Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС23-10096, 16 October 2023 The commented judgment expresses the position that only violators whose guilt has been established by the antimonopoly authority can be subject to such punishment as inclusion of information in the register of unscrupulous suppliers. In this case, guilt can only be in the form of intent. The author, who represented the interests of the applicant in the Supreme Court of the Russian Federation, positively evaluates the conclusions made by the Court. This judgment can have a positive impact on judicial practice in this category of disputes.

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Keywords: register of unscrupulous suppliers, public procurement, guilt

A US court has ruled that it is lawful to impose sanctions on the cryptocurrency mixer Tornado Cash, a kind of automated system for ensuring the privacy of cryptocurrency owners. The court recognised that, for the purposes of sanctions legislation, the system could be considered a ‘person’ and the smart contracts it uses could be considered ‘property’. Therefore, an authorised state body may, if there are appropriate grounds, add the system to the sanctions list and block its smart contracts. Although some of the judge’s theses are controversial from a formal legal point of view, the overall outcome of the case is quite consistent with common sense. A different approach would have meant the capitulation of the rule of law to clever technical means of circumventing sanctions.

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Keywords: sanctions, cryptocurrency, blockchain, smart contract, mixer, legal entity, property

This article deals with the problem of persistent unenforceability. First of all, it is necessary to define the phenomenon under study more clearly. For this purpose it is necessary to distinguish the permanent impossibility of performance due to legal obstacles from related institutes: invalidity, mistake, and forfeiture due to a material change of circumstances (art. 451 of the Civil Code of the Russian Federation), as well as to determine the possible legal qualification of the initial impossibility of performance. Further, the problem of differentiation of permanent and temporary impossibility of performance is considered in detail due to the formation of criteria for determining these phenomena. After the definition of the relevant concept, a closer attention will be paid to the unique special rules of the Russian legislation, enshrined in art. 417 of the Civil Code, on the subsequent permanent legal impossibility, including the distribution of the burden of proof of the circumstances of impossibility, the admissibility of application of the relevant rules by the court ex officio, the influence of the debtor’s guilt on the termination of the obligation, the expediency of the concept of ‘resurrection’ of the obligation in the current Russian law, as well as the issues of compensation for damages. Based on the above, the author concludes that art. 417 of the Civil Code of the Russian Federation is a superfluous institute and proposes to exclude it from the current legal regulation.

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Keywords: legal impossibility of performance, invalidity, error, damages, force majeure circumstances

The relevance of the study is determined by the widespread use of so-called saldo (balance, netting) in judicial practice. However, the concept itself remains unclear, the legal nature is not defined. According to the idea of the Supreme Court of the Russian Federation, netting was introduced to distinguish it from offset. Meanwhile, no clear criteria have been established for this distinction. The very formulation of the question of differentiation gave rise to the problem. Publications show that lawyers, on the contrary, usually understand saldo as a kind of offset. But there are no convincing arguments to distinguish such special offset from the usual one. The article proposes to abandon the clarification of the nature of netting by searching for a common solution in the judicial practice of the Supreme Court of the Russian Federation. Since this practice itself is rather chaotic and arbitrary, no general theory can be built on it. The author suggests taking into account the essence of saldo as a purely mathematical operation: it is not a fact, much less a transaction, and can be used wherever it is required to calculate by comparing debit and credit. Therefore, the court cannot complete the analysis of the case by referring to the saldo: it is required to specify and qualify those legal facts and compositions that are behind the balance. It is permissible to use the netting as a specific result in relation to the contract of the counter account, as well as when applying the rules on the unjustified enrichment. The fundamental difference from offsetting and other transactions on termination of obligations is that counter obligations do not arise.

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Keywords: the law of obligations, netting, offset, juridical facts, counter obligations, counter account, kontokorrent

The article considers one of the most interesting types of insurance in our opinion — Directors and Officers Liability Insurance (D&O). The article first describes the most important terms and conditions of such contracts, then compares these contracts with the current Russian insurance legislation and shows that the main difficulties experienced by Russian insurance law in regulating such contracts arise from the fact that Russian insurance legislation has too many mandatory rules, which make it inflexible and prevent the use of insurance contracts demanded by the market.

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Keywords: insurance, Russian insurance law, D&O insurance, D&O insurance contract

The article studies the peculiarities of application of the institute of compensation for damages in case of infringement of the exclusive right. The article substantiates the expediency of maintaining the rule ‘One unit of counterfeit displaces one unit of original’ applied in judicial practice as a general rule, proposes a certain expansion of its scope, and at the same time formulates the conditions under which this rule should not be applied. The necessity of placing the burden of proof on the infringer to prove the occurrence of losses to the right holder due to a cause other than the infringer’s actions is argued, and criteria are proposed according to which the existence of such causes can be established and confirmed. The question of taking into account the property status of the infringer of the exclusive right in determining the amount of damages to be recovered is investigated, and a conclusion is made about the expediency of taking it into account in exceptional cases.

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Keywords: compensation of damages, intellectual property, exclusive right, protection of intellectual rights, counterfeit, practising right holder, property status of the infringer

The article analyses the phenomenon of an enterprise group for the purposes of insolvency law. At present, the absence of a conventional approach to an enterprise group, its legal personality and competitiveness does not allow solving many problems of bankruptcy law (for example, the possibility of consolidation, distribution of property among creditors, sale of property of several persons in a single lot and liability). The article considers the main criteria of an entrepreneurial group: the circle of persons included in the entrepreneurial group is defined; the factors influencing the stability of relations within the group are revealed; the presence of the general group interest, different from the interest of individuals in the group, is substantiated. The author notes that the most promising approach to understanding the entrepreneurial group is the consideration of the partnership model of relations within the group, because the perception through the prism of partnership allows to build the institution of bankruptcy of the entrepreneurial group in the already existing system.

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Keywords: bankruptcy, enterprise group, material consolidation, procedural consolidation, group-wide interest