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Regular version of the site
Of all publications in the section: 389
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Article
Сергеев А. П., Терещенко Т. А. Закон. 2018. № 11. С. 106-123.

In this article, the problem of Big Data is examined from the standpoint of civil law in the context of the question whether the existing mechanisms are sufficient for the purposes of civil regulation of Big Data or whether a qualitative review of the system of objects of civil objects, including intellectual property, is required. In the frame of civil discussion, it is proposed to consider Big Data in close connection with new knowledge formation, including on the basis of its analysis, for the purposes of using it in one’s own activity or selling it on the market and, as a result, to qualify Big Data as a special service based on Big Data technology. An emphasis on the “service” focuses attention on the “dynamics” of relations and the subject of regulations. Equally, the inclusion in the concept of indications of “information and analytical” nature and “Big Data technology” highlights the relevant specific features. Commenting on the characteristics of various objects of civil rights, the authors note the impossibility of extending the existing legal regimes to Big Data and suggest the expediency of recognising Big Data as a new non-traditional object of intellectual property. The proposed approach, according to the authors, allows to take into account not only the differentiation of objects of intellectual property in the broadest sense, but also their inherent unity, which is manifested in the granting of special — exclusive — rights to intangible objects being the results of the activity in question.

Added: Feb 13, 2019
Article
Ерохова М. А. Закон. 2019. № 8. С. 153-161.

In this article author analyses the question, who has to prove good faith acquisition of someone else’s property when a vindication claim is submitted. Does the good faith acquisition has to the objection of the defendant or does proving to the contrary constitute an element of proof for the property rights of the plaintiff? The article is based on the analysis of judicial and legislative changes of the Russian law. The author maintains that Article 223(2) of the Russian Civil Code makes a bona fide purchaser for value the new owner — by virtue of the law — of a thing which has been alienated from the owner at his own will, so the plaintiff seeking vindication has to prove the right of ownership; therefore, it is the plaintiff who must prove the absence of the good faith acquisition.. The author explains how to obtain evidence of gratuitous acquisition and/or bad faith on the part of the defendant, and admits that in disputes over the rights to real estate one can refer to a registration case as a source of evidence, while titles to movable property are registered in no single source so proving the plaintiff’s right to it is extremely difficult.

Added: Aug 30, 2019
Article
Цепов Г. В. Закон. 2017. № 6. С. 86-100.

The paper examines Russian court practice in terms of sham com- panies, straw persons and shadow directors. The author comes to a conclusion that Russian courts, especially criminal ones, active- ly lift the corporate veil, imposing liability upon the shadow direc- tors. This approach has a solid economic foundation. The value of civil property regulatory relations lies in the fact that they organise property turnover, enabling it to be efficiently distributed, and nar- row the uncertainty of the future. Faking and sham relations do not perform these functions. On the contrary, since information is a limited resource, not providing the true information about a le- gal entity's activities and its bodies increases transaction costs. On the basis of the research results, the author concludes that target criterion should be decisive to recognise a company as sham, and will criterion should be decisive to recognise a person as dummy or shadow director. It is also necessary to clarify and systematise the used terms based on supremacy of civil law.

Added: Nov 2, 2018
Article
Цепов Г. В. Закон. 2018. № 4. С. 162-173.

Based on contractual theory of corporation the author sees relations between a board member and a company as management service agreement, and remuneration is seen as consideration. The complexity of economic system makes it difficult to figure out “golden formula” to determine remuneration of board members which depends on the results of their activities. Consequently, it is advisable to determine the level of remuneration of board members taking into account the value of time spent by them. Since decision to pay the remuneration is the term of the contract between a company and a board member, to invalidate it para.2 art. 174 of the Civil Code of the Russian Federation should be applied using the presumption of obvious damage. Obvious damage, in the absence of proof to the contrary, is the excess of the remuneration level by twice or more of the value of similar services.  

Added: Sep 19, 2018
Article
Позднякова А. Э., Котова Д. А., Семенова Е. В. Закон. 2020. С. 74-85.
Added: Mar 12, 2020
Article
Давыденко Д. Л., Леваева Л. А. Закон. 2018. № 11. С. 155-161.

In 1930, the Maritime Arbitration Commission (MAC) was established at the All-Union Chamber of Commerce. Today the MAC continues its activities, now as an arbitration institution at the Chamber of Commerce and Industry of the Russian Federation, and is one of the world's recognized centers of maritime arbitration. As a rule, the MAC awards are fulfilled by the parties voluntarily. However, in some cases, a party to the arbitration recurs to the court with a request to set aside the award of the MAC or to enforce it. This paper discusses the main arguments to which the parties refer during the consideration of such cases in Russian state commercial courts. The paper also analyses the positions taken by the Russian state commercial courts of the first, cessation, and often supervisory instances when considering applications for challenging the awards of the MAC.

Added: Oct 30, 2020
Article
Петрищев В. С. Закон. 2011. № 4. С. 136-140.
Added: Oct 24, 2011
Article
Цепов Г. В. Закон. 2015. № 4. С. 83-97.

The article is devoted to theoretical and practical issues of veil piercing and enterprise liability. The author concludes that limited liability principle is to be respected and controlling shareholders are to be subsidiary liable for the company’s debts only in case of their fault. To support this thesis the author refers to the principle of value maximisation of production and considers company as a tool for decreasing uncertainty of the future.

Added: Nov 2, 2018
Article
Копылов Д. Г. Закон. 2017. № 8. С. 75-95.

The paper deals with the right of shareholders to require the company to purchase their shares. First, it considers arguments for and against share repurchase, also depending on whether the company is public or private.  It further discusses how the repurchase right arises and how this right can be exercised. Finally, it analyses a range of issues such as types (or classes), amounts and prices of share repurchases.

Added: Mar 16, 2019
Article
Ильин А. В. Закон. 2019. № 9. С. 39-52.

Training new lawyers with stronger knowledge and skills is a crucial part of the development of Russian law.  Professional legal education has to consider current needs and changes in the intellectual profile of prospective students, responding quickly by revising their curricula. It is time to improve instructional methods and examination formats by moving from memorising current statutory provisions and oral exams to problem analysis and written exams. Therefore, law schools and universities should have freedom of choice as to what to teach in order to ensure transition from competition among university names and traditions to competition among degree programmes.

Added: Oct 7, 2019
Article
Мохова Е. В. Закон. 2017. № 5. С. 124-137.

The paper analyses the development of such phenomena as globalization of cross-border insolvency cases in Russia in their increasing complexity and multi-jurisdictional nature. A retrospective of westbound bankruptcies is presented by the cases of recognition of Russian proceedings in Western Europe and USA, where near-insolvent debtors frequently siphon off their assets and migrate themselves. The prospects for bankruptcies globalization in the Eurasian direction (into the EAEU states) are assessed in terms of three factors, including classical freedoms of integration, freedom of judgments’ movement, and access of foreign persons to domestic bankruptcies. For finding solutions, the author notes the importance of examining the extensive experience worldwide and cross-border insolvency regulation models throughout  Europe, Latin America, Africa, and Asia.

Added: Apr 20, 2018
Article
Медушевский А. Н. Закон. 2020. № 1. С. 98-108.

Global constitutionalism is the influential theoretical construction consolidating the whole scope of interactive processes on the border of international and national law in formation of a new global transnational or supra-national legal and political reality. Hypothetically, the relative diminution of the role of national constitutionalism against its international counterpart paved the way for the growing role of international jurisprudence in constitutional matters. That development produces a new type of conflicts between international and national courts in the understanding of constitutionalism, its nature, and its role in a new cosmopolitan reality. The new conflict has its obvious representation in the new phenomenon of precedents of global or transnational law as opposed to precedents more traditional in nature. The author analyses the processes of integration and fragmentation in international constitutional law showing how the balance shifts between hard and soft law, traditional and new concepts of legal precedent and judicial activism regarding proportionality theory, the structure of the sources of law, transformative or transitional jurisprudence, and the growing polarisation of the multi-layered constitutional jurisprudence.

Added: Dec 25, 2020
Article
Медушевский А. Н. Закон. 2020. № 1. С. 98-108.

Global constitutionalism is the influential theoretical construction consolidating the whole scope of interactive processes on the border of international and national law in formation of a new global transnational or supra-national legal and political reality. Hypothetically, the relative diminution of the role of national constitutionalism against its international counterpart paved the way for the growing role of international jurisprudence in constitutional matters. That development produces a new type of conflicts between international and national courts in the understanding of constitutionalism, its nature, and its role in a new cosmopolitan reality. The new conflict has its obvious representation in the new phenomenon of precedents of global or transnational law as opposed to precedents more traditional in nature. The author analyses the processes of integration and fragmentation in international constitutional law showing how the balance shifts between hard and soft law, traditional and new concepts of legal precedent and judicial activism regarding proportionality theory, the structure of the sources of law, transformative or transitional jurisprudence, and the growing polarisation of the multi-layered constitutional jurisprudence.

Added: Jun 14, 2020
Article
Тотьев К. Ю. Закон. 1995. № 4. С. 60-63.
Added: Oct 29, 2010
Article
Тай Ю. В. Закон. 2020. № 11. С. 42-44.

The Plenum of the Supreme Court of the Russian Federation issued a resolution on the problematic issues of consideration of civil claims in criminal cases. What impact will it have on the practice? What problems of applying civil lawsuits in a criminal case remain unresolved?

Added: Jan 22, 2021