Unilateral Refusal Research Articles

Правовые особенности включения сведений в реестр недобросовестных поставщиков в ходе осуществления корпоративных закупок в условиях санкционной реальности

The author of the article analyzes the legal aspects of including information in the register of unscrupulous suppliers, especially as a result of the unilateral refusal of a corporate customer under the influence of foreign sanctions to fulfill the contract. Based on the analysis of the regulatory framework, law enforcement practice, doctrinal positions, as well as statistical data, the article attempts to analyze the mechanism of implementation of the introduced regulatory measures to protect the interests of customers under sanctions pressure. It is suggested that these mechanisms will be aimed at deterring and minimizing the negative effect of sanctions on corporate customers. At the same time, the author points out the shortcomings of the amendments made to the Procurement Law, including those expressed in the lack of awareness of the procurement participant about the existence of sanctions restrictions on the customer, as well as the lack of proportionality of the measure of responsibility applied to the supplier to the extent of harm caused to the customer.

A Contract for Rendering Paid Services in the Civil Law of Russia and France

The paper provides a comparative legal research on the regulation of relations for rendering paid services under civil laws of Russia and France. The authors note the significant influence of Roman private law on the formation of legal regulation of the relations under consideration in France. The paper explores the problems of differentiating legal regimes of works and services, as well as the admissibility of their convergence. It also analyzes the possibility of involving third parties in the performance of a contract for rendering paid services and pecularities of its termination, including termination in the case of impossibility of execution. The relevance of the research is explained by the fact that Russian legislation and law enforcement practice lack comprehensive criteria for differentiating between works and services, which affects the legal qualification of relations under consideration. In order to find a solution to this problem and ways to improve the quality of legal regulation of relations of providing paid services, the authors turn to the study of the French law and order. The authors come to the conclusion that French legislation allows for the convergence of legal and economic concepts of services. This approach makes it possible to combine into a special group all known contracts related to useful economic activity in favor of the customer, as well as to approach the issue of interrelation between the contract for rendering paid services and the works contracts. The analysis of the concept and legal regime of works and services allows us to distinguish two features — legal and factual — inherent in the works contract and paid services contract. Within the framework of specifics of the termination of the paid services contract, the authors investigate three problems: unilateral refusal to perform the contract, termination of the contract in the event of the death of the parties and the impossibility of its execution.

Right to unilaterally refuse to perform the contract and change unilaterally the terms of the obligation to provide hotel services

The work on the basis of the analysis of legislation, materials of judicial practice, legal doctrine and taking into account the modern realities of the hotel business reveals the peculiarities of the realization by consumers (customers) and hotel organizations of the right to declare a unilateral refusal to fulfill the contract and unilaterally changing the conditions of the obligation to provide hotel services. Questions about the legal consequences of exercising the right to unilateral refusal or unilateral change in the terms of the obligation are formulated and resolved — the legality of the penalty, the retention of actual expenses incurred, the refusal of the hotel organization to provide services due to the peculiarities of the consumer’s identity, the presence of force majeure and security threats, the lack of opportunities for providing services due to overbooking, etc.

APPLICATION OF SURROGACY TECHNOLOGY BY FOREIGNERS IN UKRAINE (LEGAL CONFLICT).

The aim: To establish legal conflicts between the use of surrogacy technology by foreigners in Ukraine, to develop mechanisms to overcome them. Materials and methods: The study used a methodology that embodies an interdisciplinary approach that allows systematic analysis of theoretical and practical aspects of legal conflicts in the use of surrogacy technology by foreigners in Ukraine, as well as develop proposals for their elimination. Conclusions: It is proposed to adopt at the level of an international act unified approaches to determining the origin of a child born as a result of the use of surrogate motherhood technology to eliminate legal conflicts. The need to amend the legislation of Ukraine and the establishment of a ban on unilateral refusal from the surrogacy agreement after the embryo has been implemented is argued. Based on the analysis of judicial practice, it was established what problems may arise in the registration of paternity and maternity by foreign genetic parents in connection with the application of the surrogacy procedure by foreigners in Ukraine in cases where their native legislation does not permit or restricts surrogacy.

НЕСПРАВЕДЛИВЫЕ УСЛОВИЯ В ДОКТРИНЕ И ИХ ПРОЯВЛЕНИЕ В ЛИЦЕНЗИОННЫХ СОГЛАШЕНИЯХ

The article examines the criteria of unfair terms in the civil law of the Russian Federation and the specifics of their manifestation in license agreements. The conducted research has shown that the common markers of unfair terms are a clear burden on one of the parties and a violation of the balance of interests. There are also specific manifestations, such as excessive liability, excessive price, the possibility of unilateral refusal on unfavorable terms, etc. From the analysis of domestic and foreign literature and practice, it follows that unfair terms in license agreements take almost the same forms as in contracts from Part II of the Civil Code of the Russian Federation. However, there is a specificity due to a specific result of intellectual activity.

Способы реализации отказа от права на юридическую помощь в сфере уголовного судопроизводства

The article examines the ways and forms of legal refusal of the right to receive legal assistance in criminal proceedings, examines the factors affecting the process of implementation by participants of criminal procedural legal relations of the procedural right belonging to them. The criteria of validity of unilateral refusal of the right to legal aid are analyzed.

К вопросу об императивности или диспозитивности нормы пункта 1 статьи 782 ГК РФ, устанавливающей право заказчика на немотивированный отказ от договора возмездного оказания услуг

In this article, the author explores the question of the qualification of Paragraph 1 of Article 782 of the Civil Code of the Russian Federation, which gives the right to unmotivated refuse to perform a contract for the provision of paid services. The paper considers various approaches to the issue of dispositivity or imperativeness of this norm. The positions of scientists on the legal nature of 782 of the Civil Code of the Russian Federation are considered. The author analyzes judicial practice for the possibility of blocking the right to unilateral refusal. Based on the presented analysis, conclusions are drawn about the dispositivity of 782 of the Civil Code of the Russian Federation regarding the inadmissibility of blocking the right to unilateral refusal itself, at the same time, the parties are allowed to establish a different procedure for the implementation of this right. A possible option for improving domestic legislation regulating the termination of a contract for the provision of paid services is also proposed.

An Inheritance Contract: a Critical Look at the Legal Construction

The legal structure of an inheritance contract introduced into the system of Russian civil law on June 1, 2019, caused an ambiguous evaluation in the doctrine of inheritance law. Analyzing various points of views of scholars and legal prescriptions, the author expresses her opinion on this legal structure highlighting in particular an imbalance in the legal status of the parties to the inheritance contract, expressed in the possibility of unilateral refusal to execute it by only one of the parties, in the absence of legal protection of the testator's counterparty when the latter alienates the property specified in the inheritance contract. This makes this legal structure practically non-binding for the testator and reduces its relevance. The author substantiates that the legal prohibition of concluding an inheritance contract through a representative applies only to the testator. The assumption is made that the reference to a third party acquiring the right of inheritance does not turn this agreement into a contract made in favor of the third party. The paper focuses on the controversial issue of the limits of the discretion of the testator and the essential conditions of the inheritance contract. The author differntiates the gaps in the law in the regulation of a number of issues related to the conclusion and execution of an inheritance contract, some wordings of Art. 1118 and 1140.1 of the Civil Code of the Russian Federation and suggests proposals that improve rules under consideration. The author comes to the conclusion that the legal structure of inheritance law raises many questions caused by faulty legal formulations and insufficient completeness of legal regulation, which can give rise not only to doctrinal discussions, but also to contradictory law enforcement practice.

The Legal Nature of Payment for Unilateral Refusal to Fulfill an Obligation

The paper analyzes the possibility of unilateral refusal to fulfill an obligation through the payment of a monetary sum. The multidimensionality of the development of a legal relationship related to the fulfillment of an obligation is investigated in the context of the opportunity to use various legal remedies at each stage of a legal relationship. The paper shows the transformation of the legal statuses of the creditor and the debtor in the process of exercising rights and fulfilling obligations. It is substantiated that, depending on the stage of development of the legal relationship in mutual obligations, the creditor and the debtor alternately change their capabilities to demand performance and fulfill obligations. Failure to fulfill an obligation at any stage leads to the possibility of making claims for the protection of the right. It is indicated that the agreement in the contract of the obligation of the debtor to pay the creditor a certain amount of money in the event of refusal to perform the obligation does not change the legal nature of the obligation and does not make it monetary. It is proved that the refusal to fulfill the obligation becomes legally possible only after the fulfillment of the obligation to pay the counterparty a sum of money. The author establishes the legal nature of such a replacement in comparison with the novation of debt into a debt obligation. It is proved that a different interpretation of the law violates the balance of interests between the debtor and the creditor.

Post-Dodon Moldova: Prospects for the Development of RussianMoldovan Relations

The article is dedicated to the prospects for the development of Russian-Moldovan relations after the victory of Maia Sandu in the presidential elections in the Republic of Moldova. The work examines the historical background and the current state of political and economic cooperation between Russia and Moldova. It is outlined that Russia retains its importance for Moldova in the felds of energy security and food exports; at the same time, a signifcant economic imbalance in relations is emphasized. The authors point to the instability of bilateral interaction due to three circumstances: external factors (primarily, the influence of the European Union), the stance of the newly elected president of the republic, and the balance of political forces in the national parliament of Moldova. According to the authors, the assumption of power by a pro-European politician does not imply Moldova’s unilateral refusal to cooperate with Russia. Despite the obvious intention to accelerate the country’s integration into the European Union, the new leadership is not yet ready to abandon the dialogue with Moscow. In the political, economic, and military profles of Moldova, Russia remains one of the most important partners. Since the internal political transformations in the republic carry the potential to diminish Russian influence over Moldova, the authors highlight possible steps on the Russian side that are capable of strengthening the existing foundation of positive interaction between countries, based on a study of the current confguration of bilateral relations. It is particularly underlined that against the background of the existing parameters of the modern system of international relations, even in the event of the most pessimistic scenario, the damage to Russian interests (apart from reputational losses) can be assessed as relatively insignifcant.

LEGAL CONSEQUENCES OF VIOLATION OF THE VOLUNTARY HEALTH INSURANCE CONTRACT UNDER UKRAINIAN LAW

The article is devoted to the study of the peculiarities of the legal consequences of violation of the contract of voluntary medical insurance under the legislation of Ukraine. Special attention is paid to the legal consequences of violation of the contract of voluntary medical insurance, such as: unilateral refusal of the contract, modification of the contract, payment of a penalty. The legal positions of the jurisprudence on the issues under consideration are given. The study of the legal consequences of breaching the health insurance contract is important in connection with the following. Such an appropriate form of mutual expression of the will of two or more persons is of scientific interest in view, firstly, of the increase in the share of the said contract in the structure of insurance and, secondly, of the direction of development of state policy in modern conditions in the field of health care. In the article there are specified the features of the medical insurance contract. There are also specified its peculiarities. Examining the legal consequence of a violation of a voluntary health insurance contract, such as a unilateral refusal, it was established that the Civil Code of Ukraine grants certain freedom to the parties in the event of termination of the contract. However, the legislation establishes certain restrictions in case of unilateral refusal of the insurer from the personal insurance contract. Cases of the insured's refusal to make insurance compensation are summarized in the category: those caused by the intentional behavior of the insured person (submission of false information about the fact of the occurrence of the insured event, as well as intentional actions of the insured person (insured person) aimed at the occurrence of an insured event, noncompliance with the prescriptions of the attending physician, which led to a complication of the disease)as well as those whose reasons do not depend on the insured's will (insured person) (receiving services that exceed the insured amount, suffering injuries or illnesses due to force majeure or receiving medical services that are not included in the insurance program). Having considered the judicial practice in cases of unilateral refusal of the contract, it was established that in case of violation of the contract of voluntary medical insurance, it is common for the insured to inattentive study the circumstances in which the insurer is obliged to make certain payments, as well as a false belief that they are not covered by the insurance case.

Договор коммерческой концессии в российском праве: вопросы теории и практики

The article is devoted to the analysis and resolution of problems arising during the conclusion and execution of a commercial concession agreement. The article substantiates the consideration of a commercial concession agreement as an independent type of civil contract. The criterion for the independence of this type of agreement is the presence of its own subject matter (the rightholder performing actions to grant the user the right to use a set of exclusive rights), as well as othertractors are differentiated. It is concluded that quality control of goods (works, services) produced (performed, rendered) by the user must be considered as a duty of the copyright holder, which cannot be excluded by agreement of the parties. The reasons for the absence of the legal obligation of the copyright holder to offer the user to conclude a contract for a new term are established. Special rules on termination of a commercial concession agreement are studied. The cases for motivated and unmotivated unilateral refusal of the contract are named. Specific proposals have been developed to improve the rules on a commercial concession agreement.

Unilateral Refusal Of A Lease Agreement: Theoretical And Practical Aspects

The article deals with the unilateral refusal of a lease agreement as a way of self-defence of the tenant's and landlord's rights. The author expresses an opinion that unilateral refusal of a lease agreement by the tenant or landlord in cases provided by law or the agreement itself as a consequence of violation of the terms of a lease agreement should be considered is a sanction for illegal behavior of the parties of the agreement.
 The author notes that unilateral refusal of a lease agreement in case of breaching the agreement by the other party should not be equated to termination of a lease agreement at the request of one of the parties. They are independent grounds for termination of the agreement, which are characterized by a different mechanism of implementation, for example, the termination of a lease agreement at the request of one of the parties is always carried out in court.
 The analysis of case law shows that in order to be able unilaterally refuse from the lease agreement, when concluding an agreement it is necessary to state with a due precision the grounds for unilateral refusal for each party to the agreement.
 The author draws the conclusion that the simplified mechanism of unilateral refusal of a lease agreement should include two general stages: the emergence of grounds for unilateral refusal, and proper notification of the other party about the refusal of the agreement.

공정거래법상 단독의 거래거절 규제에 관하여

공정거래법상 단독의 거래거절 규제에 관하여

Right of Unilateral Refusal of Landlord and Tenant from Lease of Building (Facilities)

Right of Unilateral Refusal of Landlord and Tenant from Lease of Building (Facilities)

Right of Unilateral Refusal of Landlord and Tenant from Lease of Building (Facilities)

Right of Unilateral Refusal of Landlord and Tenant from Lease of Building (Facilities)

Расторжение договора подряда в связи с односторонним отказом от его исполнения

Расторжение договора подряда в связи с односторонним отказом от его исполнения

Недопустимость одностороннего отказа от исполнения обязательства

Недопустимость одностороннего отказа от исполнения обязательства

Возмещение убытков при одностороннем немотивированном отказе от исполнения договора возмездного оказания услуг

Возмещение убытков при одностороннем немотивированном отказе от исполнения договора возмездного оказания услуг

FRAND and Antitrust

This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation. As the Supreme Court has made clear many times, every antitrust case must consider the market environment in which conduct is evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role is to evaluate how challenged restraints operate within the venture and condemn unreasonably anticompetitive practices. The district court and Ninth Circuit’s approaches in the Qualcomm litigation illustrate one court that did that and one that did not. The Ninth Circuit also held that conduct should be tested by its harm to rivals, not to consumers. That conclusion conflicts with decades of antitrust jurisprudence. Section 1 of the Sherman Act requires an agreement that threatens to reduce market output, thereby raising prices. For exclusionary practices the immediate target of anticompetitive conduct is rivals, but the ultimate harm is suffered by consumers. The antitrust issue of unilateral refusals to deal is too often confused with the essential facility doctrine. The essential facility doctrine is based on the idea that some assets are so essential to commerce that the owner has a duty to share them. By contrast, the refusal to deal rule is rooted in a specific prior contractual obligation, reliance and path dependence, and subsequent repudiation. Many joint ventures involve a significant sunk investment in assets that are dedicated to the venture. If one firm can later extract itself and commandeer the relevant technology, it can leave the remaining firms at a significant competitive disadvantage, with the effect of transferring market share, reducing output, raising prices, and ultimately undermining the competitive promise of such ventures. While the essential facility doctrine is conducive to competitor passivity, the Aspen refusal to deal rule facilitates competitor investment. The debate over “holdup” or “holdout” in standard setting organizations has occasional antitrust relevance. Holdout occurs when implementers conspire to exclude patentees or suppress royalties. But the structure and membership of the SSOs that employ FRAND make that explanation highly unlikely. Standard essential patents are largely self-declared and significantly over declared, so the holdout story posits victims flocking to a cartel rather than seeking to avoid it. In addition, “holdout” hypothesizes agreements to force patentees to accept infra-market royalties, but FRAND royalties are determined post-commitment by independent tribunals, and there is no evidence of systematic undercompensation. Finally, entitlement to an injunction on a FRAND-encumbered patent depends on two factors. First, the plaintiff must show its own “clean hands,” which is undermined by its violation of FRAND agreements or the antitrust laws. Second, entitlement to an injunction is limited by the patentee’s own contractual commitment to license out a patent to one who is willing to pay a FRAND royalty.