Требование добросовестности «при исполнении обязанностей» и при заверениях об обстоятельствах: мнимость и необходимость
The author of the below article has argued in more than few of his previous works that the requirement of act in bona fide, forged in the Art. 1 (3) of the Russian Civil Code as a legal obligation and, in the Art. 1 (4), as a universal census for a personal right, brought about a major chaos in the administration of law by courts due to the failure of this enactment to match the nature of the category in question. It barely comes as surprise that the distortion of such a fundamental private law notion caused dilution to the patterns which govern execution of civil law rights. The legal obligation to act in good faith while fulfilling obligations was no exception. As the author demonstrates the fallibility of this approach, he also places requirement of bona fide with regard to legal obligation and warranty in the context of his understanding of both abuse of law and bona fide principles. In the author’s view, the move to avoid consequences of fictitious warranties, rather than met by means of statute law, should be seen as such a conflict of intentions that constitutes failure to act in bona fide -- at least from the author’s perspective.
A new work by Vladimir Volfson is entirely dedicated to bad faith in the exercise of subjective rights. While the civil law doctrine in this domain of legal knowledge is becoming increasingly sophisticated in line with a correspondent move of legal relations towards growing complexity, the subject retains much of its scholarly appeal largely due to an extreme diversity of academic approaches as well as to uncertainty in the current jurisprudence. The author of this monograph differentiates abuse of law from bad faith behaviour. The latter is, in his view, the conflict in the intentions about the claim ground. The lack of good faith, subsequently, is such a flaw in the claimant's interest that, if established, should launch a test whether the action in question constitutes an abuse of law. However, this indicator of the condition of the claimant's interest is not in per se equivalent to the condition itself; therefore, the court should not equate bad faith to abuse of law. The work goes on to unfold the above viewpoint, suggesting some arguments in its favour. Set against this notion of bad faith are the cases of what is described as legally neutral bad faith and even one that is legally allowed. The author also explores the standards of bona fide (as a prerequisite of the legal claim) applied by the lawmaker in special provisions of the civil legislation. Following his understanding of the good faith category, the author criticizes the current position of the principle of good faith in the Russian Civil Code as a legal obligation and a general prerequisite of a claim. In the framework of the view set forth in the work, this principle can be nothing but a legal presumption. Legislation and case law are given as of November 2018.
The article addresses the general principle of good faith established in the Civic Code of the Russian Federation and effective starting from 1 March 2013.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/