ARCHIVE FOR 2015 RUSSIAN
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Декабрь 2015
CONTENT
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
S.A. Karelina, I.V. Frolov. Problems of the Development of Legal Policy on Consumer Bankruptcy in Russia and Their Influence on the Mechanisms of Personal Bankruptcy The article deals with the issues of the development of legal
policy on consumer bankruptcy in Russia and their influence
on the mechanisms of personal bankruptcy. It covers basic
misconceptions about personal bankruptcy, particularly its
goals, terms and the real objective of its introduction in the
Russian Federation. The authors have analysed the legal
nature of bankruptcy of citizens and legal models of their
insolvency and thus have come to the conclusion that the
current structure of personal insolvency does not fully
secure the recovery character of bankruptcy procedures
available for the citizens.
Keywords:
legal policy, personal bankruptcy, bankruptcy of citizens, consumer bankruptcy, bankruptcy myths, insolvency, irredeemable debt, unsoundness
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P.V. Khlyustov. Matrimonial Property: the Issues of Formation of the Bankruptcy Estate of an Individual Bankrupt The article discusses the main peculiarities of formation
of the bankruptcy estate of an individual bankrupt in case
his or her properties are considered marital. The author
focuses on practical cases rather than academic issues.
The article analyses the current legislation on the status
of family assets in bankruptcy proceedings as well as the
ways to develop legal regulation and judicial practice.
Keywords:
personal bankruptcy, matrimonial property, marital property, bankruptcy estate
E.V. Mokhova. “Bankruptcy Tourism”: Migration of Debtors in the search of a Better Country for Personal Bankruptcy and Debt Relief The article explores “bankruptcy tourism” which is the
individual debtor’s choice of the most preferred country
for his bankruptcy. The author highlights causes of the
phenomenon, principles of its evolution and provisions for
its occurrence. She notes that regulation of international
jurisdiction of insolvency cases and mechanisms of foreign
bankruptcy recognition significantly affects the growth of
“bankruptcy tourism” which is confirmed by the experience
of the European Union. The article provides a research of
prospects for migration of the Russian debtors seeking for
“bankruptcy tourism” and evaluates the corresponding legal
consequences for the Russian jurisdiction. The analysis
of foreign approaches to the issue of recognition of postbankruptcy
discharges for individuals opens up the possibility
to evaluate the prospects for their use in Russia. The author
points out that despite it is desirable to acknowledge debt
reliefs issued in a foreign jurisdiction, the countries reserve
their right to block their cross-border effect in certain cases.
Keywords:
insolvency, consumer bankruptcy, personal bankruptcy, bankruptcy tourism, COMI, Centre of Main Interests, cross-border insolvency recognition, post-bankruptcy discharge
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Judicial practice. Comments
G.S. Vasiliev. Who is the Owner of Waste Products — the Supreme Court Turns the Practice Upside Down The article provides a critical analysis of the Decree of the
Supreme Court of Russia dated 4 February 2015 No. 301-
KG14-1670 compared with the earlier judicial practice.
According to the Court the fee for negative influence on
nature shall be paid by the entity that has produced waste.
The Court adheres to the idea of perpetual preserving of the
right on the generated waste. Still, this thesis hasn’t been
proven by any means and contradicts to the Article 223 of
the Civil Code of the Russian Federation and the Decision
of the Constitutional Court of the Russian Federation dated
5 March 2013 No. 5-P. It also deviates from one of the main
principles of property law, namely the rule that any property
right exists only in relation to a specified material object. This
means the Court disregards the will of parties to a contract
as to allocation of their rights and duties concerning waste
products. Finally the argued Decree turns the previous court
practice upside down and makes the law indefinite.
Keywords:
waste, environmental impact fee, transfer of ownership
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Discussion Board
P.A. Skoblikov. Petty Theft as Cruel Deception: the Conceptual Statement by the Lawmaker and its Analysis One of the most notable events in the sphere of criminal
law and policy of this autumn is the draft law considered
by the State Duma and proposing to regard the theft of
less than five thousand roubles (currently one thousand
roubles) as petty. Is this decision fair and reasonable?
Have the adherents of the draft law found balanced and
convincing arguments for it? What consequences may
follow the adoption of this law? Could there be any other
solutions suggested? The author presents his answers to
the questions.
Keywords:
nonqualified larceny, decriminalisation of crimes, repeated larceny, repetition of crimes, professional criminality, efficacy of punishment, amnesty, contemporary criminal policy
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Theory and practice
A.A. Ivanov. Economic Grounds for Real Rights The article is devoted to the civil law reform in the Russian
Federation in light of real rights. The delay in adoption of
the section of the Civil Code regarding real rights made
certain public leaders and lawyers doubt the intention of the
lawmaker to reform the correspondent part of the Code. The
article presents additional arguments for the thoroughgoing
reform of the Civil Code. Main arguments are primarily based
on the analysis of four economic needs for one or several
real rights. The author insists that these needs could only be
satisfied by the recognition of the absolute and not relative
rights along with the fixation of a closed list of such rights.
Keywords:
real rights, civil law reform
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O.M. Oleynik. Agreement on Transfer of Executive Powers of a Company: Issues of Qualification and Application The key issue covered by the article is shaping, distribution
and transfer of powers of the sole executive body of a
business entity. The author touches upon the matter of
such powers regarded as the unity of rights, obligations
and encumbrances creating the competence of a
correspondent body constituting the capacity of a legal
entity. The agreement on transfer of sole executive powers
of a company and the admission to the certain types of
activity are also subject to the analysis.
Keywords:
corporate body, executive body of an enterprise, corporate management, managing company, transfer of executive powers
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G.V. Tsepov. Is it Possible To Judge anyone for a Folly? Business Judgment and its Objective Evaluation The article is devoted to an objective assessment of
business judgment. The author analyses the concepts of
reasonableness and good faith of director’s activities in
the interests of the organisation, and concludes that the
relationship between the organisation and the director
becomes more playing with the increase of the uncertainty.
Due to the growing complexity of the economic system,
including a sharp rise in the scale and speed of information
exchange, the use of traditional legal tools is extremely
limited.
Keywords:
business judgment, reasonableness, good faith, interest, entrepreneurial risk, director
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N.V. Kozlova, A.S. Vorozhevich. Well-known Trademarks: the Concept and Peculiarities of their Legal Protection Reputable brands hold a specific place among trade marks.
They do more than individualise certain goods (services), they
are also a symbol of special status and image which demands
for the expansion of their legal protection. The purpose of
the authors is to identify both the essential features of such
trademarks and effective mechanisms to protect the interests
of right holders.
Keywords:
trademark, goodwill, violation of exclusive rights, abuse of rights, dilution of trade marks
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N.G. Eliseev. Jurisdiction Clause: How Should it be Regulated in the Unified Code of Civil Procedure of the Russian Federation? Having considered foreign experience, the author critically
evaluates the national court practice of admission of a
contract clause regarding the jurisdiction over cases potentially
arising out of the contract with a consumer. He
proves that this clause contradicts the current law as well
as infringes upon consumers’ rights. Finally, the author offers
certain suggestions on the draft of the unified Code of
Civil Procedure of the Russian Federation.
Keywords:
jurisdiction, freedom of contract, contract of adhesion, bank deposit agreement, consumer protection, estoppel
D.I. Smolnikov. Myths about Standards of Proof The author addresses himself to standards of proof, exploring
three myths that are commonly associated with them.
He concludes that standards of proof are no closer to the truth
than the inner conviction and that they are not as objective as
they may seem to be.
Keywords:
standards of proof, inner conviction, sufficient evidence
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