Pub Date : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-88-107
M. Lukhmanov
This article is devoted to a critical analysis of the argument that damage must be attributed to a person who is economically easier to bear its consequences, in relation to the main area of its application in private law discourse de lege lata, i.e., justification of the phenomenon of strict liability in tort law. It is argued that the main theories arising from this argument turn out to be inapplicable to the problem of alternative causation, despite the occasional use of this argument in case law.
{"title":"THE IMPUTATION OF HARM TO A PERSON WHO IS ECONOMICALLY EASIER TO BEAR ITS CONSEQUENCES AS AN ARGUMENT FOR SOLVING THE PROBLEM OF ALTERNATIVE CAUSATION IN TORT LAW","authors":"M. Lukhmanov","doi":"10.24031/1992-2043-2022-22-1-88-107","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-88-107","url":null,"abstract":"This article is devoted to a critical analysis of the argument that damage must be attributed to a person who is economically easier to bear its consequences, in relation to the main area of its application in private law discourse de lege lata, i.e., justification of the phenomenon of strict liability in tort law. It is argued that the main theories arising from this argument turn out to be inapplicable to the problem of alternative causation, despite the occasional use of this argument in case law.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81379446","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-30-44
E. Sukhanov
The main results of the 30-year work of the Private Law Research Centre and the main directions of the forthcoming scientific work are highlighted. The negative features of the concept of economic analysis of law, which are proposed to be gradually replaced by legal analysis of the economy, as well as the negative aspects of excessive enthusiasm for the legal registration of business relations and borrowing foreign experience in legal development, are noted. The necessity of developing a general theory of civil law is proved, and the groundlessness of the search and reinforcement of theoretical structures directly in law enforcement (judicial) practice is pointed out.
{"title":"THE RESEARCH CENTRE AND DEVELOPMENT OF DOMESTIC CIVIL STUDIES","authors":"E. Sukhanov","doi":"10.24031/1992-2043-2022-22-1-30-44","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-30-44","url":null,"abstract":"The main results of the 30-year work of the Private Law Research Centre and the main directions of the forthcoming scientific work are highlighted. The negative features of the concept of economic analysis of law, which are proposed to be gradually replaced by legal analysis of the economy, as well as the negative aspects of excessive enthusiasm for the legal registration of business relations and borrowing foreign experience in legal development, are noted. The necessity of developing a general theory of civil law is proved, and the groundlessness of the search and reinforcement of theoretical structures directly in law enforcement (judicial) practice is pointed out.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"26 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83652622","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-15-29
The review highlights the main content of the reports presented at the conference dedicated to the 30th anniversary of the Alexeev Private Law Research Centre. The reports of the participants were based on their articles published in the collection “Private Law in the Countries of the Former USSR” (Moscow: Statut, 2022). They examined the history of formation, structure, main features and prospects for the development of civil legislation in the states – the former republics of the USSR.
{"title":"INTERNATIONAL SCIENTIFIC AND PRACTICAL CONFERENCE “RECENT HISTORY OF PRIVATE LAW: TO THE 30TH ANNIVERSARY OF THE RESEARCH CENTRE”","authors":"","doi":"10.24031/1992-2043-2022-22-1-15-29","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-15-29","url":null,"abstract":"The review highlights the main content of the reports presented at the conference dedicated to the 30th anniversary of the Alexeev Private Law Research Centre. The reports of the participants were based on their articles published in the collection “Private Law in the Countries of the Former USSR” (Moscow: Statut, 2022). They examined the history of formation, structure, main features and prospects for the development of civil legislation in the states – the former republics of the USSR.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79671612","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-45-58
A. Rudokvas
Certainty of title transfer under the real estate transactions together with the public disclosure of the register of titles on the real estates is declared in the Civil Code of Russia to be a fundamental principle underlying the register of titles under Russian law. But in fact, the public credibility of the registration record is lacking because it is mixed unknowingly by the Russian legislator with the principle of the protection of the bona fide acquirer, which is applied to moveable things. This misunderstanding resulted in a lot of real estate lawsuits, which are almost impossible in Germany. Some other German legal institutions which support the certainty of title, such as the objection to the record in the register and the registration of the priority notice are not borrowed by the Russian legislator in their proper form. All this leads to the credibility gap regarding the data of the register despite the Russian registration system looks like similar to that of Germany.
{"title":"ON THE IMPACT OF THE REGISTRATION SYSTEM OF THE REAL ESTATE TURNOVER","authors":"A. Rudokvas","doi":"10.24031/1992-2043-2022-22-1-45-58","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-45-58","url":null,"abstract":"Certainty of title transfer under the real estate transactions together with the public disclosure of the register of titles on the real estates is declared in the Civil Code of Russia to be a fundamental principle underlying the register of titles under Russian law. But in fact, the public credibility of the registration record is lacking because it is mixed unknowingly by the Russian legislator with the principle of the protection of the bona fide acquirer, which is applied to moveable things. This misunderstanding resulted in a lot of real estate lawsuits, which are almost impossible in Germany. Some other German legal institutions which support the certainty of title, such as the objection to the record in the register and the registration of the priority notice are not borrowed by the Russian legislator in their proper form. All this leads to the credibility gap regarding the data of the register despite the Russian registration system looks like similar to that of Germany.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75355120","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-59-65
V. I. Senchishchev
The article analyzes the concepts of “land plot” in the previous and new editions of the Civil Code of the Russian Federation, in the Land Code of the Russian Federation and in the draft law on the new edition of the section of the Civil Code of the Russian Federation devoted to property law. The shortcomings of the existing legislative definitions are noted and the need to introduce into the concept of “land plot” an indication of its state cadastral registration, which turns this object into an individually defined thing – an object of civil circulation, is justified.
{"title":"ON THE DEFECTS OF THE DEFINITION OF THE CONCEPT “LAND PLOT” IN THE FEDERAL LAW NO. 430-FZ","authors":"V. I. Senchishchev","doi":"10.24031/1992-2043-2022-22-1-59-65","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-59-65","url":null,"abstract":"The article analyzes the concepts of “land plot” in the previous and new editions of the Civil Code of the Russian Federation, in the Land Code of the Russian Federation and in the draft law on the new edition of the section of the Civil Code of the Russian Federation devoted to property law. The shortcomings of the existing legislative definitions are noted and the need to introduce into the concept of “land plot” an indication of its state cadastral registration, which turns this object into an individually defined thing – an object of civil circulation, is justified.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"617 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77073664","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-136-166
E. Sukhanov
The commentary reveals the civil law essence and forms (types) of the structure of a legal entity in the current Russian legislation. The differences and legal significance of the division of legal entities into corporate and unitary, as well as commercial and non-profit organizations and their characteristic features are shown. Both positive aspects and contradictions and shortcomings of some formulations and approaches that appeared in the new edition of Chapter 4 of the Civil Code of the Russian Federation, dedicated to legal entities, as a result of its update in 2014.
{"title":"COMMENTS ON ARTICLES 48, 50 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION ","authors":"E. Sukhanov","doi":"10.24031/1992-2043-2022-22-1-136-166","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-136-166","url":null,"abstract":"The commentary reveals the civil law essence and forms (types) of the structure of a legal entity in the current Russian legislation. The differences and legal significance of the division of legal entities into corporate and unitary, as well as commercial and non-profit organizations and their characteristic features are shown. Both positive aspects and contradictions and shortcomings of some formulations and approaches that appeared in the new edition of Chapter 4 of the Civil Code of the Russian Federation, dedicated to legal entities, as a result of its update in 2014.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87577251","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-108-135
N. Spiridonova
Both foreign and domestic doctrine have traditionally considered right to exclude others from use of the invention as a key or even the only component of exclusive patent rights. Economic relations regulated by patent law are currently rapidly developing though, and today we should acknowledge the economic shift that requires reconceptualization of the dominant postulates of patent law theory. In particular, the prevalent economic functions of contemporary patent law are, firstly, technology transfer aimed at disseminating and practical implementation of innovations, and secondly, ensuring optimal allocation of information about innovations for their proper commercialization and commodification, as well as for their further development. In turn, the above functions in terms of patent rights correlate to right to use the invention and to delegate such use to third parties. Those rights are the rights to the authorized person’s own de facto and de jure actions, in other words, privileges (use rights) and powers (disposal rights).
{"title":"ON STRUCTURE OF PATENT RIGHTS","authors":"N. Spiridonova","doi":"10.24031/1992-2043-2022-22-1-108-135","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-108-135","url":null,"abstract":"Both foreign and domestic doctrine have traditionally considered right to exclude others from use of the invention as a key or even the only component of exclusive patent rights. Economic relations regulated by patent law are currently rapidly developing though, and today we should acknowledge the economic shift that requires reconceptualization of the dominant postulates of patent law theory. In particular, the prevalent economic functions of contemporary patent law are, firstly, technology transfer aimed at disseminating and practical implementation of innovations, and secondly, ensuring optimal allocation of information about innovations for their proper commercialization and commodification, as well as for their further development. In turn, the above functions in terms of patent rights correlate to right to use the invention and to delegate such use to third parties. Those rights are the rights to the authorized person’s own de facto and de jure actions, in other words, privileges (use rights) and powers (disposal rights).","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87872493","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-66-87
E. Barkaya
The article demonstrates independent nature of implied warranty of conforming goods from performance in a purchase agreement. Inclusion of a duty to transfer conforming goods in the performance obligation leads to disregard of basic principles of sale of goods. Warranty of conformity finds its effect only after a transfer of risk, because combination of price and qualities emerges at this moment, thus forming a particular item. With such an understanding there is no contest between consumer’s remedies for non-conforming goods and unsatisfactory performance. Only an independent obligation to transfer conforming goods preserves the functions of an item, which were defined in a contract by a seller and a customer.
{"title":"THE PLACE OF WARRANTY OF CONFORMING GOODS IN THE PURCHASE AGREEMENT","authors":"E. Barkaya","doi":"10.24031/1992-2043-2022-22-1-66-87","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-66-87","url":null,"abstract":"The article demonstrates independent nature of implied warranty of conforming goods from performance in a purchase agreement. Inclusion of a duty to transfer conforming goods in the performance obligation leads to disregard of basic principles of sale of goods. Warranty of conformity finds its effect only after a transfer of risk, because combination of price and qualities emerges at this moment, thus forming a particular item. With such an understanding there is no contest between consumer’s remedies for non-conforming goods and unsatisfactory performance. Only an independent obligation to transfer conforming goods preserves the functions of an item, which were defined in a contract by a seller and a customer.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"62 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84703515","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 : 2022-05-05DOI: 10.24031/1992-2043-2022-22-1-200-229
Patrice Jourdain
The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.
{"title":"THE PRICIPLES OF CIVIL LIABILITY (finale)","authors":"Patrice Jourdain","doi":"10.24031/1992-2043-2022-22-1-200-229","DOIUrl":"https://doi.org/10.24031/1992-2043-2022-22-1-200-229","url":null,"abstract":"The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"284 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76843418","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 : 2022-03-15DOI: 10.24031/1992-2043-2021-21-6-59-98
D. Shchepin
The present article is devoted to the main provisions and criticism of the theory of factual contractual relations, which arose in Germany in the middle of the 20th century. The author reveals the issues of the emergence of the theory of factual contractual relations and its subsequent perception by the doctrine and judicial practice of Germany and Switzerland, and also correlates this theory with private autonomy and legal certainty. Based on the analysis, it was concluded that there is no need to apply the theory of factual contractual relations in the Russian legal order.
{"title":"THEORY OF FACTUAL CONTRACTUAL RELATIONS: HISTORY OF FORMATION AND CRITICISM","authors":"D. Shchepin","doi":"10.24031/1992-2043-2021-21-6-59-98","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-6-59-98","url":null,"abstract":"The present article is devoted to the main provisions and criticism of the theory of factual contractual relations, which arose in Germany in the middle of the 20th century. The author reveals the issues of the emergence of the theory of factual contractual relations and its subsequent perception by the doctrine and judicial practice of Germany and Switzerland, and also correlates this theory with private autonomy and legal certainty. Based on the analysis, it was concluded that there is no need to apply the theory of factual contractual relations in the Russian legal order.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83403167","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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