Procedure for Exercising of Creditors’ Rights under Reorganization

2016 ◽  
Vol 4 (5) ◽  
pp. 0-0
Author(s):  
Андрей Габов ◽  
Andrey Gabov
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Original Text ◽  
Legal Entity ◽  
Optimal Balance ◽  
Balance Of Interests ◽  
The Russian Federation ◽  
Early Performance ◽  
The Right ◽  
Special Rights

Reorganization of a legal entity entails significant risks for different stakeholders. These risks lie in the fact that as a result of reorganization of a legal entity, the structure of its assets and liabilities may cease to exist, or can significantly change. First of all, these risks affect creditors’ interests. Because of such risks the law provides special rights to creditors during reorganization of a legal entity – the debtor in respect of the obligation. Article 60 of the Civil Code of the Russian Federation grants creditors the right to demand early performance of obligations, should a legal entity – the debtor adopt the decision on its reorganization, and if early performance is not possible, to require the termination of obligations and compensation for losses. The article analyzes the procedure for exercising of creditors’ special rights during reorganization of a legal entity. The author analyzes the original text of the Civil Code and subsequent amendments. Relevance of the article is determined by the changes in the procedure for exercising of the rights of reorganized legal persons’ creditors, which were introduced to article 60 of the Civil Code in 2014. The author concludes that the legislator has failed to find a proper (optimal) balance of interests in the current regulation of the relations between creditors and reorganized legal entities — debtors.

INHERITANCE OF THE PROPERTY OF A MEMBER OF A PEASANT (FARMER) FARM

2021 ◽  
Author(s):  
Татьяна Алексеевна Безгодкова ◽  
Людмила Дмитриевна Туршук
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Civil Code ◽  
Peasant Farmer ◽  
Legal Entity ◽  
The Russian Federation

В статье рассматриваются проблемы правового регулирования наследования имущества члена крестьянского (фермерского) хозяйства. КФХ может существовать в двух формах: как юридическое лицо и без образования юридического лица. ГК РФ определяет порядок перехода по наследству имущества лишь КФХ без образования юридического лица. The article deals with the problems of legal regulation of inheritance of property of a member of a peasant (farmer) farm. PFF can exist in two forms: as a legal entity and without the formation of a legal entity. The Civil Code of the Russian Federation defines the procedure for the inheritance of property only in a farm without the formation of a legal entity.

scholarly journals Recovery of Damages from the Head of an Economic Entity: Legislation of the Russian Federation and Law Enforcement Practice

2019 ◽  
Vol 62 ◽  
pp. 10003
Author(s):  
Y.A. Dorofeeva ◽  
M.N. Zubkova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Good Faith ◽  
Legal Entity ◽  
Historical Method ◽  
Economic Entity ◽  
Legal Method ◽  
The Russian Federation ◽  
The Right ◽  
Legal Entities

A legal entity as a union recognized in law and absent as an independent entity outside the law, exists and carries out its activities through the governing bodies whose composition and competence are always predetermined by the norms of positive law. Undoubtedly, the rights of the governing bodies of a legal entity, as well as the duties of the head of the organization, must be strictly predetermined and have limits defined by law. Failure of this rule would mean the possibility of abuse of the right by the governing bodies of legal entities, their release from the obligation to lead the organization in good faith and reasonably, evasion from the fulfillment of obligations assumed by the legal entity through the sole executive body or another governing body of the organization. In order to prevent harm to the organization and third parties, the governing bodies of the legal entity, the legislator set certain rules for the activities of the governing bodies of the legal entity, as well as the grounds for applying measures of responsibility for violating such rules. The responsibility of the head includes the recovery of damages caused by his fault to a legal entity. The purpose of the study is to analyze the grounds and conditions for recovery of damages caused by the head of the organization in the legislation of the Russian Federation and arbitration practice. The objectives of the study are to determine the grounds for liability of the head of a legal entity in the form of damages, show the genesis of the formation of Russian legislation and the practice of its use by courts on recovering losses of a legal entity from the head of an organization, identify criteria for determining the presence of both good faith and reasonableness in the behavior of managers of legal entities, brought to responsibility in the form of the obligation to pay damages to the organization they lead. In carrying out the study, such methods were used as: general scientific - analysis, synthesis, comparison, generalization, historical method; private-scientific: formal-legal, comparative-legal, allowing to consider the issues of bringing to responsibility in the form of recovery of damages of the head of a legal entity; Formal legal method for determining the content of abstract categories - reasonableness, good faith, permissible behavior, method of system-structural analysis - to study the possibility of applying damages as a form of responsibility for the guilty behavior of a special entity - the head of a legal entity The result of the study is the establishment of the grounds and conditions for applying to the head (former head) of a legal entity responsibility in the form of recovery of damages caused to the organization managed by it, in the legislation of the Russian Federation and judicial practice. The findings and results of the study can be used for further research and as educational material, in legislative work and in law enforcement practice.

scholarly journals The Legal Status of Subjects of Corporate Relationships: Doctrinal and Law Enforcement Aspects

2021 ◽  
Vol 2 ◽  
pp. 3-7
Author(s):  
Oksana V. Cherkasova ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal Status ◽  
Case Law ◽  
Civil Code ◽  
Law And Order ◽  
Generic Term ◽  
Foreign Law ◽  
The Russian Federation ◽  
The Right

The article reviews the legal status of subjects of corporate relationships, analyzes doctrinal and law enforcement aspects. The author analyzes the scientists’ standpoints, various models of interaction between the subjects of corporate relationships existing in foreign law and order, case law, arrives at conclusions about the correlation between the categories of the “right of participation”, “right of membership”, “right of management”. It is noted that the membership concept evolves out of participation by performing the function of a generic term. It is suggested to determine the “right of management” of a corporation as just one of the member’s activity areas along with other rights. The author recommends to ensure consistency of the provision of Article 2 of the Civil Code of the Russian Federation and Articles 65.2, 65.3 of the Civil Code of the Russian Federation where the concept of the “right of participation” would act as a basic one and the “right of management” would be its constituent part.

scholarly journals Responsibility of Individuals Managing a Legal Entity

Lex Russica ◽  
2019 ◽  
pp. 30-38
Author(s):  
Yu. A. Meteleva
Keyword(s):  
Russian Federation ◽  
Causal Link ◽  
Civil Code ◽  
Constitutional Court ◽  
Court Cases ◽  
Legal Entity ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Judicial Proceedings ◽  
The Russian Federation

The problem of liability of persons managing a legal entity was raised in Russian civil law after the adoption of legislation on joint-stock companies. At the beginning, it was more theoretical in nature, since the civil legislation did not contain any mechanisms for the implementation of such liability. To date, due to the reform of the Civil Code and changing approaches in jurisprudence, disputes concerning property liability of directors have formed a considerable category of cases. The paper analyzes the elements of such civil wrongs as damage caused to a legal entity by persons who are members of the managerial boards and are able to exercise a significant impact on such boards. All elements of the civil wrong under consideration are being analyzed: the act, the consequences (damage), the causal link between the act and the consequences, and the fault of the wrong-doer. The paper also elucidates the participants involved in such disputes. Exploring specific court cases, the author shows which acts of directors are recognized by the courts as illegal, what restrictions are expressed in the legal standings of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation to qualify as illegal different acts of directors and other persons. In the vast majority of cases of this category, persons exercising the functions of the sole executive body are prosecuted. Sometimes they are also the participants at the same time. The scope of persons covered by the term “determining the acts of a legal entity” is not defined in the law, which also hampers judicial practice. Judicial proceedings bringing such persons to justice are exceptional. Therefore, the author proposes to define in the Civil Code all persons who can commit an act and thereby cause damage to a legal entity. In addition, it is proposed to establish criteria of unreasonableness and dishonesty of actions of directors and other persons.

scholarly journals Usufruct Law: Origins, Comparative Legal Analysis and Prospects of the Development in Russia

2021 ◽  
pp. 321-345
Author(s):  
L. V. Shchennikova ◽  
◽  
A. Yu. Migacheva ◽  
Keyword(s):  
Russian Federation ◽  
Agricultural Land ◽  
Social Issues ◽  
Negative Impact ◽  
Economic Effect ◽  
Civil Code ◽  
Legal Analysis ◽  
Non Profit ◽  
The Russian Federation ◽  
The Right

Introduction: the reform of modern civil legislation cannot be completed without the adoption of a package of amendments to the section of the Civil Code of the Russian Federation devoted to real rights. Moreover, the lack of a developed and consistent concept of real rights has a negative impact on the development of all related areas. Real rights are designed to solve strategic problems of state development, among which social issues are currently coming to the fore. In this regard, it is important to study individual real rights proposed for introduction into civil legislation in terms of their potential to promote not only the economic but also the social development of the country. This paper focuses on usufruct in the aspect of its historical identity, powerful functional message, and internationality. Purpose: the research aims to clarify the significance of real law[1] regulation in solving nationally significant problems. Based on the achievements of foreign doctrine and legislation, we attempt to show the prospects of the introduction of usufruct in the Russian system of real rights. Methods: general (philosophical), general scientific, special scientific (including special legal) methods of cognition: dialectical, logical, historical, sociological, comparative-legal and formal-legal. Results: we have studied civil legislation of thirty countries of the world. The study has shown that the introduction of usufruct can have a positive social and economic effect, but only provided that the legislator does not deviate from the historically established concept of usufruct embodied in foreign law. Conclusions:the Draft of Section II of the Civil Code of the Russian Federation ‘Real Rights’ needs revision, with the initial social function of usufruct taken into consideration. It is necessary to work out a system of grounds for the emergence and termination of usufructuary rights, to introduce a mandatory notarial form of a contract for the establishment of usufruct, to provide for the possibility of establishing usufruct by virtue of law in relation to socially significant objects and on the basis of a court decision, to enshrine non-use of the right among the grounds for termination; to allow the establishment of usufruct in relation to citizens and legal entities, and not only non-profit organizations; to allow multiple usufructuaries; to describe in detail the rights and obligations of the owner and the usufructuary, including the duties of treating the property with care, and to indicate the possible limits of the disposal of the property by the usufructuary, including via transactions; to work out the rules for the exercise of the right of usufruct in relation to certain categories of objects, for example: property of minors, inheritance, agricultural land, forests, minerals, etc.

scholarly journals On Criminal Procedure and Criminalistic Measures of Counteracting Crimes Against Legal Entities

2021 ◽  
Vol 15 (1) ◽  
pp. 98-105
Author(s):  
Olga Aivazova ◽  
Galina Vardanyan ◽  
Irina Smirnova
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Criminal Procedure ◽  
Relevant Information ◽  
Criminal Proceedings ◽  
Legal Entity ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Right ◽  
Legal Entities

The article discusses some aspects of proving in cases of crimes against legal entities. The criminalistic description of the victim represented by a legal entity determines specific details of applying criminalistic and criminal procedure measures aimed at the identification, investigation, detection and prevention of such crimes. Under the current Criminal Procedure Code of the Russian Federation, one of the elements of ordering criminal proceedings is the protection of rights and legal interests of organizations that became victims of crimes. Part 1 of Art. 42 of the Criminal Procedure Code of the Russian Federation details this guideline for the first time by giving legal entities, viewed as independent subjects of criminal procedure legal relations, the right to be recognized as victims of criminal actions if the crime inflicted damage on their property or business reputation. Nevertheless, the imperfections in the regulation of legal entities’ participation in criminal proceeding, and the insufficient attention to the specifics of realizing their rights and legal interests in comparison with the physical persons of a similar procedural status give rise to numerous problems. The complex of such problems has a negative impact on the effectiveness of investigating this category of crimes and, as a consequence, on the ability of criminal proceedings to produce the intended result. The literal interpretation of Part 1, Art. 42 of the Criminal Procedure Code of the Russian Federation points out that the consequences of such crimes must include the infliction of two types of damage simultaneously — «to property and to business reputation», which can hardly be considered a good de­finition from the standpoint of juridical technique. Quite naturally, the investigation and court practice shows that law enforcers, while collecting proof on the character and size of damage inflicted on legal entities as a result of a crime, usually limit themselves to proving material damage, and even this damage is not proven in full (the common omission being losses of expected income). As for the damage inflicted on business reputation of a legal entity, its establishment during criminal proceedings is still problematic and, in practice, there is usually a gap in proving it. The authors point out that incomplete character of evidentiary information regarding the infliction of damage on the business reputation of legal entities is inadmissible and present their recommendations for resolving this problem, including the use of specialist knowledge and the improvements in the tactics of specific investigatory actions aimed at obtaining criminalistically relevant information on the case.

scholarly journals Reasons Why Inflicting Harm is not a Sufficient Indicator of Abuse of the Right

Lex Russica ◽  
2021 ◽  
pp. 22-31
Author(s):  
S. V. Musarskiy
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Point Of View ◽  
Constitutional Court ◽  
Negative Consequences ◽  
Legal Norms ◽  
Key Factor ◽  
The Russian Federation ◽  
The Right ◽  
Subjective Rights

One of the most difficult issues of civil law is the determination of the criteria for abuse of rights prohibited by Article 10 of the Civil Code of the Russian Federation. Among numerous points of view on this issue, the following has become very widespread in judicial practice: an abuse of the right can be established based on the negative consequences that have occurred for third parties as a result of the exercise of the right. Since these consequences are evident, then the exercise of the right constituted an abuse. Substantial support for this approach is provided by the Constitutional Court of the Russian Federation opining that the rule of Art. 10 of the Civil Code of the Russian Federation is aimed at implementing the principle enshrined in Part 3 of Art. 17 of the Constitution of the Russian Federation. Having studied the origins of this point of view and its legal foundations, the author noted a number of inherent shortcomings. In particular, this point of view does not distinguish between inflicting unacceptable harm and admissible actions causing harm to another person; it does not take into account the competition of legal norms; it does not take into account that causing harm prohibited by law is an offense and, therefore, it is not an act of exercising subjective rights. These and other shortcomings of the concept of causing harm, noted by the author of the paper, lead to the conclusion that the feature of “causing harm” in itself is insufficient to qualify the act as an act of abuse of the right and the application of Art. 10 of the Civil Code of the Russian Federation. In addition to the indicated feature, which is a prerequisite for the application of Art. 10 of the Civil Code of the Russian Federation, the court must establish another (key) factor, namely: the fact that, in its opinion, allows to distinguish between legal abuse and other lawful and unlawful phenomena.

scholarly journals Assignment of a Claim Under an Obligation in Which the Identity of the Obligee Is Essential for the Obligor

2020 ◽  
Vol 17 (4) ◽  
pp. 455-464
Author(s):  
A. A. Martsun
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Scientific Literature ◽  
Civil Code ◽  
Essential Value ◽  
A Value ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The Plenum of the Supreme Court of the Russian Federation adopted a resolution of December 21, 2017 No. 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction", which sets out important clarifications regarding the application standards contained in this chapter. At the same time, not all issues related to the assignment of the claim were resolved by the above resolution. One of these issues is the definition of the term “essential value of the identity of the creditor” or approximate criteria for such a value in the context of the need to obtain the latter’s consent to the assignment of rights. The presence of this problem is rightly indicated in the scientific literature [3, p. 549–655, 688–713]. The Author examines the Model Rules of European Private Law and the UNIDROIT principles in order to find a solution to the problem. Attention is drawn to the problem of determining the essential value of the creditor for the debtor in the case of assignment of the right of claim, as well as to the consequences of making the assignment without the consent of the debtor under an obligation in which the identity of the creditor was essential.In the Author's opinion, the identity of the creditor is recognized as essential for the debtor when the connection between the debtor and the creditor arose as a result of the conclusion of a transaction that has a personallyconfidential nature, or if the connection arose during the conclusion of other transactions in the case when the connection was broken during the execution assignment of rights entails or may entail a significant deprivation for the debtor of what he had the right to count on when concluding a transaction with the creditor.In addition, situations are considered that are an exception to the presumption of the absence of a significant value of the creditor's personality for the assignment of claims for monetary obligations. The author also points out that the consequence of the transaction on the assignment of rights without the consent of the debtor in the context of paragraph 2 of Art. 388 of the Civil Code of the Russian Federation is the nullity of the transaction on the basis of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation.

scholarly journals Expert Examination of the Use of a Dependent Invention and a Dependent Utility Model Under the Law of the Russian Federation

2018 ◽  
Vol 7 (3.14) ◽  
pp. 340
Author(s):  
Vladimir Evgenievich Kitaiskiy ◽  
Evgeniy Nikolaevich Petrov ◽  
Vera Vladimirovna Shvedova
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Patent Law ◽  
Utility Model ◽  
Patent Owner ◽  
Utility Models ◽  
The Russian Federation ◽  
The Law ◽  
The Right ◽  
Exclusive Right

The article deals with such objects of patent law as inventions and utility models, the use of which by patent holders in some cases is limited by the rights of other patent owners in accordance with the requirements of the Civil Code of the Russian Federation, as amended on March 12, 2014. Such inventions and utility models are called dependent. In fact, these are improvements to other inventions and utility models, to which the exclusive right applies. The patent owner of such a dependent object of patent law may legitimately use his invention or his utility model only upon obtaining the right to use another (main) object of patent law or at its alienation from the legal owner. For this, it is necessary to reveal the dependence of one's object of patent law on another (main) object. The article shows how it is possible to identify such dependence under the existing patent legislation of the Russian Federation.  

scholarly journals Correlation of the right to personal privacy and the right to legal defense in the context of access to private information: search for balance of interests

2020 ◽  
pp. 58-67
Author(s):  
Ivan Pavlovich Kolmykov
Keyword(s):  
Russian Federation ◽  
Private Information ◽  
Information Search ◽  
Personal Information ◽  
Constitutional Court ◽  
Personal Privacy ◽  
Balance Of Interests ◽  
The Russian Federation ◽  
The Right ◽  
Legal Defense

The subject of this research is the legislation of the Russian Federation on personal information and other legally protected secrets, civil procedural legislation, as well as law enforcement practice, including explanation  of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation in the area of protection of personal information and the process of access to personal information, as well as other legally protected information. The goal of this research is to determine the problem pertaining to access to personal information at the stage of assessment of validity of claims an individual intending to pursue litigation. The main conclusion of the conducted study consists in articulation of a problem associated with the ability to access personal information at the stage of assessment of validity of claims. The problem in question is not only relevant, which is confirmed by many instances in case law, but is also sparsely covered by researchers. This defines the scientific novelty of this paper, as well as dictated by objective complexity of the search for a solution to the problem in the context of balance of interests of counterpoising private parties: interests of an individual whose personal information is protected by law, and interests of an individual intending to gain access to this information for the purposes of pursuing litigation.

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