К вопросу о политико-правовой обоснованности института реституции в российском гражданском праве
The article raises the problem of restitution in the Russian civil law. The author concludes that restitution is not an optimal instrument to regulate the consequenses of invalid transactions.
ipation of the bankruptcy and being challenged as those having caused harm as a result of rendering preference to one of the creditors. Special attention is given to the analysis of judicial and arbitration practice. Purpose: to analyze the grounds and general procedure for challenging transactions with preference, as well as the criteria allowing court to find the third party being honest or dishonest while making the transaction with the debtor. Methods: analytical, system, comparative legal, technical-legal methods are used. Results: the article emphasizes the need Рассмотрение дел об оспаривании сделок с предпочтением: вопросы теории и практики 77 for more accurate definition of the concept "preferable satisfaction". It is noted that this concept is not specified in the Bankruptcy law of Russia, which leads to its broad interpretation. Declaration of a transaction with preference as invalid requires existence of any of the conditions specified in Art. 61.3 of the Bankruptcy law. As this list is open, preference can take place in other cases, apart from those on the list. Conclusions: when working out regulations on challenging a debtor’s transactions, the legislature used rather complicated legal construction. This was done with the aim of protecting rights and interests of all participants of bankruptcy relations by means of combining objective and subjective grounds for holding transactions invalid in the most efficient manner
This article is the first part of the vindication research. The second part will focus on the analysis of academic positions. In this first part the author proves that the Constitutional Court of the Russian Federation unreasonably found inadmissible some constitutional claims of citizens who challenged the vindication related provisions of the Civil Code of Russia. Actual practice of the court on this issue assessed as contradictory, which has both positive and negative sides. When a positive assessment of the new clarification of the Supreme Court regarding bona fide purchaser criteria, it is criticized for the lack of attention to initiation of correction of new provisions of Art 200.1 of the Civil Code of Russia of limitation period which are erroneours when applied for vindication. An analysis of judicial statistics, in spite of shortcoming of its methodology, confirms: a) high social importance of vindication disputes, b) lack of population trust to the state compensations in cases of disputes related to vindication of property from a bona fide purchaser.
In this article the author considers some problems, inherent to the Russian bankruptcy legislation. He regards the procedure of observation excessive because its aims can be reached by enhancing the value of the initiation of bankruptcy proceedings stage. The low efficiency of the financial recovery and external management procedures, that is emphasized in the article, is explained by the fact that those procedures can be established only after the observation procedure, during which the debtor’s bankruptcy becomes generally known. To the author’s opinion the rehabilitation procedures need to be established directly after initiating of bankruptcy. The debtor’s recovery shall also be possible on the pre-trial stage and during the initiation of proceedings. The author criticizes the provision, according to which the arbitration administrator manages is obliged to be a member of a self-regulatory organization, because such managers become dependent of such organizations. To the author’s opinion, the court should be entitled to appoint as an arbitration manager any person with due competence and business qualities. The existing system of determining the size of an arbitration manager’s remuneration is criticized. To the author’s point of view the size of the remuneration should depend of the extent, to which the creditors’ claims are fulfilled.