Журнал ЗАКОН

This article addresses limited real building rights. It explains how the ownership of erected buildings and constructions can be enjoyed by the owner of a building right during the validity period of such right. It further analyses the advisability and appropriateness of using one or another model of building rights for Russian reforms of rights in rem.

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Keywords: building right, superficies, limited rights in rem, RF Civil Code reforms, ownership

In 2018, Russia celebrates the 25th anniversary of the Constitution. In the same year, amendments to the Land Code on Public Easements were adopted. The article reveals the development of Russian legislation on construction activities with the use of easements, and analyses the new provisions. Concrete examples are given to illustrate how these norms create the risk of violation of the principles of legislation and citizens’ constitutional rights. In many ways, modern legal regulation is being shaped by the liberalisation of economic activities and political decisions. Those interested in setting up linear structures receive significant advantages in the implementation of their interests over the legitimate interests and rights of private land owners. With the introduction of new rules, the openness of urban planning decisions is also more limited. As a result, there is not enough reasonable encumbrance of land for the construction of linear structures. To remove the imbalance in legal regulation as laid down in the land code today, the necessary amendments are formulated. It is also proved that the easement by its legal nature is not intended to serve relations involving construction activities on someone else’s land. It is required to develop other limited real right and introduce it into the legislation.

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Keywords: public easement, balance of interests, land legislation, private property

This article is devoted to consideration of the latest changes to Art. 222 of the Сivil Code of the Russian Federation in relation to unauthorised constructions. The authors assess the novels by analysing key problems of the institution of unauthorised construction. These include: adequacy of sanctions for unauthorised construction; recognition of unauthorised construction based on “formal” grounds and protection of a bona fide developer (purchaser); and administrative demolition of unauthorised constructions. As a result of the assessment, the authors conclude that the latest changes in the regulation of unauthorised constructions are valid; however, they do not resolve all existing problems in practice.

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Keywords: unauthorised construction, good faith, administrative demolition of unauthorised construction

Legal force of the construction permit is a key component to successful development projects. As current legislation and regulatory enforcement allow cancellation or modification in the construction permit, it is important to understand what legal risks are involved. This article is dedicated to such risks and best practices in mitigation measures based on an extensive analysis of current trends in judicial practice.

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Keywords: construction permit, right to self-control, urban construction, construction permit cancellation

Investment activity is an important part of the national economy, therefore, the clarity of legal regulation of relations between construction entities will increase the attractiveness of the industry. Relations between those involved in construction projects are formalised through a variety of contracts. In the legal literature, there are various proposals for the classification and typification of contracts concluded during construction. This article analyses some of the proposals on how to classify contractual relations and concludes that the main criteria for attributing a contract to a different type are the goals pursued by each of the parties to the contract and the stage of the construction project at which the contract is concluded.

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Keywords: investment activity, contracts in construction activities, construction agreement, investment contract, real estate properties, capital construction facility

The article analyses the case law of the Supreme Court of the Russian Federation concerning a non-statutory transfer of the different obligation next to a real property. However, the nature of the transfers’ institution is not examined by the jurisprudence. In this context, the author raises the question whether real obligations can apply to the problems of the case law.

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Keywords: real obligations, propter rem obligations, housing law, real estate

This paper discusses controversial issues of operation of collateral estoppel in the sphere of civil and administrative procedings. It includes the analysis of certain inconsistencies between the regulation of collateral estoppel in procedural codes (Civil Procedure Code, Arbitrage Procedure Code, Code of Administrative Judicature). The major problem examined in the paper relates to the scope of legal treatment of factual circumstances. The author argues in favor of its limitation. In conclusion the author analyses the scope of collateral estoppel as provided for by the rulings of cassation and supervisory courts.

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Keywords: collateral estoppel, legal treatment of facts, legal force of judgment, cassation court

The article deals with legal ways of resolving uncertainties and opportunism in distribution of company profits. The author comes to a conclusion that it is impossible to create a onesize- fits-all formula of dividend payment usable in courts in resolving disputes. Purchasing shares (a share in authorised capital) and acting reasonably an investor intends to get his investments back over a planning horizon provided successful activities of a company. To do that he is given a combination of options: receive dividends, sell shares or get a liquidation quota. The difficulties of objectivisation of profit distribution in successful activities of a company should be offset not by expansion of judicial discretion in disputes over dividend payments, but by legal mechanisms providing share buyouts if there are no dividend payments.

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Keywords: dividends, profit distribution, uncertainty, opportunism

The article examines the evolution of the exhaustion of exclusive right to a trademark in connection with the rules on counterfeiting and some other provisions of Russian civil legislation. The author analyses the ways of protection, which are available to the right holders with parallel imports after the entry into force of Judgement of the Russian Constitutional Court No. 8-P of 13 February 2018. It is concluded that in view of the changes where the right holders have practically no legal means of influence on parallel importers it would be reasonable and expedient to recognise such a method of protection of the exclusive right as a ban on the importation of goods and their distribution.

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Keywords: exhaustion of exclusive rights, parallel import, counterfeit product, methods of protection of exclusive right, abuse of right

The article examines the problem of identification of obligation rights qualities as a pledge under Russian and French Law: the possibility of implementing in Russian law the accessory theory elaborated in French law is analysed. The article deals with such terms of contract as collateral for obligations, representation and warranties, indemnities, covenants and the arbitration clause for the purposes of identifying these terms as qualities of obligation rights and the possibility for a pledgee to bring them into effect.

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Keywords: pledge of obligation rights, accessory theory, means of securing obligation, covenants, arbitration clause

The article focuses on the matters of construction of the currency of compensation that arise in the context of the international investment and commercial dispute resolution. Attention is drawn to the analysis of applicable domestic laws, the content of arbitral institutions’ rules as well as relevant international law instruments and secondary sources of law. On the basis of the comparative analysis of legislation and operation of laws in Russia and England, international commercial arbitration and international investment tribunal awards, which are available for the purposes of the study, the author concludes that the positions of national courts and arbitrators on the matter of the currency of compensation coincide quite often. Meanwhile, the international investment arbitrators’ degree of discretion in the matter pertaining to determination of the currency of compensation is much broader, which results in determination of the currency of compensation other than that of the transaction or payment as the arbitrators often choose the currency they deem most appropriate for the compensation.

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Keywords: currency of compensation, limits of arbitrators’ discretion, international commercial arbitration, international investment arbitration, investment dispute settlement

The authors of this research paper analyse a significant multitude of legislation and enforcement practice of foreign jurisdictions from the perspective of alleged strengthening of criminal liability for cartel conduct in domestic legislation. The main patterns of imposed sanctions are formed by the authors. And through their research they conclude that imprisonment has not proved very effective.

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Keywords: hard-core cartel, criminal liability, imprisonment, crime prevention, antitrust legislation

The purpose of writing this article was the author’s desire to consider and analyse some aspects of the transformation and modernisation of the criminal procedure law of the People’s Republic of China since 1979 till the revision of China’s CPC in 2012. The article deals with the main institutions of criminal procedure law of the PRC, which have undergone changes. The paper presents the structure of China’s CPC as amended in 2012. Particular attention is paid to the criminal process model in China. The author concentrates on the stage of the defender’s entry into the case and its variations depending on the transformation of the norms. The use of audio-visual recording of interrogations is studied in detail. It is noteworthy that the article presents the definition of investigative technologies and techniques, their types, circumstances of use and persons who are authorised to use such methods of investigation.

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Keywords: PRC criminal procedure law, China’s CPC, structure of PRC code of criminal procedure, investigative technologies and techniques, PRC model of criminal procedure, audio-visual recording of interrogation, defender in PRC criminal proceedings