scholarly journals CORRELATION OF LEGAL STRUCTURES OF A PRELIMINARY CONTRACT AND AN OPTION TO CONCLUDE A CONTRACT: ANALYSIS OF THEORY AND SYSTEM OF LEGAL PRACTICE

2021 ◽  
Vol 7 (73) (1) ◽  
pp. 270-280
Author(s):  
N.A. Ablyatipova ◽  
A.V. Adler
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Scientific Literature ◽  
Legal Practice ◽  
Judicial Practice ◽  
Legal Nature ◽  
Legal Structures ◽  
The Russian Federation ◽  
Similarities And Differences ◽  
Contractual Structures

In this article, based on the analysis of the current civil legislation, judicial practice and scientific literature, the problem of the correlation of a preliminary agreement with an option to conclude an agreement is considered. Their legal nature is analyzed, criteria for similarities and differences between the specified contractual structures are determined. The paper provides examples of cases of incorrect differentiation of a preliminary contract and an option to conclude a contract in practice, and also describes the features of their qualification as mixed contracts. The authors conclude that the design of a preliminary contract is different from an option to conclude a contract, despite some similarities. The necessity of legal delimitation of the specified contractual forms, as well as the inclusion of some mixed structures in the Civil Code of the Russian Federation, which will allow to avoid their misuse by the law enforcement officer, is noted.

scholarly journals SOME ISSUES OF SYSTEMATIC LAW ENFORCEMENT PRACTICE IN RESOLVING DISPUTES ON THE DIVISION OF PROPERTY IN COMMON OWNERSHIP AND ALLOCATION OF SHARES FROM COMMON PROPERTY

2021 ◽  
Vol 7 (73) (1) ◽  
pp. 261-269
Author(s):  
N. A. Ablyatipova ◽  
E. V. Kunitsa
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Common Property ◽  
Scientific Literature ◽  
District Court ◽  
Judicial Practice ◽  
Common Ownership ◽  
Central District ◽  
The Russian Federation ◽  
A Share

In this article, based on the analysis of the current civil legislation, judicial practice and scientific literature, some problems of the division of property in common share ownership and the separation of a share from common property are investigated. Individual cases of implementation of Article 252 of the Civil Code of the Russian Federation are analyzed on the example of decisions of the Central District Court of Simferopol, sepa-rate features of the procedure for consideration and conditions for satisfying claims are highlighted. The authors considered the issue of the need to clarify the provisions on the division of property and propose specifying the cases of the need to file a claim for the division of property, delimiting this institution from the allocation of a share.

scholarly journals An Object of Vindication: Problems of Law Enforcement

2021 ◽  
Vol 16 (4) ◽  
pp. 76-93
Author(s):  
A. A. Guseva
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Russian Federation ◽  
Limited Liability ◽  
Civil Code ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Russian Federation ◽  
Theory Of Law ◽  
Authorized Capital

The paper is devoted to examining objects of civil rights in order to establish whether it is possible to subject them to vindication. The paper analyzes such objects as things, “incorporeal things”, non-cash funds, uncertified securities, intellectual property, shares in the authorized capital of limited liability companies, digital rights, cryptocurrency, etc. The author determines the legal nature of the objects under consideration with due regard to the theory of law and legal stances of courts. As a consequence, the author substantiates the relativity of the possibility or impossibility of their vindication under Art. 301 of the Civil Code of the Russian Federation. Also, the author examines the issues of existence of special mechanisms for protection of rights holders of uncertified securities and shares in the authorized capital of limited liability companies to find the interrelation between them and vindication. The paper provides the analysis of judicial practice on the issue of claiming civil law objects from someone else’s illegal possession. Conclusions are drawn as to which objects can be subject to vindication under Art. 301 of the Civil Code of the Russian Federation, which objects can be claimed by analogy of the law and which objects cannot be subjected to vindication.

Joint bankruptcy of spouses: theory and practice issues

2021 ◽  
pp. 271-280
Author(s):  
Irina E. Belova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Scientific Literature ◽  
Theory And Practice ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject ◽  
The Russian Federation ◽  
The Right

We research the issue of the current law enforcement practice of considering cases of joint bankruptcy of spouses in the framework of insolvency procedures of individuals. We emphasize that at the legislative level, joint bankruptcy of spouses and multiple persons on the debtor’s side is not provided for. Initially, this resulted in a lack of courts’ uniform approach, which has become a subject of discussion in the scientific literature. In this context, we pay attention to the importance of adoption by the Plenum of the Supreme Court of the Russian Federation of position on the combining admissibility of spouses’ banknote cases. In turn, the permissibility of combining cases did not resolve the issue of possibility of accepting a joint bankruptcy application, which again led to discrepancies in judicial practice. Special attention is paid to the admissibility of combining cases, which is the right of the court, and not its duty. We note that the arbitration courts, when solving this issue, study such circumstances as the subject composition of the persons participating in the cases of debtors, the volume and nature of prop-erty that is part of the bankruptcy estate of each debtor’s property, the per-formance of duties of financial manager by the same person. Despite the de-veloping judicial practice of joint bankruptcy of spouses, justified by the ex-planations of the Plenum of the Supreme Court of the Russian Federation, we believe that it expedient and necessary to establish the grounds, procedure and conditions for joint bankruptcy of individuals who are spouses at the legislative level.

The Mechanism Of Implementation Of The Constitution Of The Russian Federation

2019 ◽  
pp. 36-51
Author(s):  
Anatolii Yugov ◽  
Sergey Belykh
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Cultural Development ◽  
Russian Society ◽  
Legal Nature ◽  
Legal Document ◽  
The Russian Federation ◽  
Favorable Conditions ◽  
Scientific Ideas ◽  
Rational Mechanism

The Constitution, as the main universal and comprehensive legal document, establishes fundamental principles and defines the legal basis for development of public and state life in all politically significant spheres, serves as a guarantor of legitimacy and order, gives a boost to the development of society. The special political and legal nature of the constitution, the issues of its operation and the mechanism of its implementation are of great importance. In accordance to the authors’ approach, the mechanism of implementation of the Constitution of the Russian Federation includes the following components: 1) entry of the constitution into legal force; 2) its functions; 3) constitutional algorithm of unity and differentiation of public authority; 4) forms of implementation; 5) ways of implementation; 6) subjects of implementation; 7) objects of implementation; 8) institutions for modernization; 9) guarantees of implementation. The authors conclude that the modern scientific ideas of a rational mechanism of implementation of the Constitution of the Russian Federation contribute to solving the issues of economic and cultural development of the Russian society, help creating favorable conditions for proper law enforcement, strengthening legitimacy and order.

Features of Judicial Practice in the Russia as the Basis of Precedent

2020 ◽  
pp. 98-106
Author(s):  
V. V. Levin
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Armed Forces ◽  
Case Law ◽  
Constitutional Court ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Law Making

The article is devoted to the analysis of judicial practice as the basis of law-making activity in the Russian Federation, on the basis of which it is possible to create a precedent. Case law in Russia is Advisory in nature and is not mandatory for law enforcement practice. Courts use the signs of case law in their decisions in the reasoned part. Signs of case law is a ruling of the constitutional court of the Russian Federation and regulations of the armed forces of the Russian Federation.

Compensation for Infringement of Copyright and Related Rights: Essence and Primary Functions

2020 ◽  
Vol 5 ◽  
pp. 34-40
Author(s):  
N. V. Buzova ◽  
◽  
R. L. Lukyanov ◽  
Keyword(s):  
Russian Federation ◽  
Research Method ◽  
Comparative Law ◽  
Civil Code ◽  
Judicial Practice ◽  
Legal Remedy ◽  
Legal Nature ◽  
The Russian Federation ◽  
Judicial Protection ◽  
Exclusive Right

The Civil Code of the Russian Federation provides an opportunity to the rightholder in case of infringement of his exclusive copyright and related rights to demand in court instead of compensation for damages incurred by him to pay compensation. In most cases, when the rightholder applies for judicial protection of his violated rights, he requires the recovery of compensation. This article discusses the legal nature of compensation as a legal remedy of an exclusive right and its primary functions. When writing an article, a comparative law research method is used. As a result of the analysis of russian and foreign legislation, as well as judicial practice, it was found that compensation, in addition to restorative, also has a preventive function and can be considered an analogue of statutory damages.

To the Matter of Procedural and Legal Problems of Detaining a Person on Suspicion of Committing a Crime

2021 ◽  
Author(s):  
E.V. Bolshakov ◽  
◽  
I.D. Nazarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
The Moment

The subject of the research within the framework of the article is the criminal procedure institute for the detention of a person on suspicion of committing a crime. The legal nature of this institution is analyzed, and comments are given on the normative legal acts and judicial practice regulating the issues of detention. The theoretical basis of the research is based on the publications of the last two decades on this problem, in particular, reflecting the discussion of the process scientists S. A. Shafer, S. B. Rossinsky and A. A. Tarasov, the subject of which was the issue of the legal nature of a suspect detention in a criminal case. In the paper, the authors ask the following questions: What is the detention of a person on suspicion of committing a crime in accordance with the legislation of the Russian Federation? From what moment does the detained person acquire the status of a suspect? Is it possible to detain a person before initiating a criminal case? The study concludes that a person acquires the actual status of a suspect from the moment of direct detention, that is, before documenting this status and, as a result, before initiating a criminal case. Amendments to the articles of the Criminal Procedure Code of the Russian Federation are proposed, and the authors` versions of the definitions of the concepts «detention of a suspect», «the moment of actual detention» and «pre-trial proceedings» are given.

scholarly journals Extension of a fixed-term employment contract: some theoretical and practical issues

2019 ◽  
pp. 65-72
Author(s):  
Sergey Kichigin
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Necessary Conditions ◽  
Practical Work ◽  
Applied Problem ◽  
Employment Contract ◽  
Labor Contract ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Term Labor

The problem of introducing changes to a fixed-term employment contract in terms of amending (extending) its term is an urgent applied problem in the work of personnel services, which often arises in the course of their practical work. Argued, based on established judicial practice, the solution to this problem will create clarity in the application of the norms of the Labor Code of the Russian Federation. The norms of the Labor Code of the Russian Federation do not contain a ban on the application of the provisions of art. 72 of the Labor Code of the Russian Federation. However, to date there is no single, reasoned opinion on whether it is possible to change the term of a fixed-term employment contract, and if possible, under what conditions? On this issue, there are polar opinions. Both the courts and state authorities have repeatedly changed their position on this issue, right up to the diametrically opposite. In this paper, the author attempts to answer this question on the basis of the existing judicial practice and the courts understand the relevant provisions of the Labor Code of the Russian Federation, the opinions of the federal authorities of the Russian Federation, as well as their own attempts to interpret the provisions of the law, and concludes that the term of a fixed-term labor contract in the presence of compliance with the necessary conditions dictated by the norms of the Labor Code of the Russian Federation, established law enforcement practice.

The Features of Proving of the Property Transfer Fact under the Contract of Lease of a Buildings and Structures (Based on Judicial Practice Materials)

2021 ◽  
Vol 5 ◽  
pp. 29-37
Author(s):  
S. P. Balabanov ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Effective Strategy ◽  
Judicial Practice ◽  
Property Transfer ◽  
The Russian Federation ◽  
Admissible Evidence

The article is devoted to the consideration of the problem of proving of the property transfer fact under the contract of lease of a buildings and structures, in the absence of an act of acceptance and transfer. The purpose of the article is to determine the most effective strategy for proving the property transfer fact under the contract of lease of a buildings and structures. Achieving this purpose requires determining the essential features of specified contract, as well as identifying and analyzing the approaches, that have been established in law enforcement practice, regarding to admissible means of proving the property transfer fact. In the course of the research, analyzes the materials of the judicial practice of the arbitration courts of the Russian Federation for disputes arising from the contract of lease of a buildings and structures. Based on the analysis, the author of the article substantiates the conclusion that the act of acceptance and transfer is not the only evidence confirming the property transfer fact and also forms an approximate list of admissible evidence that can be used in court for proving this fact.

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