Russian Civil Legislation Research Articles

Возможные способы развития норм соседского права в российском законодательстве

The author analyses civil-law restrictions of the property right of the owner of real estate, legislatively outlining his legal powers in favour of neighbours and thereby establishing the limit of the owner’s powers in the use of his property. Due to the absence of rules of neighbour law in the Russian civil legislation, special attention is paid to the comparative analysis of developed foreign legal orders. The purpose of the study is to find ways to improve the legal regulation of neighbour’s rights in the Russian legislation, to overcome the general lack of system and fragmentation of legal provisions in the sphere of neighbours’ relations.

Искусственный интеллект — объект или субъект права?

The article analyzes the priority technology of artificial intelligence (AI) for today and assesses its legal nature. The relevance of the issues raised in the article is determined by the widespread use of the latest scientific achievements in the field of AI and the lack of adequate legal regulation of relations with its use. The article outlines approaches to recognizing AI as an object or subject of law presented in the doctrine, conducts a critical analysis of them from the perspective of Russian civil legislation, and also provides an assessment of the possible results of the activity of neural networks The authors conclude that it is impossible to recognize weak AI as a subject of rights and that it is advisable it recognize it as an object of rights, since in its characteristics it is close to computer programs as objects of copyright.

The Concept of Common Property at the Present Stage

Common property as a legal category of Russian law plays an important role in property relations with the participation of many persons — owners (civil law community). The paper examines the provisions of the Russian civil legislation concerning common property, in particular the owners of immovable property, adopted in order to implement the Concept of Development of Civil Legislation in 2009. In addition, dwells on the issues of common property of members of an investment partnership, peasant (farmer) unions and other corporate associations. The paper analyzes the concept of «common property» at the present stage and defines its characteristic features. Special attention is paid to the issue of the mixed nature of ownership of common property. The author explains the rights of owners in relation to common property, including property, managerial and information rights. The author substantiates a truncated possibility of implementing the classical triad of the rights of the owner (possession, use and disposal) in relation to the property in question. The paper examines the procedure for exercising the powers of the owner of common property, disposing of objects from the common property (including their transfer and alienation to third parties), as well as the consequences of violating the rights and legitimate interests of persons arising from transactions with common property. In conclusion, the author’s concept of common property is defined by referring it to the civil law community — the collective owner. The paper proposes approaches to the legal assessment of the content of the owner’s competence, possible areas of application of the category under consideration and the functional suitability of common property.

Legal Forms of Implementation of Civil Legal Personality of the State

Historically, there has been no certainty in Russian civil legislation regarding the legal personality of the state. The approaches of legislation and law enforcement practice still not only do not contain a regime of special civil legal personality in relation to the state, but also do not ensure the perception of the state as a special participant in civil legal relations. The article, prepared by the author on the basis of his report at the XVII Scientific Readings dedicated to the memory of Professor S. N. Bratus (Institute of Legislation and Comparative Law under the Government of the Russian Federation, October 18, 2023), reveals the essence and history of recognition by Russian legislation of the special civil personality of the state; three main organizational and legal forms of state participation (publicly-legal education) in civil law relations: 1) direct participation as a special, independent subject of civil law; 2) indirect participation through enterprises and institutions created by him, whose property remains in the ownership of the founding State; 3) indirect participation through state-owned corporations and public law companies legally considered owners of their property, but under the full control of the founding State, having limited legal personality and bearing limited liability for their debts. At the same time, the absence of subsidiary liability of the founding state for the debts of most of the legal entities created by it excludes the possibility of their recognition as legal entities of public law.

Paid Services Agreement in Modern Civil Law: Theoretical Construction and Prospects for Legislative Regulation

The reform of Russian civil legislation, which began in 2008, has not yet affected the special part of the Civil Code on certain types of contracts, and remains incomplete. At the same time, one of the most problematic contracts is the paid services agreement, the regulation of which in the Code is too broad and fragmentary. In the context of the growing role of the service sector in modern economic turnover, such a state of legal regulation of the paid services agreement in domestic civil law is inadmissible. The choice of directions for improving the legislative regulation of a service agreement should be based on an analysis of the legal nature of this agreement and the features of its theoretical design. The purpose of the article is to identify the main shortcomings of the legal regulation of the paid services agreement and to determine areas for its improvement. The methods of research are general methods of study (analysis and synthesis, induction and deduction, system analysis) and methods of legal science (methods of literal, systematic, teleological and historical interpretation of legal norms). The issues of the theoretical construction of a paid services agreement are considered taking into account the dogmatic development of this issue in domestic civil law and the current state of legal regulation of this contract in the current legislation. It is concluded that the service agreement is always aimed at achieving a certain result in the form of providing services of appropriate quality. The need to improve the general provisions of the service agreement is argued and specific directions for its modernization are proposed. The services requiring additional regulation are defined in special paragraphs of the Civil Code on certain types of service contracts.

Договор исламской рассрочки (мурабаха): понятие, существенные условия и сравнительно-правовой анализ

The authors subject to legal analysis one of the varieties of Islamic financial transactions — the Murabaha contract. At the same time, the legal characterisation of the Murabaha treaty is given from the standpoint of Islamic law in the comparative context of Russian law. In this connection, the purpose of the work is to characterise the murabaha contract, its essential conditions and to identify the main criteria for similarities and differences in approaches to this type of transactions in Islamic law and Russian civil legislation. The main difference between murabaha contracts and a contract of sale with instalment payment under Russian law is that, according to Russian law, the goods are considered sold to the buyer on credit, i.e. such a transaction implies a loan element and the possibility of obligating the buyer to pay interest on the overdue amount (Article 488 of the Civil Code), which, in turn, is forbidden by sharia. The murabaha contract refers to a type of transaction between the parties in which the sale of goods at a price equal to the purchase price plus a certain agreed margin occurs. Such contract involves no hidden interest, fines, penalties and commissions, i.e. there is no place for usury (riba). All this guarantees minimisation of the risks of disputes for both parties as much as possible, assumes the good faith of the participants in the transaction, which increases the confidence of the parties to each other and to the business as a whole. In this connection, such a financial model is defined as ethical financing.

Critique of the Provisions of the Russian Civil Code on the Termination of Tenancy Agreements in a Comparative Legal Perspective

Imperatively established by the Russian civil legislation judicial procedure of termination of the residential tenancy agreement by the landlord is criticized in the article. Evaluation of its effectiveness for the formulation of the proposals for the development of the art. 687 of the Russian Civil Code is the purpose of the study. Its objective is comparative analysis of the legal regulation of the termination of the residential tenancy agreement by the landlord under the Russian Civil Code, legislation of 4 republican (Texas, Idaho, Utah, Wyoming) and 4 democratic (Washington, New Mexico, New York, Illinois) American states with taking into account legal regulation of relevant relations in Germany and France. The purpose and the objective of the study determine the predominant use of the method of comparative legal analysis. Two alternative models of reform of the art. 687 of the Russian Civil Code, whose provisions are recognized as a relic of Soviet law, ineffective in a market economy, were offered by the authors. The experience of Germany and France is an argument in favor of so-called regulatory model of reform that allows the unilateral termination of the residential tenancy agreement by the landlord only on the reasons provided by law (not by the agreement). An analysis of the legislation of both republican and democratic American states permits characterizing it as a less restrictive to the principle of freedom of contract, since it allows stating in the agreement the reasons for its unilateral termination by the landlord. However, it excludes the right of the parties of the residential tenancy agreement to provide to the landlord the right of its unmotivated unilateral termination. Unlike legislation of the USA, this right might be provided to the landlord under so-called dispositive model of reform, proposed by the authors as the closest to the actual situation in the Russian market of residential tenancy. It is assumed that the condition for realization of this right must be a notice to the counterparty at least 1 month in advance. Within this model right of unmotivated unilateral termination of the agreement may be provided to the landlord only if the same right is granted to the tenant. One of the advantages of this model is that its implementation will eliminate due to lack of demand the widespread practice of stating in the residential tenancy agreement restricting the legal capacity of citizens and therefore void conditions. It will contribute to the unloading of the Russian judicial system by eliminating disputes over these conditions.

The Principle of Estoppel in Civil Law as a Mechanism for Preventing Contradictory Behavior

The paper examines the legal nature of the estoppel principle, applied both as a result of unfair actions of the party and because of the party’s inconsistent behavior. The paper analyzes the possibility of applying the German principle of protestatio facto contraria (objection to the actual expression of will) and compares estoppel and the continental law principle venire contra factum proprium.The study classifies the rules of law regulating the application of the estoppel principle; two categories of norms are distinguished, namely, the norms related to the prohibition of unfair actions and the norms aimed at preserving the contract. The author compares the norms of the Russian civil legislation regulating the application of the estoppel principle and highlights the conditions under which its application is allowed. The paper discusses the possibility of applying the principle of estoppel in the absence of the party’s intentions to harm the counterparty. The author analyzes the court practice related to the prohibition of contradictory behavior. In particular, the author analyzes legal disputes caused by the parties’ references to the non-conclusion or invalidity of the contract, as well as related to the inconsistent refusal of the party from the contract. Additionally, the author identified the circumstances to be proved when referring the parties to the need to apply the estoppel principle. Based on the results of the analysis, the author proposes options for improving legislative regulation of the application of the estoppel principle. In particular, the author proposes to introduce the following criteria for analyzing the need to apply the estoppel principle: the degree of validity and reasonableness of expectations of the counterparty’s behavior; analysis of the counterparty’s behavior; a causal relationship between an inconsistent behavior of the party and the damage caused to the relying party; the degree of damage caused to the party as a result of the counterparty’s unscrupulous behavior.

Экономико-правовые вопросы посредничества на рынке недвижимого имущества и в других сегментах гражданского оборота

The relevance of the subject of the selected scientific article is predetermined by the absence of the concept of mediation in the Russian civil legislation and the need to define the subject of this type of activity. As a conse-quence, there is inconsistency in the use of the term “intermediation” in relation to various segments of ser-vices, including in the sphere of real estate turnover, in trade, as well as in law enforcement activities. As a re-sult, there is inconsistency in the use of the term mediation in relation to various segments of services, includ-ing in the sphere of real estate turnover, in trade, as well as in law enforcement. The article considers the pecu-liarities of formation of intermediary services in the real estate market. The one-time nature of the majority of transactions is noted. The reasons for the short duration of the contractual lease terms of both residential and commercial real estate are revealed. The authors pay great attention to the definition of mediation and its main features. The types of mediation are distinguished in economic and legal aspects, as well as in its broad and narrow understanding. The classification of the subjects of mediation activity is carried out according to various criteria. The authors’ detailed analysis of the subject of the activity of a broker under the German Civil Code, as well as an occasional intermediary in international trade, appears to be of interest.

THE HETEROGENEITY OF BUSINESS ACTIVITY AS A FACTOR IN THE SYSTEMATIZATION AND DEVELOPMENT OF LEGISLATION

The article examines the question of the concept of business activity. It is concluded that this conceptcovers various types of human activity that cannot be reduced to entrepreneurship. The category «businessactivity» is not used in the Russian civil legislation, which is its significant drawback. In general, jurisprudencepays little attention to this generic category. In this regard, the main type of this activity is not fullyunderstood — entrepreneurial activity. There is no clarity as to the whole variety of business activity;there is no criterion in the legislation that allows in law enforcement practice to confidently distinguishentrepreneurship from other types of business activity. Based on the analysis of domestic pre-revolutionaryliterature on commercial law and modern foreign trade codifications, proposals were made to improveRussian legislation. In particular, it is proposed to distinguish between entrepreneurial and other types ofactivities according to such a criterion as the professional implementation of activities.

Ограничения цифровых прав человека в целях противодействия терроризму

Introduction. Russian civil legislation takes into account innovations in information exchange by fixing the concept of digital rights, while giving them an exclusively private legal understanding. The modern doctrine proceeds from the fact that development of digital technologies has also significantly influenced the concept of fundamental human rights. Continuation of this vision is the emergence of digital rights in the public sphere. This actualizes the analysis of their possible limitations in order to counter terrorism. Theoretical analysis. The research reveals the consequences of the transfer of a significant amount of social relations to digital format. At the same time, while the general discourse of discussions stems from the principle of “normative equivalence” between “offline” and “online” (which does not require fundamental changes in law), the experience of the spread of digital technologies shows that it increasingly faces systemic failures. The authors indicate the difficulties with the definition of digital rights and their regulatory consolidation (by analyzing the regulations of the European Union). Empirical analysis. Based on the identified characteristics of digital communications, the paper presents the models for countering terrorist threats in modern cyberspace. The features of the legislative support of the Chinese model of the “Golden Shield”, based on the principles of digital sovereignty (in particular, the Law of the People’s Republic of China “On Data Security”), are shown. The authors highlight the features of imposing restrictions on the right to digital communication for persons suspected of involvement in terrorist activities (in particular, on the basis of the Anti-Terrorism and Border Security Act adopted in 2019 in the UK) and consider other foreign experience in countering terrorist threats in the digital sphere. Results. The necessity of taking into account the technological features of information exchange in the digital space is demonstrated. This has a significant impact on the emergence of new measures to counter terrorism. Foreign experience testifies to the expansion of the list of operational and search measures, the list of elements of crimes of a terrorist nature.

Невозможность исполнения обязательства по Кодексу Наполеона 1804 г.

The article is devoted to the description of the French model of impossibility of performance of an obligation under the Napoleonic Code of 1804. Authors compare the latter with the Pandect, Anglo-Saxon, Uniform and Russian models of impossibility of performance of an obligation. It is noted that the first version of the French Civil Code did not use general construction of impossibility of performance. Instead it defined legal effect of particular types of impossibility of performance. It regulated the situation when the object of an obligation was destroyed, ceased to be a thing in commerce or was lost. Authors point out that, unlike Russian, French judicial practice does not strictly follow the rule established by the French Civil Code on the automatic termination of an obligation due to the impossibility of its performance, allowing in this case the termination or amendment of the contract by a court decision. The aim of the article is to reveal the promising directions for the development of Russian civil legislation on the basis of detailed analysis of the French model of impossibility of performance of an obligation under the Napoleonic Code of 1804 in comparison with another models of this legal institute (Pandect, Anglo-Saxon, Uniform models). The aim of the research determines its methodology, which is based on historical legal and comparative legal analysis mainly. The authors analyze the provisions of the Napoleonic Code of 1804 on the impossibility of performance of an obligation in comparison with both the relevant norms of the civil legislation of other foreign countries, and the norms of the Civil Code of Russia, taking into account the practice of their application. The prerequisites for the reform of the French law of obligations in 2016 in the relevant part are established. It is noted that the first version of the French Civil Code did not use general construction of impossibility of performance. Instead it defined legal effect of particular types of impossibility of performance. It regulated the situation when the object of an obligation was destroyed, ceased to be a thing in commerce or was lost. Authors point out that, unlike Russian, French judicial practice does not strictly follow the rule established by the French Civil Code on the automatic termination of an obligation due to the impossibility of its performance, allowing in this case the termination or amendment of the contract by a court decision. The authors declare no conflicts of interests.

DIGITALIZATION OF THE RUBLE: COMPARATIVE ASPECT

The subject of the study of this work was the analysis of the Russian civil legislation on money, on forms of money, the upcoming addition of the digital form of money, ways to improve legislation.

ON THE CLASSIFICATION OF RISK CONTRACTS AS SPECIAL CIVIL LAW STRUCTURES

The development of market relations is accompanied by an increase in the needs of participants in civil law relations for contractual forms that ensure the redistribution of risks. At the same time, the established list of legally enforceable contractual forms containing elements of a risk nature seems to be very flexible and does not meet the requirements of civil turnover. The main trend of reforming Russian civil legislation is the complication of both the system of risk contracts and their legal structure itself, in particular, new civil law constructions of risk contracts have emerged (a contract for compensation of losses, an option contract). These circumstances make it necessary to systematize them, to identify the features inherent in certain types of risk contracts. Purpose: comprehensive analysis and identification of signs of special civil law constructions of risk contracts, as well as the author's classification of risk contracts. Methods: general scientific and special research methods are used such as dialectical, comparative legal, formal logical, system analysis and synthesis. Results: the study helps to identify the multiplicity of classification criteria that can be reduced to two groups of grounds: general and special, on the basis of which special civil law constructions of risk contracts are distinguished.

The Institute of Commercial Concession in Russia and Franchising Abroad: Correlation, Problems of Legal Regulation and Options of their Solution

The successful development of entrepreneurial activity requires the availability of economic, industrial and organizational potential, it is associated with certain risks that can be minimized by concluding a commercial concession agreement. The ongoing political events have shown how changes can occur rapidly in all spheres of public life. These circumstances can become a springboard for development, in which a commercial concession agreement can act as an assistant. The article is devoted to the problems of regulation of a commercial concession contract in Russian law, a comparative analysis of Russian legislation and legislation of foreign countries concerning the regulation of the issues under consideration is carried out. The correlation of the concepts of "commercial concession agreement" and "franchising" is made. The etymology of the term "commercial concession" fixed in the Civil Code of the Russian Federation is investigated and its connection with the term "concession agreement" is analyzed. The necessity of presenting strict requirements inherent in the law of some foreign countries to the parties of the contract is denied. The amendments to the Russian civil legislation are reasoned. In order to set a balance between domestic and foreign norms, it is offered to replace the title of Chapter 54 of the Civil Code of the Russian Federation "Commercial Concession Agreement" with "Franchise Agreement". The obligations of the copyright holder to assist and control the quality of goods, works, and services under the contract should be formulated in the law in an imperative form. The necessity to supplement the Civil Code of the Russian Federation with a norm granting a user the right of the repudiation from the contract is justified. It also seems appropriate to supplement the articles regulating the obligations of the parties with provisions on disclosure of information by them at the pre-contractual stage of the agreement.

The concept and features of corporations in Russian legislation

As a result of the reform of Russian civil legislation in 2014, the concept of a corporation was enshrined in the Civil Code of the Russian Federation, but the problem of the legal nature and place of a corporation in Russian civil legislation remains open. In the legal literature, approaches to the definition of the term "corporations" are far from ambiguous. The reasons for the differences in the interpretation of the term "corporation" are seen depending on its legal status.

Zarozhdenie i evolyuciya torgovogo prava na Rusi v XI — ​ pervoj polovine XVII v.

The article touches upon the genesis and evolution of Russian trade legislation in the period of feudal fragmentation and centralized state. The legal norms contained in the oldest monuments of Russian law, which played a significant role in regulating trade relations in Russia, are analyzed. The author identifies patterns in the development and formation of Russian civil legislation in the field of trade activity.

Means of mitigating the risks assigned to the contractor in the EPC contract: the experience of the International Federation of Consulting Engineers and Russian civil legislation

The subject of the study is the legal conditions of mitigation (mitigation) of project risks, the bearing of which is assigned to the contractor by the terms of the EPC contract. One of the key features of the EPC contract, an agreement concluded for the implementation of an investment and construction project on a turnkey basis, is the maximum assignment to the contractor of risks associated with the failure to achieve the goals of the project. It is believed that the EPC contractor, as a professional and highly qualified representative of the construction industry, is able to manage project risks more effectively than the customer. The assignment of risk by the terms of the contract proforma to one of the parties implies the need to use organizational, economic and legal means to mitigate (mitigate) the burden of risk. This work is aimed at identifying civil legal means used by the contractor to mitigate the harmful effects of events and actions, the risk of which is assigned to him by the terms of the EPC contract and establishing the possibility of using these means in the conditions of the Russian legal system. Its achievement involves a comparative analysis of the model EPC contract - a model contract of the International Federation of Consulting Engineers for turnkey projects (FIDIC Silver Book 2017) and the norms of Russian civil legislation. В В В В В The results of the study indicate that it is possible in principle to apply the conditions of the 2017 FIDIC Silver Book, which establish means of mitigating the contractor's burden of bearing risks, in the conditions of Russian legislation, taking into account the following exceptions: (1) a security payment cannot be used as a means of mitigating the consequences of non-fulfillment by the contractor of a natural obligation; (2) compensation for property losses cannot be applied in the event of an unlawful claim by the customer for a guarantee of performance of contractual obligations provided by the contractor. The interrelated application of several civil legal means is aimed, ultimately, their application contributes to the achievement of the project goals, which is in the sphere of interests of both parties to the contract.

ЗАКОНОДАТЕЛЬНОЕ РЕГУЛИРОВАНИЕ И ДОКТРИНАЛЬНЫЕ КОНЦЕПЦИИ ОПРЕДЕЛЕНИЯ КОРПОРАЦИЙ И ИХ ПРИЗНАКОВ В РОССИЙСКОМ ПРАВЕ

The reform of the Russian civil legislation carried out in 2014 also affected the definition of “corporation”, which was legally enshrined. However, an issue of the legal nature and place of the corporation in the Russian civil legislation remains open. In the legal literature, approaches to the definition of the term “corporations” are far ambiguous. Various approaches to the concept under study are considered and the reasons for the differences in the interpre- tation of the term “corporation” are revealed depending on its legal personality status. The article notes that a corporation in Russian legislation is a generic concept for legal entities with the appropriate characteristics, and not its inde- pendent organizational and legal form, and also considers the characteristics of a corporation (the right of membership (participation) in a legal entity, as well as the formation by the founders (participants) of the highest manage- ment bodies). It is noted that the participants of the corporation not only cre- ate a new legal entity, but express its will through the will-forming bodies of the legal entity. The nature features of a corporation determine on what basis, and in what organizational and legal form it will be created. At the same time, participation (membership), an association of persons acts as a system-forming feature of the type of legal entity under consideration.

ГРАЖДАНСКО-ПРАВОВАЯ ЗАЩИТА РЕПУТАЦИИ РОССИЙСКОЙ ФЕДЕРАЦИИ ОТ ДИФФАМАЦИИ

Introduction: in the context of recent multiple cases of defamation against the Russian Federation, the article analyzes the possibility of civil-law protection of Russia’s reputation and right to reputation. We discuss the possibility of applying the methods of civil-law protection of intangible benefits and personal non-property rights specified in the norms of Russian civil legislation to the protection of Russia’s reputation from defamation, taking into account the specific nature of this intangible benefit and Russia's personal non-property right to this benefit. Purpose: to analyze the current state of social relations associated with the need for civil-law protection of such a type of intangible benefits as reputation and the personal non-property right of the Russian Federation for this benefit, which arose due to the multiple cases of dissemination of false defamatory information concerning the Russian state. Methods: general scientific and special scientific methods were used, including theoretical, formal-legal, comparative-legal ones, method of analysis and synthesis. Results: the paper gives definitions of civil-law protection and safeguarding of the civil right of the Russian Federation to reputation; notes that civil-law protection of reputation should be carried out by means not prohibited by law, i.e. with the use of the appropriate form, means, and methods of protection; investigates the application of the methods of civil-law protection established in Russian civil legislation to the protection of Russia’s reputation from defamation, taking into account the specific nature of reputation as an intangible benefit that Russia possesses. Conclusions: it is essential to distinguish independent methods of civil-law protection of the reputation of the Russian Federation from defamation as this would make it possible to provide effective protection and hold liable for acts of defamation.