of the mortgages, mortgage loan

In the article main draft law proposals are analyzed concerning amendment of guarantee institute within the framework of civil laws reforming. Special attention is paid to the problem of determining legal nature of liabilities from guarantee contracts. Provisions of draft Federal Law No. 47538-6 On Introduction of Amendments to Parts One, Two, Three and Four of the Civil Code of the Russian Federation, as well as to the Some Legal Acts of the Russian Federation are regarded which concern the bases of occurrence and termination of guarantees.

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Keywords: guarantee, guarantor, guarantee contract, guarantee of obligation performance, reforming civil legislation

This article focuses on the issue concerning justification of filing claims by creditors to guarantors bypassing the debtor itself; getting abstract consent of the guarantor for change of conditions of liability secured by him or her; termination of guarantee in case of the debtor-citizen's death or in case of debtor-legal entity's winding up.

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Keywords: guarantee, termination of guarantee, death of debtor, winding up of a legal person-debtor, Supreme Court of the Russian Federation

The article is about the issues of implementation by self-governing authorities of requirements of Federal Law No. 8-FZ of 09.02.2009 On Provision of Access to Information on Activities of State Authorities and Local Self-Governing Authorities on the information placement in the Internet.

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Keywords: local self-government, electronic state concept, municipal services, Internet, official web-site

The article regards issues of concern in relation to motivation of judicial acts, its quality, interconnection of intellectual and psychical process of decision taking on the case and implementation of judicial discretion.

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Keywords: judicial discretion, motivation of judicial act, psychology of taking judicial decision

The article provides detailed analysis of legislative initiatives in connection with responsibility for production, acquisition, transportation and storage of pornography items and materials with participation of the underage regardless of the purpose of the mentioned actions. The author gives examples of toughening penal prohibitions in the field of child pornography distribution and clearly shows that snap and ill thought-out criminalization may lead to large-scale application of serious criminal penalty in cases of lack of social danger of corresponding acts, increase the corruption in the country and contribute to discredit of state authorities.

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Keywords: pornography, child pornography, rights of the underage, criminalization of the actions, criminal responsibility, criminal policy, falsification of evidence

In the article the necessity of finding out judicial arbitration jurisdiction is grounded (differentiating between the competence of regular and arbitration courts within the framework of single civil proceedings) as separate type of civil cases jurisdiction (differentiating between the competence of judicial and non-judicial agencies of civil jurisdiction). The author formulated certain proposals concerning differentiation on legislative level of procedural consequence of jurisdiction breach by way of introducing corresponding amendments to the Civil Procedure Code of the Russian Federation and to the Arbitration Procedure Code of the Russian Federation.

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Keywords: refusal from accepting the claim, availability of justice, expediency of judicial defense, judicial arbitration jurisdiction, justiciability, “one window” principle

The article is devoted to the peculiarities of considering investment disputes with participation of foreign investors and the Russian Federation within the framework of national, and not international legal system. Despite of the fact that the Russian Federation has not ratified Convention on Investment Disputes Settlement between the States and Citizens of Other States of 1965 so far, such disputes may be considered by the International Centre for Investment Disputes Settlement.

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Keywords: investments, investment law, investment disputes, World Center for Settlement of Investment Disputes

The article concerns the issue of modern participation of public legal formations and private entities in solving tasks of public importance. General tendencies in the development of legal regulation of grants-in-aid and the use of grants in aid within the framework of public and private partnership is analyzed.

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Keywords: public and private partnership, municipal and private partnership, state and private partnership, grants-in-aid, budget investments

In the article practical issues of land lots rent are analyzed for the purposes of building after coming into force of the new version of the Civil Code of the Russian Federation. Legal status of persons renting land lots for the purpose of building is discussed, as well as its prospective changes in case of substitution of land lots rent for the purpose of building by building tenancy.

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Keywords: leasehold, building tenancy, superficies, building, land lot, draft amendments to the Civil Code of the Russian Federation

The article discusses the ratio of civil legal responsibility and risk of accidental loss (damage) of property as methods of distributing risks in civil law. On the basis of the carried out analysis the conclusion is drawn that risk of accidental loss (damage) of the property is a collective term including various types of negative property consequences of loss or damage to the property. In connection with that the author thinks that the mentioned risk and responsibility for obligations to provide for safe custody of third persons' property shall not be opposed: debtor's risk in such obligations determines the limits of his or her responsibility.

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Keywords: responsibility, risk, accidental loss (damage) of the property, insurable interest in safe custody of the property

In the article the issues are regarded occurring at forming competing mass of the debtor being a party to the repurchase agreement. Ways of development of legislative and judicial practice are offered with regard to the discussed legal relations.

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Keywords: repurchase agreement, securities, loan, credit, competing mass, bankruptcy