ESTABLISHMENT OF THE FACTUAL CAUSATION IN TORT

The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.

MATERIALS TO STUDYING THE LEGAL NATURE OF LEASING: SWITZERLAND

Materials include commented translation of four important judgments of Swiss Federal Court capturing the essential details of contemporary Swiss understanding of leasing with regard to insolvency, form of contract, property law statuses and security title retention, sham character and other issues.

IDEAL SHARE IN EXCLUSIVE COPYRIGHT: UTOPIA OR REALITY?

The article discusses the problem of allocating ideal shares in exclusive copyright. The legal and dogmatic design of exclusive rights allows you to establish not only a joint, but also share right and this is fully consistent with the stimulating function of exclusive rights. The paper analyzes various theoretical models of exclusive right, and concludes that the lack of ideal shares in exclusive right becomes a stumbling block for commercializing the results of intellectual activity and leads to paralysis of civil turnover.

LAW AND DEVELOPMENT MOVEMENT IN LIGHT OF CONTRADICTIONS OF LEGAL RECEPTION

The western Law and Development movement engaged in legal assistance to the socioeconomic development of the third world states as well as the postsocialist countries by the Western patterns includes two different stages, the first one continues about a decade and a half from the beginning of the 1960s, the second lasts approximately twenty years starting the beginning of the 1990s. The article provides a detailed consideration of the history and the achieved results, the content of the activities as well as the theoretical sources of the movement in the jurisprudence, the sociology and the economics. The Law and Development movement encourages and assists in the legal reception from the Western legal orders. Taking into account the distinction between the political and the doctrinal legal reception, the movement acts within framework of the former because it uses the legal regulations as an instrument for achievement of extra-legal purposes. Informed by this approach, the legislation serves the present-day policy whereas the law, which is a special social regulator establishing freedom in a social life, does not find a proper expression in the legislation, a statute compliant with the law is not the legislator’s reference point. Hence the political legal reception does not contribute to a successful legal development, establishment of legal values and the rule of law. This predetermines a failure of the Law and Development movement as a whole. The true outcome of the movement is an impulse of some kind to the further independent legal development in the interested recipient countries.

THE PRINCIPLES OF CIVIL LIABILITY (continuation)

The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.

CIVIL LAW STATUS OF BENEFICIARIES OF A PRIVATE BENEFIT FOUNDATION

This paper examines the civil law status of the beneficiaries of a foundation (Stiftung) subject to private benefit purposes. It concerns the reasons and impact of conservative and instrumental approaches to the permissible purposes of the foundation, the classification criterion of private benefit foundations (privatnützige Stiftungen) and public benefit foundations (gemeinnützige Stiftungen), the limits to which the Germanic countries tolerate with establishment of the private benefit foundations and then defines the civil law status of the beneficiaries from the perspective of their claims to the foundation and participation in the foundation management, control and protection. As a result of the research the ways to mitigate the risks, that private foundations can create for the participants in civil law relations, are proposed in the light of the legal nature of the foundation.

THE EARNEST IN THE RUSSIAN CIVIL LAW

On the basic of historic construction the legal sense of earnest regulation is considered having been adopted from the past word by word. This doesn’t amount to main objective implementation of this remedy to make contractual conditions of future agreement binding on parties subject to the broad autonomy of will. Legal provisions on earnest don’t correspond to categories of “liability”, “unilateral transaction”. The regulation should promote such tools as “compensations form release of obligation”, “offer”, “penalty”, “preliminary contract”. At present the institute of earnest isn’t operational and applicable only within the market of residential real estate so far. The efforts were made to present the renewed legal provisions on earnest as normative basis of this legal instrument having long spread over the limits of ordinary obligation security measure.

RISK DECOUPLING STRATEGIES IN CORPORATE LAW: THEORETICAL MODEL AND PRACTICAL IMPLICATIONS (first part)

The principal focus of the paper is the risk-decoupling phenomenon in corporate law. Key strategies for achieving decoupling are considered, such as those, in which the amount of risk of a shareholder is less than the amount of her participatory rights in the corporation, as well as those, in which the risk of a shareholder is higher than the rights of participation belonging to her. This effect is achieved through the use of derivatives, swaps, the record date capture as well as through contracts for difference. As a result of the analysis of the theoretical model of these strategies and the application of the Law & Economics methodology solutions for correcting negative effects arising from the use of the above mentioned mechanisms of risk-decoupling are proposed.

SUBORDINATION AGREEMENT IN THE SYSTEM OF PRIVATE LAW

The article is dedicated to the category of subordination agreements. Based on the concept of conflict of rights in personam, the author makes an attempt to integrate this category into the system of private law, to determine the legal nature of subordination, and from these positions to assess the effectiveness of Art. 309.1 of the Civil Code of the Russian Federation, implemented in the course of the civil law reform.

THE THOUGHTS ON THE DIFFERENCES IN THE CONTRACT LAW TRADITIONS IN THE COMMON LAW AND THE CIVIL LAW LEGAL SYSTEMS

The extent to which the contract law traditions in the common law systems really differs from those in the civil law ones is discussed in the article. Today, the existence of such differences is difficult to reject, but their modern description looks more like rough cartoon sketches, which do not take into account lots of additional factors. The article proposes considering this matter more carefully.