Журнал ЗАКОН

Comments by A. Klishas, A. Ivanov, V. Zhuikov, L. Golovko, V. Yarkov, A. Bonner, E. Kudryavtseva, N. Rovers, A. Dzhagaryan, I. Veselov

The article discusses the issue of the civil law qualification of a person’s actions committed in the Internet using third party’s means of identification under the prism of agency law. In particular it analyses cases of both the voluntary transfer of the identifier and the unlawful acquisition of them by fraudsters. It is proposed to apply the rules of Chapter 10 of the Civil Code of the Russian Federation by analogy to ensure a balance of interests of the parties.

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Keywords: digital trust, identification, actions under third party’s name, authority due to circumstances

The article analyses Art. 183 of the Civil Code of the Russian Federation, which refers to the contract of obligation by representative without authority. The author believes that the rights and obligations stipulated by this agreement arise only with the approval of the person represented. In relation to the contract, approval is a suspensive condicio juris. Until it is approved or denied, the legal effect of the contract is pending, it is like a suspension that takes place under a condition that the parties agree of their own free will.

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Keywords: contract of obligation by representative without authorisation, condicio juris, suspension, expectant right

The article analyses the judicial practice on the application of the provisions of subparagraph 2 of paragraph 1 of Article 182 of the Civil Code of the Russian Federation, in which there are two phenomena — authority that are evident from the situation (implied authority), and apparent authority. The colossal differences between them are not always accurately conveyed by law enforcement practice, which causes certain problems. The study revealed a number of the most significant issues: in which cases the courts recognise that the powers are obvious from the situation, whether the parties can by their agreement limit the cases of application of the studied norm, what are the conditions for the application of the apparent authority, etc. The author considers the most important judicial acts on these issues and comments on decisions proposed by the courts.

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Keywords: authority, implied authority, apparent legality

Representatives of children and missing persons act to ensure that they participate in transactions and retain their assets. However, the protection of the interests of children is so high that the other party to the contract may find harm and losses if the contract is declared invalid. The possibilities for invalidating the transaction are quite significant. The practice of holding representatives accountable is not developed enough. Co-representation also creates the risk of the transaction being invalidated due to the lack of consent of one of the spouses. The author proposes a number of measures to change practice. It is important to formulate the conditions under which parents can sell the child’s property carefully. When certifying the contract, the notary must be able to check whether the seller has fulfilled all the obligations which are preconditions for the sale. The bank account in which the child is the beneficiary could be useful. The good faith of the defendant must be taken into account if a claim is brought to declare the transaction invalid and apply restitution. When analysing the representative of a missing person, it was found that trustees are rarely appointed and there is a time interval between the declaration of a missing person and the appointment of a trustee. In addition, if the trustee does not have information about some things, this thing will not be transferred to trust management.

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Keywords: legal representative, invalid transaction, missing people, fiduciary management

The article analyses the legal regulation of judicial representation in the Russian civil process and the prospects for its improvement. The authors raise the problem of delimiting the judicial representative from the envoy (nuncio); they substantiate the conclusion that the judicial representative has his own procedural rights and obligations and point out that there are no obstacles to bringing the judicial representative to substantive and procedural responsibility; investigate the issue of the immunity of the judicial representative from the claims of the represented. Based on the analysis of the norms of the current legislation, the authors conclude that there is a greater property liability before representing professional court representatives who do not have the status of a Russian advocate. The article examines the issue of the peculiarities of the disciplinary and property liability of a lawyer to the client, the grounds and procedure for bringing him to responsibility.

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Keywords: representation, judicial representative, responsibility of judicial representatives, responsibility of advocates

The article reviews the main provisions of the package of bills introduced in late November 2019 in the State Duma, aimed at improving the legislative measures against cartels. The author critically analyses the theoretical basis for this package, set out by representatives of its drafter (Federal Antimonopoly Service) A.P. Tenishev and M.A. Khamukov. Agreeing with the thesis about the harm caused by cartels, the author proposes to abandon the simplified (onesided) understanding of both the cartel itself and the harm it causes. The author provides a negative forecast for the economy and law enforcement practice in case of adoption of the anticartel package in its current form.

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Keywords: cartel, cartelisation, anticompetitive agreements, bid rigging, national economic security

Changes in the structure of the Constitutional Court — Staff changes in the Supreme Court — New wave of coronavirus and related restrictions — Tax on Google — Sanctions and cyber-warfare — One more appearance of misdimeanor to Russian law — New word in the fight against corporate abuse — Religious extremism as a legal challenge

In the last few years, the WTO dispute settlement procedure has been undergoing a serious crisis: the difficulty of forming arbitration panels, the long time needed for preparing and sending panels’ reports, difficulties in implementing the recommendations of panels and the Appellate Body, the deviation of panels and the Appellate Body from previously formulated legal positions, etc. In December 2019, the crisis reached its peak, as the WTO Appellate Body, which is called upon to consider appeals against reports of panels, completely suspended its activities. The paralysis of the appeal instance of the WTO dispute settlement system (DSS) may not only cause significant harm to the WTO members in terms of assessing the efficiency of the dispute settlement itself, but also, in practical terms, make it impossible to implement the recommendations of the panels, since filing an appeal in the absence of a functioning appeal instance means that the recommendations of the panel have no legal force; thus the states, following the WTO agreements, may not implement them, being sure that the enforcement mechanism will not be able to enforce them. Are there any alternatives to the appeal instance of the WTO DSS and to what extent can they resolve the crisis? Are WTO members ready and willing to change something? The authors have tried to find it.

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Keywords: WTO dispute settlement system, Appellate Body, arbitration, Multilateral Interim Appeal Arbitration Agreement, MPIA

The author is analysing recent Russian court practice on the thin capitalisation rules, in particular the case of LLC Mega-Invest (the Russian retail group Monetka). In this case the courts refused the taxpayer to deduct the interest expenses under the loan from the other Russian company of the Group on the formal ground that both entities were affiliated to the foreign company of the Group, a Cyprus tax resident. However, under the position of the Supreme Court of Russia, for application of Art. 269 of the Russian Tax Code (“thin capitalisation rules”) the courts should determine a person “de facto controlling” a loan. How should the tax authorities and the courts determine a “de facto controlling” person? Should CFC rules and beneficial ownership concept be applied in that context? The author comes to the conclusion that in the situation when the entity deemed by the tax authorities as a “controlling” person for the purposes of Art. 269, is a mere conduit company without substance, and not a beneficial owner of the interest income, and was notified to the tax authorities as a CFC by the Russian resident, this entity is not a de facto controlling person and the thin capitalisation rules should not apply.

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Keywords: thin capitalisation rules, de facto controlling person, CFC rules, beneficial ownership, antiavoidance rules, the principle of equality, the principle of the balance of interests, tax abuse

The article deals with some issues related to the specifics of marriage contracts and marital agreements in foreign countries. The author, while noting a possibility to include the conditions in case of death of one of the spouses in a marriage contract or an agreement — typical for foreign countries, analyses the evolution made by the law of these countries with respect to the conditions in case of divorce. The article also attempts to show the difference between the approaches to marriage contracts and agreements in the continental law and common law countries. In particular, it draws attention to such mandatory requirements existing in common law countries as property disclosure and independent legal advice.

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Keywords: marriage contract, marital agreements, marriage, spouses, matrimonial property relations

This work is aimed at introducing to Russian readers the concept of representation in Italian law, whose civil institutes receive unduly little attention in Russia. The article deals with the most general aspects of representation in Italian law — its concept and sources. The main attention is paid to the relevant norms of the Civil Code — this principal source of Italian civil law is given for the first time in the author’s translation, — as well as the most important provisions for their understanding in the Italian civil law doctrine and the positions of jurisprudence in comparison with Russian law. The work will be useful for further comparative study of the institution of representation, a deeper understanding of its problems in domestic law, and improvement of court practice and legislation in this area.

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Keywords: representation, rappresentanza, power of attorney, procura, representative authority, potere di rappresentanza, Italian Civil Code