ARCHIVE FOR 2019 RUSSIAN
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Февраль 2019
CONTENT
Ksenia Usacheva «Chairs in the Morning — Money in the Evening», or On the Reciprocal Structure of the Reverse Obligation Case Comment on the Judgment of RF SC No. 32-КГ18-15, 14 August 2018
The comment to the decision of the Supreme Court considers the issue of the procedure for exercising
reciprocal obligations in their liquidation stage, in other words, the obligations to return obtained property
if contractual relations are disrupted. The aspiration of the parties to an agreement that has fallen apart
to provide reciprocity of return pushes modern jurisdictions to various solutions: requiring simultaneous
return by both parties, binding the party demanding the return in its favor to be the first to offer the
return, fining the party that is last to return the assets for failure to abide by the court order, etc.
The Supreme Court is taking an important step towards clarity on this issue in Russian law. Unlike the
position found in previous explanations (for example, in Paragraph 7, Clause 1 of the informational
letter of the Supreme Arbitration Court of the Russian Federation No. 126 dated November 13, 2008),
it draws attention to the fact that return reciprocity cannot be achieved at the expense of autonomy
of will: if only one party requests a return, the court cannot oblige it to return the actually obtained
property in favor of the other without the corresponding request of the latter. This position makes it
possible to refuse some means of ensuring a reciprocal return and concentrate on improving others.
Keywords:
contract termination, return of obtained property, reciprocity
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Ksenia Tatarkina User Agreements of a Social Media User Account are Inheritable Judgment of the German Supreme Court of 12 July 2018 III ZR 183/17
with a Comment
The Federal Court of Justice of Germany in its decision dated July 18, 2018, decided that, in case
of a user’s death, the social media account, as well as all other property, is inherited. The detailed,
logically constructed, and comprehensive argument of the court forms a new legal opinion on
the inheritance of digital property. The personal nature of obligations exercised by the operator
of social media, the invasion into the private life of partners in communication if access to the
account is inherited, and the importance of the account data for user individualization have been
assessed.
Keywords:
inheritance law, user agreement, standart terms, digital property, account, secrecy of telecommunication
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Sergey Gromov Security Property: A Dogmatic Essay on the Example of Leasing Granting the creditor with ownership of the asset serving as property security is widely applied
in commerce as an optimal alternative to a pledge. Such an ownership right is often referred to
as «security ownership». In this publication, the content of security ownership as a right in rem is
described with the concept of leasing as an example. The components of the ownership right (the
elements of the «bundle of rights») are divided between the owner (creditor) and the user (debtor).
This division is based on the fact that the latter needs the entitlement in order to possess and use
the asset to generate benefits and profits (while the owner retains some elements of the property’s
control) and also needs the entitlement (erga omnes) to receive ownership after the performance
of contractual obligations agreed by the parties. At the same time, the creditor’s title, without being
ancillary, is encumbered with the debtor’s multicomponent limited right in rem. The situation of «dual»
possession exists, where the debtor is the direct possessor of the asset and the owner (creditor) is
the indirect possessor. This situation requires informing third parties by entering information into the
relevant public register. Granting the creditor with ownership of the property provides him the chance
to rely on the feature of elasticity. This means that after cancellation of the corresponding contract,
the debtor’s rights to property will terminate and the creditor’s ownership will be fully restored.
Keywords:
security ownership, leasing, pledge, property security
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Radik Lugmanov Tort Law as a Means of Recovering Purely Economic Losses The author of the article focuses on so-called «purely economic losses». These are losses that arise
from the behavior of another person, but not as a result of causing physical harm to the victim’s health
or to things. It is argued and substantiated that human activities are fundamentally harmful. However,
it does not follow from this that any conduct that causes damage deserves censure. The author raises
the question of the limits of tort liability and focuses on the situation when losses are not evidence of a
violation of a right (absolute or relative), but a sign of impairment of a certain interest that is not always
expressed in the form of a subjective right.
A comparative review of French, German, and English law showed a significant difference in the
approaches to acceptable indicators for recovering purely economic losses.
The author demonstrates that despite the wording of Art. 1064 of the Civil Code of the Russian Federation,
the possibility of recovering purely economic losses is questionable due to the critical problems of the
generally accepted understanding and application of such elements of tort liability as harm, property,
wrongfulness, and guilt. The article states that the understanding of the principle of general tort in
Russian law does not coincide with the reference understanding of this principle in French legal order.
The domestic understanding of this principle is not very compatible with the possibility of recovering
purely economic losses.
Finally, the author of the article proposes shifting the focus in deciding the issue of compensation for
losses from a violation of the subjective right to an interest protected by law, and also puts forward a
number of political and legal criteria that must be considered when justifying the recovery of these losses.
Keywords:
рurely economic losses, tort law, general tort
Anton Ilyin Retroactive Effect of the Decisions of the Constitutional Court and the Execution of Judicial Acts The possibility of revising judicial acts that have entered into legal force and that differ from the positions
of the Constitutional Court is subject to the criterion developed in the practice of the Constitutional Court,
according to which judicial acts may be reviewed for new circumstances at the request of persons who
did not participate in the constitutional proceedings only if these judicial acts are not executed or are
partially executed. However, the content of this criterion has not yet been clarified. What does execution
mean in relation to a judicial act that does not require execution? The article argues that the criterion
of execution in this case should be interpreted independently: a judicial act should be considered as
non-executed (partially executed) only when, despite its entry into force, its legal effect has not been
fully realized (the purpose constituting the content of the claim was not achieved). Only one case falls
under the criterion of the execution of judicial acts: when a judicial act that has entered into force, based
on the provision of the law, is subsequently recognized by the Constitutional Court as unconstitutional
directly or indirectly, the person is obliged to give, do, or provide something, and this person who did not
participate in the constitutional proceedings did not fulfill this obligation.
Keywords:
revision of the judicial act on new circumstances, Constitutional Court, legal force of a court decision
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Ekaterina Avtonova Analysis of Judicial Practice Concerning Termination of a Penalty and Principal Debt by Setoff The article considers the problems arising in court practice regarding the lawfulness of a setoff
of a penalty and principal debt. After 2012 court practice allows one to terminate a penalty and
principal debt by setoff. However, some courts do not observe this approach and demand the
incontestability of a penalty as a necessary prerequisite for a setoff. Analysis of court practice leads
the author to the conclusion that the permissibility of termination of a penalty and principal debt by
a setoff calls for reaffirmation by the Supreme Court of the Russian Federation.
The author analyzes the possibility of challenging the grounds for charging a penalty or its amount
and discusses the consequences of penalty reduction by the court. Judicial practice does not
provide an unequivocal solution to the problem, in particular due to the uncertainty of the position of
the Supreme Court of the Russian Federation. The article describes two approaches elaborated by
the courts. The first one relies on quashing the setoff and the second one involves the recovery of
unjust enrichment. The author emphasizes that the choice between these approaches affects the
possibility of recovering contractual penalties and the continuation of security of a principal debt.
Analysis of court practice demonstrates the diversity of reasoning while tackling this problem and
the need to choose between two represented approaches for universalization of practice.
Keywords:
setoff, setoff of a penalty, incontestability of a penalty, consequences of penalty reduction, invalidity of a setoff
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