Pub Date : 2022-09-22DOI: 10.18572/1812-383x-2022-9-42-46
P. P. Lang
The article reveals the features of abuses related to insolvency (bankruptcy) cases, gives the reasons for the limited normative fixing of measures to counter bad faith in these legal relations. The consequences and prerequisites of procedural dishonesty are analyzed. A distinction is made between abuses in insolvency cases, depending on the specifics of their occurrence.The problems associated with the use by the courts of the explanations of the highest court on the issues of determining the signs of insolvency are identified. Through the study of judicial practice, the use by the courts of the provided legal tools to counter abuses in the field of insolvency was discovered and described.
{"title":"Abuse of Law in the Area of Insolvency (Bankruptcy)","authors":"P. P. Lang","doi":"10.18572/1812-383x-2022-9-42-46","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-9-42-46","url":null,"abstract":"The article reveals the features of abuses related to insolvency (bankruptcy) cases, gives the reasons for the limited normative fixing of measures to counter bad faith in these legal relations. The consequences and prerequisites of procedural dishonesty are analyzed. A distinction is made between abuses in insolvency cases, depending on the specifics of their occurrence.The problems associated with the use by the courts of the explanations of the highest court on the issues of determining the signs of insolvency are identified. Through the study of judicial practice, the use by the courts of the provided legal tools to counter abuses in the field of insolvency was discovered and described.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129002270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-3-6
A. B. Stepin
The restoration of violated (disputed) civil rights in the sphere of economic relations is a complex intersectoral concept that represents the results of protective legal activity. Being derived from the content of the right to protection (Article 45 of the Constitution of the Russian Federation), restoration takes the appropriate forms of law-making (federal, regional, municipal), regulatory (normative, local, judicial, administrative), law enforcement (restorative, punitive), legal explanatory (domestic, international). Expressing the legal activity of the subjects of the right to protection and the subjects of the implementation of this right, the methods of restoring civil rights take place in a conflict legal relationship in the presence of a violated (disputed) right. In the absence of these conditions, the protective activity becomes imaginary, since it does not generate legal consequences for the applicant, and the adopted law enforcement act in such conditions is unenforceable. The protection of civil rights in the civil and administrative order is based on the observance by the parties to the conflict of the officially established order (procedure). Failure to comply with the requirements for the form of protection and the procedure is not allowed to exercise the right to satisfy the stated requirements and, as a result, restore the right.
{"title":"Challenging Issues of Restitution of Civil Rights of Parties to Economic Relations","authors":"A. B. Stepin","doi":"10.18572/1812-383x-2022-1-3-6","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-3-6","url":null,"abstract":"The restoration of violated (disputed) civil rights in the sphere of economic relations is a complex intersectoral concept that represents the results of protective legal activity. Being derived from the content of the right to protection (Article 45 of the Constitution of the Russian Federation), restoration takes the appropriate forms of law-making (federal, regional, municipal), regulatory (normative, local, judicial, administrative), law enforcement (restorative, punitive), legal explanatory (domestic, international). Expressing the legal activity of the subjects of the right to protection and the subjects of the implementation of this right, the methods of restoring civil rights take place in a conflict legal relationship in the presence of a violated (disputed) right. In the absence of these conditions, the protective activity becomes imaginary, since it does not generate legal consequences for the applicant, and the adopted law enforcement act in such conditions is unenforceable. The protection of civil rights in the civil and administrative order is based on the observance by the parties to the conflict of the officially established order (procedure). Failure to comply with the requirements for the form of protection and the procedure is not allowed to exercise the right to satisfy the stated requirements and, as a result, restore the right.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"128 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127814465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-7-10
S. Burmistrova
The types of interests regulated by law are investigated. It is argued that in the process of legal regulation, interests receive mechanisms of implementation in the form of subjective rights and legitimate interests. It is proved that among the legitimate interests there are those that are capable of turning into a subjective right (intermediate legitimate interests) and are not capable of this (final legitimate interests). It is shown which powers are covered by the content of subjective rights and legitimate interests, which powers are the main ones. It is argued that judicial protection is aimed at restoring the possibility of exercising this right, which is crucial for the realization of rights and legitimate interests.
{"title":"Subjective Rights and Legal Interests: What Should the Result of Judicial Protection Be Like","authors":"S. Burmistrova","doi":"10.18572/1812-383x-2022-1-7-10","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-7-10","url":null,"abstract":"The types of interests regulated by law are investigated. It is argued that in the process of legal regulation, interests receive mechanisms of implementation in the form of subjective rights and legitimate interests. It is proved that among the legitimate interests there are those that are capable of turning into a subjective right (intermediate legitimate interests) and are not capable of this (final legitimate interests). It is shown which powers are covered by the content of subjective rights and legitimate interests, which powers are the main ones. It is argued that judicial protection is aimed at restoring the possibility of exercising this right, which is crucial for the realization of rights and legitimate interests.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"446 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120939273","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-28-32
Sergey V. Myshyakov
The right to appeal judicial acts to a higher court is an expression of the right to judicial protection, to equal access to justice and to a fair trial of a civil conflict. The appeal of a court decision that has not entered into force and has entered into legal force reduces the likelihood of an erroneous resolution of the dispute and the issuance of an unlawful court decision. The system of challenging judicial acts in the civil process is aimed at an effective and fair trial of cases. Under fair trial, this article considers the application by a judge of the norms of substantive and procedural law according to their literal, comparative and doctrinal interpretation and in accordance with judicial practice expressed in judicial acts of the Supreme Court of the Russian Federation. This article discusses the procedural aspects of the appeal and cassation appeal of court decisions.
{"title":"Procedural Aspects of Contestation of Judicial Acts in the Russian Civil Procedure","authors":"Sergey V. Myshyakov","doi":"10.18572/1812-383x-2022-1-28-32","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-28-32","url":null,"abstract":"The right to appeal judicial acts to a higher court is an expression of the right to judicial protection, to equal access to justice and to a fair trial of a civil conflict. The appeal of a court decision that has not entered into force and has entered into legal force reduces the likelihood of an erroneous resolution of the dispute and the issuance of an unlawful court decision. The system of challenging judicial acts in the civil process is aimed at an effective and fair trial of cases. Under fair trial, this article considers the application by a judge of the norms of substantive and procedural law according to their literal, comparative and doctrinal interpretation and in accordance with judicial practice expressed in judicial acts of the Supreme Court of the Russian Federation. This article discusses the procedural aspects of the appeal and cassation appeal of court decisions.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117163638","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-56-60
Sutormin N. Alexandrovich
The article is dedicated to collective litigation of China. The author researches such existing forms of collective actions as joint actions, representative actions and actions in public interests. The specific character of Chinese way of development of collective procedures is analyzed. The author concludes that Chinese regulation of representative actions is at the stage of formation and needs adjustment. One of the latest changes researched in the article became the reform of Securities Act in 2019–2020. On the whole China adopted the norms on collective regulation from Western countries and Japan, but at the same time these norms received national color. Some ideas, which were realized in China and became practically viable, can be adopted by our country.
{"title":"Collective litigation in China","authors":"Sutormin N. Alexandrovich","doi":"10.18572/1812-383x-2022-1-56-60","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-56-60","url":null,"abstract":"The article is dedicated to collective litigation of China. The author researches such existing forms of collective actions as joint actions, representative actions and actions in public interests. The specific character of Chinese way of development of collective procedures is analyzed. The author concludes that Chinese regulation of representative actions is at the stage of formation and needs adjustment. One of the latest changes researched in the article became the reform of Securities Act in 2019–2020. On the whole China adopted the norms on collective regulation from Western countries and Japan, but at the same time these norms received national color. Some ideas, which were realized in China and became practically viable, can be adopted by our country.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114833823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-46-50
I. V. Stepanenko
In the article the author reveals the relevance of the problem of insolvency trustees’ consent to be approved as a financial manager in consumer bankruptcy proceedings and, having identified common features of the status and functioning of the advocacy and self-regulated organizations of arbitration managers, makes proposals to change the current legislation in terms of developing a mechanism for approval of financial managers, by analogy with the mechanism of appointment of defence counsel in criminal proceedings.
{"title":"The Challenging Issue of Obtainment of a Consent of an Official Receiver for the Approval of the Debtor’s Property by a Financial Manager within the Framework of a Private Bankruptcy Procedure","authors":"I. V. Stepanenko","doi":"10.18572/1812-383x-2022-1-46-50","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-46-50","url":null,"abstract":"In the article the author reveals the relevance of the problem of insolvency trustees’ consent to be approved as a financial manager in consumer bankruptcy proceedings and, having identified common features of the status and functioning of the advocacy and self-regulated organizations of arbitration managers, makes proposals to change the current legislation in terms of developing a mechanism for approval of financial managers, by analogy with the mechanism of appointment of defence counsel in criminal proceedings.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128273562","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-19-22
A. A. Romanov
The article is devoted to topical issues of maritime law in the field of regulation of relations for the salvage of people, ships and property in distress at sea. The international legal regulation of this issue is given together with a comparative legal study of the national legislation of some states on salvation at sea.
{"title":"Salvage in the International and Foreign Legal Practice","authors":"A. A. Romanov","doi":"10.18572/1812-383x-2022-1-19-22","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-19-22","url":null,"abstract":"The article is devoted to topical issues of maritime law in the field of regulation of relations for the salvage of people, ships and property in distress at sea. The international legal regulation of this issue is given together with a comparative legal study of the national legislation of some states on salvation at sea.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132552062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-33-37
E. F. Evseev
The article is devoted to a critical analysis of the amendment, which excluded the right to file a private complaint against a court ruling to leave the statement of claim without progress in civil proceedings. The inconsistency of possible arguments in favor of this amendment is revealed. The substitute procedure for challenging this definition by appealing against the decision on the return of the statement of claim is analyzed, and its inadequacy to the problem being solved is revealed. Based on this, the author comes to the conclusion that it is necessary to return to the previous appellate procedure for appealing directly to the ruling on leaving the statement of claim without movement.
{"title":"On Appeal of the Ruling for Suspension of a Statement of Claim in a Civil Procedure","authors":"E. F. Evseev","doi":"10.18572/1812-383x-2022-1-33-37","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-33-37","url":null,"abstract":"The article is devoted to a critical analysis of the amendment, which excluded the right to file a private complaint against a court ruling to leave the statement of claim without progress in civil proceedings. The inconsistency of possible arguments in favor of this amendment is revealed. The substitute procedure for challenging this definition by appealing against the decision on the return of the statement of claim is analyzed, and its inadequacy to the problem being solved is revealed. Based on this, the author comes to the conclusion that it is necessary to return to the previous appellate procedure for appealing directly to the ruling on leaving the statement of claim without movement.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129314169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-37-40
Svetlana V. Suvorova
This article is devoted to the analysis of such an institution of insolvency (bankruptcy) legislation as subsidiary liability of the controlling persons of the debtor.
本文致力于分析这种制度的破产(破产)立法作为债务人的控制人的附属责任。
{"title":"On the Determination of Persons Controlling a Debtor","authors":"Svetlana V. Suvorova","doi":"10.18572/1812-383x-2022-1-37-40","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-37-40","url":null,"abstract":"This article is devoted to the analysis of such an institution of insolvency (bankruptcy) legislation as subsidiary liability of the controlling persons of the debtor.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132001540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-23-27
Mizamir Alieskerov
The article examines the issues of the use of evidence that are important in the adversarial process. The author proposes that the persons participating in the experience cannot be deprived of the opportunity to apply the tactics. It is advisable to establish a rule according to which the court of first instance participating in the case can track the disclosure of evidence by this person before hearing the explanations of the persons participating in the case and questioning the witnesses participating in the case. The author also comes to the conclusion of the court about the inadmissibility of the first instance’s refusal to accept evidence on the grounds of their untimely disclosure. The application of the sanction does not allow ensuring the application of the principle of proportionality in relation to the substantive consequences for the violator. At the same time, such sanctions as a fine, recovery of compensation for the actual loss of time, recovery of court costs are possible. The actions of the court are also important, contributing to the situational consolidation of the international interests of the parties, in which both parties are interested in the disclosure of certain evidence.
{"title":"Disclosure of Evidence in an Adversary Civil Procedure","authors":"Mizamir Alieskerov","doi":"10.18572/1812-383x-2022-1-23-27","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-23-27","url":null,"abstract":"The article examines the issues of the use of evidence that are important in the adversarial process. The author proposes that the persons participating in the experience cannot be deprived of the opportunity to apply the tactics. It is advisable to establish a rule according to which the court of first instance participating in the case can track the disclosure of evidence by this person before hearing the explanations of the persons participating in the case and questioning the witnesses participating in the case. The author also comes to the conclusion of the court about the inadmissibility of the first instance’s refusal to accept evidence on the grounds of their untimely disclosure. The application of the sanction does not allow ensuring the application of the principle of proportionality in relation to the substantive consequences for the violator. At the same time, such sanctions as a fine, recovery of compensation for the actual loss of time, recovery of court costs are possible. The actions of the court are also important, contributing to the situational consolidation of the international interests of the parties, in which both parties are interested in the disclosure of certain evidence.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128100263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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