No. 1 (2022): Business, Management and Law

CIVIL LAW, BUSINESS LAW, FAMILY LAW

1. Tasalov Philip A. Unified Information System in Procurement: Problems and Contradictions in the Regulatory Framework

Abstract: The unified information system in the field of procurement is one of the largest state information systems, the development of which determines the future of digitalization of procurement and efficiency of work, primarily of customers and participants in procurement. The article deals with the peculiarities of functioning of the unified information system in the field of procurement. The legal status of the operator of such a system is analyzed. The peculiarities of the conclusion and execution of the contract for the operation of the information system are established. The author examines the peculiarities of financing the services for such operation, considering the need to analyze the budget expenditures for the maintenance of a unified information system in procurement. The article substantiates the existence of gaps in the normative regulation of relations between the executor of the contract for the maintenance of the state information system and third parties. The analysis of legal consequences of the customer’s use of life-cycle contracts in the sphere of maintenance and development of state information systems is presented. The article reveals the absence of specific rules that determine the order of customer’s choice of competitive procurement method, on which results the parties conclude a contract for the maintenance and development of state information system. On the basis of the study, the article formulates proposals aimed at improving the Russian legislation on the contractual system in the field of procurement.

Keywords: electronic platform on procurement; government contract system; competition; digitalization; electronic bidding

 

2. Smirnov Pavel A., Faingold Dmitriy E. On the Latest Judicial Practice in the Field of Cryptocurrency Circulation

Abstract: The article examines the circumstances of an actual civil case considered by the courts of general jurisdiction. The plaintiff on the defendant’s proposal concluded a contract with him, according to which he transferred 0.5 bitcoins on the basis of maturity, repayment, and payment. The defendant undertook to use the loan amount strictly for its intended purpose: to invest in the cryptocurrency market. The defendant undertook to repay what he had received and to pay the interest. The defendant failed to fulfill his obligation to return the property. The court sided with the defendant, justifying the decision with controversial arguments, namely, that cryptocurrency is not an object of civil rights; that cryptocurrency holder is not entitled to judicial protection even if there are grounds; that bitcoin is money surrogate prohibited by law; those participants of valid transaction are free not to fulfill their obligations; and that bitcoin cannot be recognized as foreign currency or currency value. The article offers counterarguments based on the norms of modern Russian business law.

Keywords: cryptocurrency, bitcoin, investment agreement, subject of loan, performance of obligations, freedom of contract, currency

 

3. Кosyanenko Elena M., Vorobyov Kirill. Problems of Defining and Imitating the Corporate Identity of an Enterprise

Abstract: The research is aimed at analyzing the legal regulation of a complex object of competition law, which includes not only protected, but also unprotected elements of intellectual property law, collectively receiving protection as a corporate identity of the enterprise. The results of the study were conclusions about the need to protect established brands from parasitic competitors by clarifying the definition of concepts, establishing the criteria for copying, imitating or mixing with someone else’s goodwill, and the boundaries of misleading the consumers about the business entity, goods, services and commercial designations. Extraterritoriality and mass digitalization of business will inevitably entail mutual claims of competing entities. The practical significance of the study lies in the debatable nature of the conclusions with respect to current trends in business development in Russia. The comparative legal part of the work is of scientific importance. It covers the examples of some countries in matters of protecting the corporate identity of the enterprise. The article can serve as a basis for further study of the procedures for legal regulation, and protection of the rights to the corporate identity of the organization, including in the era of digitalization of intellectual property objects.

Keywords: corporate identity, means of individualization, competitor, mixing, protection of competition, imitation, similarity, copying, unfair competition

 

BANKRUPTCY LAW

4. Kushnarev Aleksandr S., Puchkov Vladislav O. Digital Financial Assets in Bankruptcy Cases

Abstract: This article analyzes a new object of civil law – digital financial assets. The main problem raised by the author concerns the issue of compliance of digital assets with the necessary characteristics for their inclusion in the bankruptcy estate. For this purpose, the author uses a doctrinal approach to the definition of the bankruptcy estate as property “in the broad sense”. The article contains different points of view on the place of digital financial assets in the system of civil law objects. The authors highlight the approach according to which digital assets only change the form of the object, without changing the object itself, citing the example of Luxemburg legislation, where ordinary securities are equal to digital securities in legal regulation. In this regard, the authors speculate on the advisability of giving digital assets the status of independent objects. The conclusion focuses on current problems of law enforcement.

Keywords: digital financial assets, digital rights, bankruptcy, debtor’s bankruptcy estate, object of civil law

 

5. Adrova Polina O. Comparative Analysis of Judicial and Out of Court Bankruptcy

Abstract: Since 2015, the legislation on insolvency has undergone significant changes that have had a positive impact on the Russian economy. This article examines the amendments made to the Law on Insolvency (Bankruptcy) concerning the out-of court bankruptcy of citizens. The author analyzes the scientific approaches to understanding of the legal nature of out-of-court bankruptcy as an independent procedure, which he places in question. The paper provides a comparative analysis of judicial and out-of-court bankruptcy procedures, and defines their similarities and differences in a number of characteristics such as: the order of filing and consideration of the application, terms, persons involved in the case, the presence of restrictions, and etc. Attention is paid to the problems of empowerment of multifunctional centers to conduct out-of-court bankruptcy, control of debtor’s activities after the introduction of the procedure, and observance of creditors’ interests in the absence of a bankruptcy trustee. The provisions governing out-of-court bankruptcy are analyzed in comparison with the enforcement proceedings. The substantiation of the thesis that out-of-court bankruptcy is a legitimate write-off of debts without carrying out the actions provided by the Law on bankruptcy to identify the debtor’s property and repay creditors’ claims is given. It is proposed to consider out-of court bankruptcy as a special procedure consisting of several stages: preparatory and main.

Keywords: insolvency (bankruptcy), out-of-court bankruptcy, bankruptcy procedure, bankruptcy of citizens, enforcement proceedings

 

CIVIL PROCEDURE, COMMERCIAL (ARBITRAZH) PROCEDURE

6. Zverev Mikhail A. Legal Nature of the Institution of Replacing an Improper Defendant in Civil Proceedings

Abstract: The article discusses the institution of replacing an improper defendant in a civil procedure. Based on the analysis of the regulatory framework and the doctrine of civil procedure, important conclusions are drawn about the concept of an improper defendant and the legal nature of the institution of replacing an improper defendant. The author concludes that the improper defendant should be understood as a defendant who has no connection with the disputed substantial legal relationship. The author considers possible views on the legal nature of the institution of replacing an improper defendant; it is concluded that this legal institution is a kind of regulatory right of the defendant. Based on the theoretical conclusions, essential practical conclusions are drawn: the replacement of an improper defendant with a proper one is possible not only at the stage of preparing the case for trial and consideration of the case in the court of first instance; it is possible to replace one inappropriate defendant with several ones and vice versa. The institution of replacement of an improper defendant in civil procedure is compared with a similar institution in administrative and commercial procedure. It is concluded that it is necessary to adopt the legal regulation of the institution in question in the arbitration process into the civil process, namely, that the arbitration process provides for the possibility of attracting a proper defendant as a second defendant. Such a mechanism of regulation gives the plaintiff and the court (with the consent of the plaintiff) an additional option for action in a disputable situation, when it is difficult to determine the appropriate defendant

Key words: civil procedure, improper defendant, replacement of an improper defendant, subjective rights, regulatory rights, arbitration procedure, administrative procedure

 

COMPARATIVE LAW

7. Belykh Vladimir S. Agency Contract in English Law

Abstract: This article deals with topical issues: the concept and types of the agency agreement, the conclusion of the agency agreement, and the execution of the agency agreement. It is noted that the agency contract is a universal agreement that combines the models of contracts of agency and commission. In article the comparative analysis of designs of the agency contract under the law of England and Russia is carried out. The features of the agency contract are considered, in particular: the subject composition (agent and principal). Special attention is given to features of concluding and performing the agency contract. Thus, emergence of agency relations occurs on different grounds. The article reveals the basic rights and obligations of the parties in the performance of the agency contract.

Keywords: agency agreement, types of contracts, signs of the agency agreement, subjects of the agency agreement, conclusion of the agency agreement, performance of the agency agreement

 

8. Bazhina Maria A. Liberalization of the Railway Industry in Russia and Germany: Comparative Legal Analysis

Abstract: Liberalization of the railroad industry is one of the frequently discussed issues in the transport sphere, not only in Russia, but also in the world in general. Despite the seemingly well-established models of railroad management in every state, there is an ongoing discussion among practitioners and scholars about the most economically efficient model for managing the railroad sector. Among the currently known three dominant theories of railroad transport liberal reforms, many states use only certain elements of them. This naturally raises the question of the necessity of reforming according to one of these theories in order to achieve the highest economic performance. The analysis presented in this article shows how much the railroad industry in Russia and Germany needs to be reformed. The comparative-legal approach allows us to identify similar and different features of the formation of the modern model of railway industry management in Russia and Germany, as well as to identify possible ways of reforming in these states. The author proposes possible ways of reforming the railway industry.

Keywords: railroad reform, liberalization, carrier competition, railway transportation, private ownership, infrastructure, monopoly