Russian Civil Legislation Research Articles

Integration and differentiation of norms of the Russian civil legislation as the most essential trends in its reforming

Integration and differentiation of norms of the Russian civil legislation as the most essential trends in its reforming

Contractual Preemptive Rights: Russian Doctrine and European Tradition in the Context of Russian Civil Code Reform

Problems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation.

Способы возмещения вреда согласно российскому гражданскому законодательству

Способы возмещения вреда согласно российскому гражданскому законодательству

Legal nature and content of a unilateral transaction in Russian civil legislation

Legal nature and content of a unilateral transaction in Russian civil legislation

Влияние современной реформы российского гражданского законодательства на систематизацию юридических лиц

Влияние современной реформы российского гражданского законодательства на систематизацию юридических лиц

Размер контрабанды как квалифицирующий признак состава преступления, предусмотренного статьей 200¹ УК РФ

The article reviews the provisions of Article 200¹ of the Criminal Code of the Russian Federation (CC RF) stipulating liability for smuggling of cash and (or) cash instruments referring to determination of the crime subject and the smuggling volume, taking into account the clarifications of the resolution of the Plenum of the Supreme Court of the Russian Federation dated April 27, 2017 No. 12 On Judicial Practice in Smuggling Cases. The author reviews the content of the “cash” and “cash instrument” notions characterizing the crime subject, considering the provisions of the Russian civil legislation and the EAEU customs legislation. The smuggling volume is viewed as a qualifying attribute and an attribute demarcating the acts stipulated by Article 200¹ of the CC RF and Article 16.4 Failure to Declare or Inaccurate Declaration of Cash and (or) Cash Instruments by Individuals of the Administrative Offence Code of the Russian Federation.

Применение обеспечительных платежей в рамках отдельных гражданско-правовых обязательств: теоретические и практические аспекты

The author analyzes “a security deposit” as a new named way to enforce the obligations established by the civil legislation of the Russian Federation. Studying of the latest amendments of civil law in the sphere of obligations will determine the actual directions of the further development of contractual security relations. The purpose of the article — based on the study of the doctrine of the Russian civil law, the Concept of development of Russian civil legislation, legislation and court practice to determine the legal nature of the security deposit, its characteristics and differences from other ways of enforcement of the money obligations — forfeit and deposit. Particular attention is paid to the problems of enforcement of security payments as the named ways to enforce the obligations under the preliminary agreements, and also revealed the inconsistency of court practice in this area.

Правовые особенности финансирования по договору Мурабаха в соответствии с исламским правом

Substantial differences in the legal regulation of the Russian and Islamic banking prevent to attract Islamic Finances to Russia, in particular, such as a ban on trading activities by credit organizations. Murabaha is one of the main instruments of Islamic Finance. In accordance with Sharia standard No. 8 the contract of Murabaha is an agreement whereby the Bank undertakes to transfer to the customer the property previously acquired by the Bank as its property at the customer’s request, and the customer undertakes to accept and pay for the goods with a predetermined extra charges to the original price. By its legal nature the Murabaha contract is similar to a contract of sale of goods on credit envisaged by the Russian civil legislation. However, the Murabaha contract has its own specifics: it is prohibited to collect interest, commissions and forfeit from a client; conclusion of the Murabaha contract is preceded by a request from the customer to the Bank on the acquisition of goods and the promise to buy them, and the purchase by the Bank of the goods in its ownership; risk sharing between the Bank and the customer; ban to change prices. There is an obstacle for Russian credit organizations to use the Murabaha contract: the taxation procedure for purchase and sale transactions, which leads to double taxation of the goods that is the subject matter of Murabaha.

Проблемы вещного права в современном российском праве

The article analyzes the progress and further prospects of development of the Russian civil legislation in terms of actual and appropriate improvement of the proprietary legal regulation. The author notes the historical prerequisites of and, substantiates the possible areas for, development of the Russian civil law in terms of traditions of the European private law which originates from the Roman law and the law of pandects; in this connection, the author substantiates the necessity for systemic development of the legislative regulation of limited proprietary rights. In line with the existing specific features of legal regulation of proprietary relations in the Russian law, the author considers advantages of regulation of rights to land plots, which are in the public domain, by means of forms and types of limited proprietary rights; in this connection, the author demonstrates inefficiency of extending mechanisms of law of obligations only, mainly the models of lease contracts, on land relations. The author analyzes differences between legal regulation of homogeneous relations within the civil legislation and the land legislation as a temporary phenomenon and a feature of the transitional stage in the development of the Russian civil legislation.

Договорные формы, опосредующие организацию сбыта инновационной продукции

Objective: to identify various ways of innovative products marketing, as well as the contract forms most demanded by innovative business that are used in innovative products marketing.Methods: the methodological basis of the study was both general scientific methods (systemic, structural, dialectical, formal logical (analysis, synthesis, deduction, induction, etc.) methods, the method of a philosophical nature) and specific methods: the method of dogmatic analysis (in- terpretation of legal norms and legal structures), formal-legal, structural-functional.Results: it was stated that marketing is the final stage of innovation process, which is commercializing the innovation, i.e. obtains profit through its sales, therefore, it is important to allocate the contractual structures that mediate sales and distribution of innovative products. It is shown that using contractual forms of organization of innovative products sales, the parties determine the marketing scheme for the produced goods, and thereby create, modify, and stop the property relations of the parties, thus the contracts, whose ultimate goal of signing and execution is marketing of innovations, can be identified as organizational by their legal nature. The contractual forms that mediate marketing of innovative products, include the contracts of sale, agency agreements, presented in the Russian civil legislation by the contract of agency, contract of commission and agency agreements, as well as franchising agreements. Besides, in the practice of civil turnover, there are mixed contracts, contracts based on the freedom principle, and the connecting elements of several contractual structures. Mixed contracts include distributor contracts.Scientific novelty: for the first time, the article comprehensively defines contractual forms of organization of innovative products marketing, depending on the means of its distribution, and describes the legal nature of emerging relationships for innovations marketing.Practical significance: the main provisions and conclusions of the article can be used by representatives of the innovative companies in their law enforcement practice, as well as in developing practical recommendations for further legal research on this subject and the preparation of educational and methodological literature.

Проблемы частного права в современных условиях

Recent intensive development of private law, which is presented by three successful codifications in the field of the civil, family, labor law in Russia, is noted in the article. Current changes of the Russian civil legislation as well as planned ones are described. To number of the main problems the author refers violations of the principle of good faith by participants of civil turnover, lack of effectiveness of the Federal Bailiff Service, insufficient security of the civil rights for real estate. In this regard it is necessary to form a notarial certification of real estate turnover, to keep availability of information from the state register of real estate for citizens, raise the status of the Federal Bailiff Service and strengthen its position by hiring highly qualified specialists.

Незаконное предпринимательство: изменение признаков состава уголовного преступления в свете реформирования гражданского законодательства

Незаконное предпринимательство: изменение признаков состава уголовного преступления в свете реформирования гражданского законодательства

The Importance of the Discussion About the Legal Nature of Possession

The article considers different views on the legal nature of possession, defines the meaning of the discussion on this matter. A historical and comparative analysis of the problems of possession protection in Russia and in foreign countries is carried out. Special attention is paid to the question of indirect (double) possession. After analyzing upcoming changes in the legal regulation of property relations, the Authors express their opinion on expediency of introduction of the institution of possessory protection in the modern Russian civil legislation.

ПРЕОДОЛЕНИЕ КОНФЛИКТА ИНТЕРЕСОВ В ОТНОШЕНИЯХ ПРЕДСТАВИТЕЛЬСТВА

The article considers the issues of legal regulation of overcoming of the conflict of interests in agency relations which could potentially occur when an agent acts as a counterparty of a principal in ordered transaction or when an agent concurrently represents different parties to the transaction (dual representation). The author refers to the review of soft law: UNIDROIT Principles of International Commercial Contracts, Principles of European Contract Law, Model Rules of European Private Law (Draft Common Frame of Reference). The author specifies the ways of overcoming of the conflict of interests in transnational relations between an agent and a principal, between an agent, a principal and a third party, which are inherent in international commercial practice and which are due to the awareness of a principal or a third party about the conflict of interests. The author examines the rules of the Civil Code of Russian Federation on the conflict of interests in agency relations which had been recently changed in connection with the adoption of the Federal law of 7th May 2013 № 100-FZ “On amendments to the subsections 4 and 5 of section I of the first part and the article 1153 of the third part of the Civil Code of Russian Federation”. This article is based on a combination of methods of cognition, which amounted to a systematic and dialectical approach. The author appeals to the general scientific methods (analysis, synthesis, induction, deduction) and to the specially-legal methods of learning: formal-legal, comparative legal, structural and functional. The author concludes about the necessity of the following improving of Russian civil legislation in respect of overcoming of the conflict of interests in agency relations particularly on the base of progressive international practice. The author proposes to define stages and forms of consent of a principal to the actions of an agent in situation of the conflict of interests.

Корпоративные правоотношения: содержание и особенности регулирования

Theoretical issues of the concept, classification, types, structure and system of subjective corporate rights have not been studied properly. As a result, scientists try to interpret subjective corporate rights within the framework of the law of property, and the law of obligation; to use analogy methods in their judgments that testifie to an attempt of applying existing scientific concepts to describe and reveal intrinsic specificity of legal relationship, whose legal regulation is just at the initial formation stage. The concepts of civil legal relationship, subjective civil law, and corporation that are currently far from being uniform in their interpretation by the juridical community should become fundamental and initial concepts in determining the independence of corporate legal relationship and subjective rights. Taking into account the definitions of the law in force, one cannot see solid grounds for defining common features, concept and system of corporate legal relationship. This demonstrates imperfection and defects in the Russian civil legislation with regard to regulation of corporate legal relationship. But without comprehensive detailed regulation of this relationship it is impossible to create a fully functional legal regulation system neither at present nor in future.

Protection of Intellectual Property Rights in Russia: Novels Civil - Legal Regulation

The article is devoted to new provisions of the Russian civil legislation in the intellectual rights protection sphere. The legal analysis of the specified short stories gains relevance and the importance in connection with entering of essential changes into the fourth part of the civil code of the Russian Federation regulating the legal protection of intellectual property. The research objective was definition effective civil – legal rights mechanism protection for objects of the intellectual property taking into account changes in the legislation. The specified purpose defined need of the solution of the following tasks: to investigate relation, and also protection and responsibility measures specifics in the considered sphere; to reveal features of application of new legislative designs in the field of protection of the intellectual rights; to consider features of collecting monetary compensation for violation of an exclusive right. The specified tasks were solved with the use of general scientific and private scientific methods. In the research are formulated the offers and recommendations promoting uniform application of norms of civil law in the case of violation of the intellectual rights. In particular, the conclusions of the distribution of the provisions of the civil legislation of the Russian Federation about the increased responsibility of entrepreneurs in the field of non-contractual breach of intellectual property rights. In general is supported the aspiration of the Russian legislator to the improvement of legal categories in the intellectual rights protection field. DOI: 10.5901/mjss.2015.v6n3s6p257

Russian Legislation on Security Interest: Important Changes

In 2013 an important reform of civil legislation was performed in the Russian Federation. The reform was performed in 3 steps by passing the laws amending the Civil Code of the Russian Federation (hereinafter – the Russian Civil Code) within the year 2013. As a result, the Russian legislature has changed and greatly enhanced Civil Code and, particularly, legislation on security. Today the Russian Civil Code includes a chapter on obligations, which contains an expanded and sophisticated section on “security interest”. Thus in our article we have reviewed the main steps of the Russian Civil legislation Reform. Particularly, we have identified the main reasons of this reform. However, in this article we have analyzed the provisions on security interest more detail. In our article we reviewed the main law changes on security interest, which have been introduced since 2008. DOI: 10.5901/mjss.2015.v6n2p22

О некоторых вопросах исковой давности

The article brought to readers’ notice considers certain issues, related to the legal institute of a limitation period. The purpose of the research was the analysis of the norms of the Civil Code of the Russian Federation, which were considerably altered in the process of the current reform of the Russian civil legislation. The research was conducted on the basis of comparison between the norms, referring to the limitation period in their actual and previous editions, taking into account the relevant court’s practice. In particular, a detailed consideration was given to Article 199 of the Civil Code in its new edition, a number of problems were disclosed, which may arise in the court’s practice in connection with the application of this norm. Also an evaluation is given to Article 200 of the Civil Code. Special attention is devoted to the application of the limitation norms to the requirements, related to the invalidity of legal transactions. Materials of the Russian court’s practice, referring to the limitation norms are critically evaluated. As a result of the conducted research the conclusion was drawn on certain deficiencies of the norms in the research area and on the necessity of the legislation and court’s practice improvement.

Предпринимательские корпорации в новой редакции Гражданского кодекса Российской Федерации

The reform of the Russian civil legislation is far from being completed. A new wording of Chapter 4 of the Civil Code of the Russian Federation is an important, but by no means final milestone of transformation of the civil legislation launched in the Russian Federation. The author considers reasons and legal consequences of enshrining in the legislation of companies’ classification into public and non-public, atypical versions of business entities (special-purpose company, joint-stock company of employees), identifies Russian corporate law development trends. Besides, the author demonstrates a negative influence of Anglo-American approaches to the Russian legal system, different understanding of basic legislative and doctrinal structures of the corporate law in continental and Anglo-American legal families. As a result, the author substantiates impossibility of isolated and chaotic adoption of legislative solutions from a foreign legal system built on different legal regulation principles. However, the articles makes a reservation stating that entrepreneurial corporations under Russian law should not be understood as a synonym of business entities, and the corporate law is not an element of contractual law, but a sub-branch of Russian civil law. 

Вещное право: традиции, новеллы, тенденции развития

On the basis of the analysis of the pandect doctrine, modern theory of Russian and foreign civil law, Russian civil legislation development concepts, the article deals with evolution of understanding of general and special attributes of some corporeal rights (ownership right; limited rights). The author considers reasonableness of mixed, palliative structures of the subjective civil legal rights combining some attributes of both real, and liability rights: real/liability rights. Based on results of the conducted research of civil legislation sources and civil law science the author comes to the following conclusions. The Roman Law did not consider separate institutes (emphyteusis, superficies, easement, ownership right) in the context of the uniform concept of the corporeal rights system. Sampling analysis of pandects has shown that pandectists did not know most attributes of corporeal rights currently used in the scientific literature, and the nature of exposition of pandects does not in any way testify to the uniformity of statement of the concept and specific features of corporeal rights. At the same time the Roman Law and the pandect doctrine laid an essential groundwork for subsequent generalisation and systematization of the most commonly encountered and recurrent attributes of corporeal rights which in the modern science are commonly interpreted as general identification attributes of the corporeal right. The author denies reasonableness and expediency of existence of real/liability legal rights. The article demonstrates historical features of formation of the corporeal right sub-branch in Russia, identifies general tendencies of development of this legislation branch and corporeal right science at the present stage. The methodology of the article is based on general scientific methods of deduction and historicism, special civil research methods: comparative/legal, functional and dogmatic ones.