Pub Date : 2021-12-20DOI: 10.24031/1992-2043-2021-21-5-86-132
M. Lukhmanov
The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.
{"title":"ESTABLISHMENT OF THE FACTUAL CAUSATION IN TORT","authors":"M. Lukhmanov","doi":"10.24031/1992-2043-2021-21-5-86-132","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-5-86-132","url":null,"abstract":"The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"13 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73047494","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 : 2021-12-20DOI: 10.24031/1992-2043-2021-21-5-7-85
D. Zaikin
This paper examines the civil law status of the beneficiaries of a foundation (Stiftung) subject to private benefit purposes. It concerns the reasons and impact of conservative and instrumental approaches to the permissible purposes of the foundation, the classification criterion of private benefit foundations (privatnützige Stiftungen) and public benefit foundations (gemeinnützige Stiftungen), the limits to which the Germanic countries tolerate with establishment of the private benefit foundations and then defines the civil law status of the beneficiaries from the perspective of their claims to the foundation and participation in the foundation management, control and protection. As a result of the research the ways to mitigate the risks, that private foundations can create for the participants in civil law relations, are proposed in the light of the legal nature of the foundation.
{"title":"CIVIL LAW STATUS OF BENEFICIARIES OF A PRIVATE BENEFIT FOUNDATION","authors":"D. Zaikin","doi":"10.24031/1992-2043-2021-21-5-7-85","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-5-7-85","url":null,"abstract":"This paper examines the civil law status of the beneficiaries of a foundation (Stiftung) subject to private benefit purposes. It concerns the reasons and impact of conservative and instrumental approaches to the permissible purposes of the foundation, the classification criterion of private benefit foundations (privatnützige Stiftungen) and public benefit foundations (gemeinnützige Stiftungen), the limits to which the Germanic countries tolerate with establishment of the private benefit foundations and then defines the civil law status of the beneficiaries from the perspective of their claims to the foundation and participation in the foundation management, control and protection. As a result of the research the ways to mitigate the risks, that private foundations can create for the participants in civil law relations, are proposed in the light of the legal nature of the foundation.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"30 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78322015","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 : 2021-10-25DOI: 10.24031/1992-2043-2021-21-4-104-129
A. Savelyev
The paper focuses on the place of personal data in the system of objects of civil law rights and it is concluded that personal data can be an object of civil law obligations and serve as counter-performance. The paper also considers the question of interrelation between the personal data legislation and contract law, including the impact of violation of personal data regulations on the validity of contracts, where relevant personal data datasets are one of the objects.
{"title":"CIVIL LAW ASPECTS OF COMMERCIALIZATION OF PERSONAL DATA","authors":"A. Savelyev","doi":"10.24031/1992-2043-2021-21-4-104-129","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-4-104-129","url":null,"abstract":"The paper focuses on the place of personal data in the system of objects of civil law rights and it is concluded that personal data can be an object of civil law obligations and serve as counter-performance. The paper also considers the question of interrelation between the personal data legislation and contract law, including the impact of violation of personal data regulations on the validity of contracts, where relevant personal data datasets are one of the objects.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90813050","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 : 2021-10-25DOI: 10.24031/1992-2043-2021-21-4-212-241
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 (beginning)","authors":"Patrice Jourdain","doi":"10.24031/1992-2043-2021-21-4-212-241","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-4-212-241","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":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79582803","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 : 2021-10-25DOI: 10.24031/1992-2043-2021-21-4-242-266
O. Zaitsev
The article discusses the recent dissertation on the preemption right to shares purchase. Useful correct conclusions of the dissertation are described in detail and its controversial theses are criticized.
{"title":"REVIEW ON THE THESIS FOR THE APPLICATION OF THE SCIENTIFIC DEGREE OF CANDIDATE OF LEGAL SCIENCES “RIGHT OF PRE-EMPTION IN RESPECT OF PARTICIPATORY INTEREST (SHARES)” BY IVAN SERGEEVICH CHUPRUNOV","authors":"O. Zaitsev","doi":"10.24031/1992-2043-2021-21-4-242-266","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-4-242-266","url":null,"abstract":"The article discusses the recent dissertation on the preemption right to shares purchase. Useful correct conclusions of the dissertation are described in detail and its controversial theses are criticized.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"31 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90223976","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 : 2021-10-25DOI: 10.24031/1992-2043-2021-21-4-130-176
I. I. Zikun
The article provides a commentary to Article 706 of the Civil Code “General Contractor and Subcontractor”. The author uses the doctrine of back-to-back contracts to examine the peculiarities of the structure of contractual relations in the area of a subcontract, as well as the peculiarities of risk distribution when parties to a contractor relationship refuse from back-to-back clause. The author also investigates the peculiarities of direct claiming from an employer to a subcontractor under the doctrine of culpa in eligendo. The author concludes that if a non-contractual relationship arises, the client has the right to bring a direct claim against the subcontractor.
{"title":"SUBCONTRACT: COMMENTARY TO ARTICLE 706 OF THE CIVIL CODE","authors":"I. I. Zikun","doi":"10.24031/1992-2043-2021-21-4-130-176","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-4-130-176","url":null,"abstract":"The article provides a commentary to Article 706 of the Civil Code “General Contractor and Subcontractor”. The author uses the doctrine of back-to-back contracts to examine the peculiarities of the structure of contractual relations in the area of a subcontract, as well as the peculiarities of risk distribution when parties to a contractor relationship refuse from back-to-back clause. The author also investigates the peculiarities of direct claiming from an employer to a subcontractor under the doctrine of culpa in eligendo. The author concludes that if a non-contractual relationship arises, the client has the right to bring a direct claim against the subcontractor.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90331038","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 : 2021-10-25DOI: 10.24031/1992-2043-2021-21-4-267-310
I. S. Chuprunov
The paper is a response to the review by O.R. Zaytsev in respect of the author’s PhD thesis “Right of Pre-Emption in Respect of Participatory Interest (Shares)”. The paper presents the author’s objections to the criticism of the reviewer and once again sets out the author’s views on the construct of the right of pre-emption in respect of participatory interest (shares) with certain clarifications and some additional arguments (compared to the PhD thesis and previous publications).
{"title":"ONE MORE TIME ON THE RIGHT OF PRE-EMPTION IN RESPECT OF PARTICIPATORY INTEREST (SHARES). RESPONSE TO O.R. ZAITSEV’S REVIEW","authors":"I. S. Chuprunov","doi":"10.24031/1992-2043-2021-21-4-267-310","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-4-267-310","url":null,"abstract":"The paper is a response to the review by O.R. Zaytsev in respect of the author’s PhD thesis “Right of Pre-Emption in Respect of Participatory Interest (Shares)”. The paper presents the author’s objections to the criticism of the reviewer and once again sets out the author’s views on the construct of the right of pre-emption in respect of participatory interest (shares) with certain clarifications and some additional arguments (compared to the PhD thesis and previous publications).","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74665975","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 : 2021-10-25DOI: 10.24031/1992-2043-2021-21-4-58-103
A. Egorov
At first sight, the aforementioned norm of the Bankruptcy Law hides a paradox: the Bank of Russia or another public entity provides a credit institution with financing on a gratuitous basis and therefore incurs losses (lost interest income), and the credit institution is vested with the right to recover these losses, i.e. a person who a priori did not experience such losses. This is contrary to any views on damages that exist in civil law theory. Therefore, in order to preserve at least some legal meaning behind the specified norm, it is necessary to understand what kind of economic regulation model its developers meant. Moreover, the judicial practice of applying this norm and recovering such “paradoxical” losses from controlling persons is beginning to take shape. That is, it cannot be said that the norm turned out to be stillborn and is blocked by the law enforcement officer. The best option is to believe that the Bank of Russia has a direct claim to the guilty persons to compensate for their lost profits, and the credit institution that has received financing from it is empowered to collect in its favor or the obligation to transfer it to it. The second important point of the norm under consideration is an attempt to shift the expenses of the Bank of Russia to the controlling persons for depositing funds into the bank’s capital. This happens in a veiled form – through interest on the amount recovered for 20 years in advance, which at the current refinancing rate means approximately 100% of the invested amount. However, it should be borne in mind that by investing such an amount, the Bank of Russia takes the bank’s business for itself, and then, transferring this business to other persons, it receives the proceeds. The owners of the bank do not receive any adequate compensation, but must reimburse the Bank of Russia up to 100% of their invested funds. This observation raises fundamental doubts about the constitutionality of this provision of the Bankruptcy Law.
{"title":"UNTYPICAL LOSSES UNDER PARAGRAPH 2 OF CLAUSE 5 OF ARTICLE 189.23 OF THE BANKRUPTCY LAW: A PARADOX OR HIDDEN MEANING?","authors":"A. Egorov","doi":"10.24031/1992-2043-2021-21-4-58-103","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-4-58-103","url":null,"abstract":"At first sight, the aforementioned norm of the Bankruptcy Law hides a paradox: the Bank of Russia or another public entity provides a credit institution with financing on a gratuitous basis and therefore incurs losses (lost interest income), and the credit institution is vested with the right to recover these losses, i.e. a person who a priori did not experience such losses. This is contrary to any views on damages that exist in civil law theory. Therefore, in order to preserve at least some legal meaning behind the specified norm, it is necessary to understand what kind of economic regulation model its developers meant. Moreover, the judicial practice of applying this norm and recovering such “paradoxical” losses from controlling persons is beginning to take shape. That is, it cannot be said that the norm turned out to be stillborn and is blocked by the law enforcement officer. The best option is to believe that the Bank of Russia has a direct claim to the guilty persons to compensate for their lost profits, and the credit institution that has received financing from it is empowered to collect in its favor or the obligation to transfer it to it. The second important point of the norm under consideration is an attempt to shift the expenses of the Bank of Russia to the controlling persons for depositing funds into the bank’s capital. This happens in a veiled form – through interest on the amount recovered for 20 years in advance, which at the current refinancing rate means approximately 100% of the invested amount. However, it should be borne in mind that by investing such an amount, the Bank of Russia takes the bank’s business for itself, and then, transferring this business to other persons, it receives the proceeds. The owners of the bank do not receive any adequate compensation, but must reimburse the Bank of Russia up to 100% of their invested funds. This observation raises fundamental doubts about the constitutionality of this provision of the Bankruptcy Law.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"31 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91241131","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 : 2021-10-25DOI: 10.24031/1992-2043-2021-21-4-9-57
This review contains the main content of the reports of the participants of the 10th International Scientific-Practical Conference “Civil Law of Russia. Results of the Year”. Reports are devoted to topical issues of Russian and foreign law such as property law reform, correlation between the Civil Code and special acts, digitalization of turnover, cryptoassets, problems of certain types of contracts, problems of company law, intellectual property law and family law.
{"title":"ANNUAL SCIENTIFIC CONFERENCE OF THE PRIVATE LAW CENTER","authors":"","doi":"10.24031/1992-2043-2021-21-4-9-57","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-4-9-57","url":null,"abstract":"This review contains the main content of the reports of the participants of the 10th International Scientific-Practical Conference “Civil Law of Russia. Results of the Year”. Reports are devoted to topical issues of Russian and foreign law such as property law reform, correlation between the Civil Code and special acts, digitalization of turnover, cryptoassets, problems of certain types of contracts, problems of company law, intellectual property law and family law.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83181546","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 : 2021-07-12DOI: 10.24031/1992-2043-2021-21-2-9-87
R. Bevzenko
The paper deals with the concept of title-based security. The author examines the substance of the concept and its historical roots. The problems of repurchase agreements, retention of title, assignment with the security purposes and financial leasing are analyzed. The author is paying special attention to the bankruptcy issues, e.g. the insolvency of the provider of the security and the security creditor.
{"title":"THE ESSAY ON A DOCTRINE OF TITLE-BASED SECURITY DEVICE","authors":"R. Bevzenko","doi":"10.24031/1992-2043-2021-21-2-9-87","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-9-87","url":null,"abstract":"The paper deals with the concept of title-based security. The author examines the substance of the concept and its historical roots. The problems of repurchase agreements, retention of title, assignment with the security purposes and financial leasing are analyzed. The author is paying special attention to the bankruptcy issues, e.g. the insolvency of the provider of the security and the security creditor.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"31 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74441675","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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