Pub Date : 2021-07-12DOI: 10.24031/1992-2043-2021-21-2-88-133
A. S. Vorozhevich
In the article, the author examines time, content and object boundaries of exclusive rights to computer programs. It has been substantiated that the meaningful boundaries of exclusive rights should be established through a closed list of cases of free use. At the same time, the balance sheet doctrine of fair use, supplemented by the concepts of “transformative use”, cannot serve as a tool for establishing such boundaries. At the same time, in order to resolve atypical conflicts of interest arising in relation to a specific object of copyright between a person interested in access to such an object and the rightholder, standards for assessing the behavior of the rightholder should be developed – special (in relation to Article 10 of the Civil Code of the Russian Federation) limits for the implementation of exclusive right. With regard to the object boundaries of rights to computer programs, it was concluded that they are established by means of the “traditional” concept of copyright “protected form – unprotected content” and the doctrine of “essential part”. The principle of exhaustion of rights should not apply to such objects.
{"title":"THE LIMITS OF EXCLUSIVE RIGHTS TO COMPUTER PROGRAMS","authors":"A. S. Vorozhevich","doi":"10.24031/1992-2043-2021-21-2-88-133","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-88-133","url":null,"abstract":"In the article, the author examines time, content and object boundaries of exclusive rights to computer programs. It has been substantiated that the meaningful boundaries of exclusive rights should be established through a closed list of cases of free use. At the same time, the balance sheet doctrine of fair use, supplemented by the concepts of “transformative use”, cannot serve as a tool for establishing such boundaries. At the same time, in order to resolve atypical conflicts of interest arising in relation to a specific object of copyright between a person interested in access to such an object and the rightholder, standards for assessing the behavior of the rightholder should be developed – special (in relation to Article 10 of the Civil Code of the Russian Federation) limits for the implementation of exclusive right. With regard to the object boundaries of rights to computer programs, it was concluded that they are established by means of the “traditional” concept of copyright “protected form – unprotected content” and the doctrine of “essential part”. The principle of exhaustion of rights should not apply to such objects.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84236996","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: 10.24031/1992-2043-2021-21-2-217-244
H. Koziol
The article of one of the most prominent contemporary representatives of “bewegliches System” conception of private law regulation provides a thorough examination of factors influencing the leading approachs to assessment of fault in german speaking jurisdictions. The author comes to conclusion that unconditional adherence to unified (either subjective or objective) approach shall not attend to the ends pursued by particular intitutions aggregated under the name of civil liability, whereas the ethically underpinned concept of liability requires subjective approach as a general rule for noncontractual liability.
{"title":"IS THE NECESSITY ASSESSMENT AT THE INSTITUTE OF HARMFUL RECOVERY?","authors":"H. Koziol","doi":"10.24031/1992-2043-2021-21-2-217-244","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-217-244","url":null,"abstract":"The article of one of the most prominent contemporary representatives of “bewegliches System” conception of private law regulation provides a thorough examination of factors influencing the leading approachs to assessment of fault in german speaking jurisdictions. The author comes to conclusion that unconditional adherence to unified (either subjective or objective) approach shall not attend to the ends pursued by particular intitutions aggregated under the name of civil liability, whereas the ethically underpinned concept of liability requires subjective approach as a general rule for noncontractual liability.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"23 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90781508","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: 10.24031/1992-2043-2021-21-2-245-268
M. Schermaier
This publication is a Russian edition of M.J. Schermaier’s article, devoted to the circumvention of the right of pre-emption with the contract similar to sale.
本出版物是M.J. Schermaier文章的俄文版本，致力于用类似销售的合同规避优先购买权。
{"title":"THE CIRCUMVENTION OF THE RIGHT OF PRE-EMPTION WITH THE CONTRACT SIMILAR TO SALE","authors":"M. Schermaier","doi":"10.24031/1992-2043-2021-21-2-245-268","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-245-268","url":null,"abstract":"This publication is a Russian edition of M.J. Schermaier’s article, devoted to the circumvention of the right of pre-emption with the contract similar to sale.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"198 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75900621","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: 10.24031/1992-2043-2021-21-2-149-174
E. Ivanova
The article discusses the reasonableness of introducing into Russian law a new limited real property right to the land plot – the building right, proposed for adoption in the bill on the property law reform. Based on the analysis of the recent case law related to the lease for construction purposes, the author compares this institution with the new building right, examines the shortcomings of the lease and assesses how the building right, as it is drafted in the bill, may contribute to their elimination. The author also assesses the prospects for the property law reform and provides suggestions for possible revision of the regulation of the building right provided for in the bill.
{"title":"PROBLEMS OF THE LEASE FOR CONSTRUCTION PURPOSES IN CASE LAW AND THE BILL ON INTRODUCING THE BUILDING RIGHT INTO RUSSIAN LAW","authors":"E. Ivanova","doi":"10.24031/1992-2043-2021-21-2-149-174","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-149-174","url":null,"abstract":"The article discusses the reasonableness of introducing into Russian law a new limited real property right to the land plot – the building right, proposed for adoption in the bill on the property law reform. Based on the analysis of the recent case law related to the lease for construction purposes, the author compares this institution with the new building right, examines the shortcomings of the lease and assesses how the building right, as it is drafted in the bill, may contribute to their elimination. The author also assesses the prospects for the property law reform and provides suggestions for possible revision of the regulation of the building right provided for in the bill.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"36 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72422834","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: 10.24031/1992-2043-2021-21-2-134-148
K. A. Usacheva
The article focuses on the significant heterogeneity of the measures taken for the harmonization and unification of the contract law. Today, this heterogeneity is often being forgotten when the measures are presented as an integral whole. While each of the work directions has deep historical roots, which often predetermine the inability to develop a unified approach to these processes.
{"title":"ON THE CURRENT TRENDS IN THE HARMONIZATION AND UNIFICATION OF THE CONTRACT LAW","authors":"K. A. Usacheva","doi":"10.24031/1992-2043-2021-21-2-134-148","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-134-148","url":null,"abstract":"The article focuses on the significant heterogeneity of the measures taken for the harmonization and unification of the contract law. Today, this heterogeneity is often being forgotten when the measures are presented as an integral whole. While each of the work directions has deep historical roots, which often predetermine the inability to develop a unified approach to these processes.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73224258","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: 10.24031/1992-2043-2021-21-2-199-216
Yu.V. Baygusheva
The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.
{"title":"THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY: THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA","authors":"Yu.V. Baygusheva","doi":"10.24031/1992-2043-2021-21-2-199-216","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-199-216","url":null,"abstract":"The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"88 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75640555","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: 10.24031/1992-2043-2021-21-2-269-285
M. Pshenichnikov
The book review provides a brief overview of the collection of works “Juristische Kommentare: Ein internationaler Vergleich”, which contains the comparative view on the history, significance and role of the legal commentary and a few other genres of legal literature in different legal orders.
这篇书评简要概述了《法理学评论:国际化的视角》(Juristische commentmentare: Ein internationaler Vergleich)文集，其中包含了对不同法律秩序下法律评论和其他几种法律文学类型的历史、意义和作用的比较观点。
{"title":"CULTURES OF COMMENT: DIFFERENCES AND SIMILARITIES (review of the collection of works “Juristische Kommentare: Ein internationaler Vergleich” (ed. by D. Kästle-Lamparter, N. Jansen, R. Zimmermann. Tübingen: Mohr Siebeck, 2020. XII, 520 p.))","authors":"M. Pshenichnikov","doi":"10.24031/1992-2043-2021-21-2-269-285","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-2-269-285","url":null,"abstract":"The book review provides a brief overview of the collection of works “Juristische Kommentare: Ein internationaler Vergleich”, which contains the comparative view on the history, significance and role of the legal commentary and a few other genres of legal literature in different legal orders.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"16 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79162013","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 : 2021-02-04DOI: 10.18572/2070-2140-2021-1-11-14
A. B. Stepin
Civil rights protection is an independent sphere of legal activity where subjective civil rights and powers of state and local self-government bodies and their officials are implemented. Ensuring compliance (coherence, balance) of the implementation of civil rights and individual public powers with the norms(s) of the law is achieved by means of limits (rules) judicial and non-judicial protection. The limits of protection are a system concept that combines the (internal) limits (rules) of the exercise of subjective civil rights (art. 10 of the civil code of the Russian Federation) and (external) limits (rules)of the authority granted (in the proper administrative procedure). They are considered together and characterize the officially established order of protection. When resolving complex issues of law enforcement related to the type of legal proceedings, the choice of the form and appropriate method of protection, etc., the limits allow you to avoid and (or) minimize the possible risks of adverse consequences in the implementation of the right to protection. At the stages of applying, securing and restoring the violated (disputed) right, the limits determine the sequence of implementation of the methods (means) of protection, the model of behavior, the scope of actions (inaction) of the counterparty, etc.
{"title":"Civil Right Protection Limits: Issues of the Theory and Practice","authors":"A. B. Stepin","doi":"10.18572/2070-2140-2021-1-11-14","DOIUrl":"https://doi.org/10.18572/2070-2140-2021-1-11-14","url":null,"abstract":"Civil rights protection is an independent sphere of legal activity where subjective civil rights and powers of state and local self-government bodies and their officials are implemented. Ensuring compliance (coherence, balance) of the implementation of civil rights and individual public powers with the norms(s) of the law is achieved by means of limits (rules) judicial and non-judicial protection. The limits of protection are a system concept that combines the (internal) limits (rules) of the exercise of subjective civil rights (art. 10 of the civil code of the Russian Federation) and (external) limits (rules)of the authority granted (in the proper administrative procedure). They are considered together and characterize the officially established order of protection. When resolving complex issues of law enforcement related to the type of legal proceedings, the choice of the form and appropriate method of protection, etc., the limits allow you to avoid and (or) minimize the possible risks of adverse consequences in the implementation of the right to protection. At the stages of applying, securing and restoring the violated (disputed) right, the limits determine the sequence of implementation of the methods (means) of protection, the model of behavior, the scope of actions (inaction) of the counterparty, etc.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"506 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86838159","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 : 2021-02-04DOI: 10.18572/2070-2140-2021-1-7-10
K. Kirsanov, O. Barmina
Intellectual property is currently one of the key areas of modern civil law relations. In the present article, the authors reviewed and summarized the main current areas of judicial practice in the field of violations related to the exclusive rights to a company name, characters and trademarks.
{"title":"Relevant Issues of the Judicial Practice in Intellectual Property Protection","authors":"K. Kirsanov, O. Barmina","doi":"10.18572/2070-2140-2021-1-7-10","DOIUrl":"https://doi.org/10.18572/2070-2140-2021-1-7-10","url":null,"abstract":"Intellectual property is currently one of the key areas of modern civil law relations. In the present article, the authors reviewed and summarized the main current areas of judicial practice in the field of violations related to the exclusive rights to a company name, characters and trademarks.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"96 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75850300","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 : 2021-02-04DOI: 10.18572/2070-2140-2021-1-27-31
A. A. Kuznetsov
The main task of company law is to find an adequate balance between protecting the interests of the creditor and those of the companies being reorganised. In this article, based on foreign doctrine, we propose ways to improve Russian legislation to prevent creditors from abusing their rights.
{"title":"The Content of Special Creditors’ Rights in Case of Reorganization","authors":"A. A. Kuznetsov","doi":"10.18572/2070-2140-2021-1-27-31","DOIUrl":"https://doi.org/10.18572/2070-2140-2021-1-27-31","url":null,"abstract":"The main task of company law is to find an adequate balance between protecting the interests of the creditor and those of the companies being reorganised. In this article, based on foreign doctrine, we propose ways to improve Russian legislation to prevent creditors from abusing their rights.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85018791","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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