scholarly journals Implementation of the Doctrine of Good Faith (Bona Fides) in Corporate Legal Relations

2020 ◽  
Vol 1 (12) ◽  
pp. 70-80
Author(s):  
Yu. V. Brisov
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Civil Code ◽  
Good Faith ◽  
Corporate Ethics ◽  
The Supreme Court ◽  
The Usa ◽  
The Russian Federation ◽  
The Law

Good faith (bona fides) is presented in the Civil Code of the Russian Federation as a general principle and presumption. In resolving corporate disputes, the courts are governed by general principles of good faith. However, corporate relations have a specificity due to, inter alia, the variety of corporate forms. It can be assumed that the application of good faith provisions should also vary taking into account the characteristics of corporate patterns, the types and forms of corporate relations, subjective internal corporate circumstances. Common law countries have developed a system of good faith elements and special tests to apply the required requirement of good faith according to the context. A special place is given to fiduciary relations as a product of bona fides. The author has carried out a comparative analysis of the provisions of the Plenums of the Supreme Court of the Russian Federation, the Supreme Court of the Russian Federation and the law enforcement practice of Germany, the USA, Great Britain and Canada on the issues of good faith in the consideration of corporate disputes. Special attention is paid to the interrelation between corporate ethics and law. Examining a number of key cases from the law-enforcement practice of the courts of the Anglo-American system of law, the author substantiates the possibility of applying special tests, namely, objective and subjective good faith tests, to regulate matters related to the application of the rules of good faith from the Civil Code and special laws in dealing with corporate disputes. Special attention is paid to the role of courts and permissible discretion in the formation of standards of enforcement of blanket norms and general principles of law in corporate relations.

scholarly journals The Concept of Freedom of Enterprise Through the Prism of Criminal Law Characteristics of Fraud

2019 ◽  
Vol 13 (2) ◽  
pp. 291-299
Author(s):  
Yekaterina Yakimova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Criminal Code ◽  
Negative Results ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Law ◽  
Entrepreneurial Activities

The research of issues connected with the analysis of business risks is relevant because of the problem of qualifying the actions of entrepreneurs under the fraud-related Articles of the Criminal Code of the Russian Federation. Besides, the development of technologies increases the number of frauds in the digital environment, which makes it necessary to determine key features of fraudulent actions connected with the changes in the economic organization of the society connected with the digital transformation of some branches of the world economy in general and Russian economy in particular, of the social sphere, and of the specifics of public administration of some areas of life. The responsiveness of lawmakers manifested in amending a group of Articles in the Criminal Code of the Russian Federation regarding the legal characteristics of fraud, shows that there are some problems in the legislative regulation of this sphere. The author believes that they are caused by an attempt to assess the degree of freedom of enterprise and the degree of involvement of each side of legal relations in the risk of investment. The analysis of legislation, the law enforcement practice, statistical data give reason to believe that most of the problems of legislative understanding of fraud in entrepreneurship are not connected with contradictions in the legal regulation, but rather with the drawbacks of the law enforcement practice, the prevalence of repressive methodology in classifying the actions of entrepreneurs and the inner conviction of the law enforcement employees that entrepreneurs intentionally strive to obtain negative results in any, and primarily entrepreneurial, activities. The author argues that further improvement of the Criminal Code of the Russian Federation will not yield any tangible results, which testifies to a considerable transformation of the fraud-related Articles in the last 15 years. Changes in the practice of enforcement of the criminal law’s articles regarding fraud are only possible after the principles of such work are worked out by the Supreme Court of the Russian Federation, who at present pays much attention to this issue, although some clauses of the Plenary Session of the Supreme Court of the Russian Federation require further analysis and improvement.

THE ROLE OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION IN THE INTERPRETATION OF RULES ON ACQUISITION PRESCRIPTION OF LAND PLOTS

2021 ◽  
pp. 5-10
Author(s):  
A. V. Dulger ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Code ◽  
Constitutional Court ◽  
New Approaches ◽  
The Supreme Court ◽  
Scientific Papers ◽  
Unknown Reason ◽  
The Russian Federation ◽  
The Law

The paper considers the institution of acquisition prescription relating to real estate (land plots), the procedure for the implementation of which is established by Article 234 of the RF Civil Code. The paper presents the main problems of the law enforcement practice when considering cases in courts on the recognition of property rights under acquisition prescription. In particular, the study reveals the main reasons for mass refusals of courts in such claims, despite the existence of a norm in the law and a number of explanations of the highest judicial authorities. To identify the problems and the ways to their solution, the author analyzes various scientific works covering this topic; draws attention to the lack of scientific papers on the relevant issue and the insufficient investigation of problems and ways to solve them. Despite the explanation of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, most approaches contradict law enforcement practice and the principles of civil law. For some unknown reason, the publications after November 2020 do not take into account the Resolution of the Constitutional Court of the Russian Federation of 26.11.2020 No. 48-P on the issues of acquisition prescription, which has a generally binding nature and answers a lot of problematic issues in the law enforcement practice of Article 234 of the RF Civil Code. The paper describes new approaches proposed by the Constitutional Court of the Russian Federation, which should be used when considering cases on prescriptive possession claims and implementation of this institution. The author puts forward a thesis about filling in numerous gaps, but it is too early to speak of the end of the discussion. The content of Article 234 of the Civil Code of the Russian Federation requires bringing in accordance with new approaches of the Constitutional Court of the Russian Federation in the interpretation of this norm.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

scholarly journals Binding Nature of the Supreme Court of the Russian Federation Explanations in Criminal Law

Lex Russica ◽  
2021 ◽  
pp. 95-107
Author(s):  
I. A. Klepitskiy
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
General Rule ◽  
Criminal Cases ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Nulla Poena Sine Lege ◽  
The Russian Federation ◽  
The Law

The question of the legal nature and the binding nature of explanations of the Supreme Court of the Russian Federation remains debatable in the literature. When considering criminal cases, the courts do not always follow the decisions of the Plenum of the Supreme Court. It seems that the explanations of the Supreme Court, while not being a source of criminal law, are nevertheless binding on courts and officials applying the norms of criminal law. This is a general rule, to which there are exceptions. First, there are erroneous explanations of the Supreme Court, which are not based on the established judicial practice and are not supported by it. Second, there are outdated explanations of the Supreme Court that do not meet modern legal realities. Third, there are explanations of the Supreme Court, which, in relation to a particular situation, require an expansive or restrictive interpretation. In these three situations, the Supreme Court’s explanations do not bind the law enforcement officer. The binding nature of the Supreme Court’s explanations is determined by the value of the law as such. Questions of law require a uniform resolution. An alternative to a uniform interpretation of the law is arbitrary administration. Arbitrary administration is not within the competence of the judge. There is no case law in Russia. The works of legal scholars in modern Russia also cannot satisfy the need for a uniform interpretation of the law. The significance of the explanations of the Supreme Court determines the high requirements for their quality. The Supreme Court’s explanations should not directly contradict the law. The Supreme Court’s explanations should not change unless there is an urgent need to do so. The rule nullum crimen, nulla poena sine lege, being an achievement of legal culture, binds the Supreme Court. By clarifying the practice of applying the law, the Supreme Court forms and preserves judicial doctrine, thereby providing legal certainty.

scholarly journals «Use of office position» when committing fraud: problems of application

2021 ◽  
Vol 60 (1) ◽  
pp. 97-104
Author(s):  
Valeria V. Zabrodina ◽  
Anna G. Menshikova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Position Errors ◽  
Judicial Practice ◽  
Official Position ◽  
The Supreme Court ◽  
The Subject ◽  
The Russian Federation

The authors in the article consider the problems of establishing the qualifying feature use of official position when committing fraud. Based on the analysis of the doctrine of criminal law, clarifications of the highest court, materials of specific judicial practice, a circle of subjects related to persons using their official position is determined, as well as the procedure and mechanism for using official position in fraud. According to the results of the study, it is proposed to include in the current resolution of the Plenum of the Supreme Court of the Russian Federation On judicial practice in cases of fraud, misappropriation and embezzlement additional clarifications that reveal the understanding of the content of the sign use of official position. The authors propose to expand the understanding of the subject of official fraud. Such provisions will promote uniformity in law enforcement and helpavoid qualifying fraud using official position errors.

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.

Sign in / Sign up

Export Citation Format

Share Document