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MAIN PAGE > Journal "Legal Studies" > Rubric "Договор и обязательства "
Договор и обязательства
Bondarenko D.V. - Legal nature of a factoring agreement pp. 1-14

DOI:
10.7256/2409-7136.2016.2.18023

Abstract: The research subject is the theoretical problem of defining the legal nature of a factoring agreement. The article is aimed at forming the sufficient approach to the understanding of the legal nature of a factoring agreement. The author studies the particular constructions of a factoring agreement to analyze the essence of this phenomenon. Special attention is paid to the issue of complexity of the factoring agreement model. The research methodology includes the dialectical method, the system method, the methods of induction, deduction, abstraction, and the technical method. The author concludes that the mutual direction and the equality of assignment of a financial agent and a client in the factoring agreement determine its “credit-exchange” nature: monetary resources are replaced by financial claims. Provision of funds and financial claims assignment are the two main procedures defining the essence of the civil construction of factoring. The author reasons the opinion about the complex nature of a factoring agreement, based on the understanding of a complex agreement as a multicomponent agreement legislated as an independent form of a civil law contract. The conclusion about the complexity of the agreement, and the identification of the elements of combination can be applied in practice when considering the situation of a regulatory vacuum which can be overcome not only with the help of the provisions of law of obligation, but also using the provisions regulating the “primary” agreement. 
Vagonova A.S. - Modern models of consumer lending legal regulation pp. 1-6

DOI:
10.7256/2409-7136.2016.7.19526

Abstract: The author examines three dominant models of consumer lending legal regulation: paternalism, neoliberalism and consumerism. The article analyzes their main provisions and identifies their features based on the of comparison of the instruments of legal regulation of contractual relations, the availability of means of protection of the rights of a consumer-borrower, the observance of the principle of freedom of contract, the operational impact measures and the liability for the violation of rights of a consumer-borrower. The study is based on the comparative-legal and historical methods, which help identify the differences between the models. The author outlines the peculiarities of paternalism, neoliberalism and consumerism related to the interrelations between the parts of consumer lending agreements, which are reflected in the legislative consolidation of special provisions aimed at the protection of rights of borrowers.The author concludes about the compliance of the Russian legislation on consumer credit (loan) with the paternalistic model of legal regulation.
Sagdeeva L.V. - Free use as a limitation of exclusive rights pp. 1-13

DOI:
10.25136/2409-7136.2017.9.23950

Abstract: The idea of limitation immanently exists within law as one of social regulators of relations within society. The very fact that people should coexist, presupposes the necessity to take into account mutual interests, therefore dialectical categories of freedom and necessity and the related manifestations of freedom and limitations in law were studied by philosophers and legal theorists. The research subject of the present article is free use as an example of the institution of limitations of subjective civil rights with respect to exclusive right. The author considers the current legislation of the Russian Federation and foreign countries, legal positions of Russian courts and courts of foreign jurisdictions. The author considers the scholars’ positions on the issues of limitations of rights and title encumbrance. The research methodology is determined by the specificity of the research subject. It includes the set of general scientific research methods (analysis, synthesis, comparison). The author concludes that an exclusive right is always seen as limitless, and any limitations of right and title encumbrances (free use, exhaustion, compulsory license, prior user right and right of use after patent expiration) should be proved and can’t be interpreted broadly. Free use understanding in the legislation of the countries of Continental Europe differs from understanding in the countries of common law containing the “fair dealing” and “fair use” doctrines. However, the “fair dealing” doctrine, acting in Great Britain, Australia and Canada, presupposes the formalized list of actions, which are classified as faithful (free) use of objects of exclusive rights without author’s (or another rightholder’s) permission. To certain extent, it is akin to free use understanding within the Civil Code of the Russian Federation and legislation of other countries of Continental Europe. Besides, there’s a similarity of free use within the intellectual property institution with public easement as a limitation of property right. In this context, free use is considered by the author as a limitation of right rather than title encumbrance. 
Vasilchenko D.D. - On the influence of a corporate agreement on the will of the association pp. 10-21

DOI:
10.7256/2409-7136.2016.10.1999

Abstract: The research subject is the definition of the notion and the meaning of a corporate agreement concluded for the purpose of influencing the formation of the will of the association. The author defines the notion of a corporate agreement and points at the theoretical aspects of understanding of a legal entity’s will and the process of its formation. The research is aimed at the analysis of the possibilities which are provided by this agreement by means of application of corporate and non-corporate rights (acquisition or carve-out of shares or forgoing the carve-out) in this sphere. The author applies general scientific (analysis and synthesis) and special scientific (formal-legal and logical) research methods. The author comes to the following conclusions:Firstly, from the position of the subject matter, a corporate agreement is a bilateral or a multilateral deal, which:1. either is a beforehand defined way of influencing the process of the association’s will formation, if it is not concluded by all the members of the association;2. or contains the “quasi will” of the association if, firstly, the association is not public, secondly, all its members are the parties to the agreement.It is necessary to take into consideration that if in the first case the relations are regulated only by means of binding provisions, in the second case corporate legislation is also involved. But at the same time, in both cases the legally established procedures should be taken into account.Secondly, the author considers the provisions of an agreement, connected with the acquisition or carve-out of shares, as aimed at destabilizing relations between the parties to the agreement and supporting particular positions. The author notes that this agreement can be used for other purposes, not connected with the subject matter. 
Churilov A.Y. - Legal problems of discharge of an obligation by a third party when placing a discharge  pp. 12-22

DOI:
10.7256/2409-7136.2016.6.18413

Abstract: Due to the numerous problems related to the discharge of an obligation by a third party, carried out when placing a discharge, there is a need for the development of a civil theory of discharge of obligations by a third party. The author considers discharge of an obligation by a third party in the context of relations of a debtor and a third party. The author studies the problems of a third party's responsibility to a creditor for an improper discharge of a non-monetary obligation. The paper studies the problem of a creditor’s right to make sure of placing a discharge on a third party. The research methodology includes the methods of abstraction, classification, the dialectical, historical, system, inductive and deductive methods of cognition, and the formal-legal method. The author expresses a reasonable doubt in a justifiability of a legislative construction stipulating the transition of the creditor’s rights to the third party, who has discharged an obligation, provided by the clause 5, article 313 of the Civil Code of the Russian Federation. Besides, the author expresses doubt in the possibility to place on a third party a responsibility to a creditor for an improper discharge of a non-monetary obligation. 
Bogdan V.V. - Current Problems of Agreement-Based Regulation of Legal Relationship with Consumers pp. 26-35

DOI:
10.7256/2305-9699.2014.11.1335

Abstract: Currently, agreement-based regulation of relationships with consumers cases in practice significant difficulties which are expressed in the growing number of legal cases of this category. Such problems are due to the practice of including in the contracts of bad-faith provisions by the consumers’ counterparties. In this article, the author considers this problem, for the ultimate purpose of solving the question of effectiveness of agreement-based regulation, through the lens of Article 16 of the Law of the Russian Federation “On Protection of Consumers' Rights”.  It examines the possibility for the consumers to challenge in court certain provisions of contracts which infringe their rights. In this article, the author uses the methods of analysis, abstraction and specification, as a result of their application the author defined the conditions for effective agreement-based regulation of relationship with consumers. The scientific novelty of this work lies in the fact that this is one of the first works in which an attempt is made to substantiate the insignificant role of the contract as a regulator of relationships with consumers. During this research, the author draws the conclusions that the analysis and successions offered in this article may be used in further work aimed to improve the laws on the protection of consumers’ rights.
Zimneva S.V. - Agreements on responsibility elimination or limitation for intentional breach of obligations: theory and law enforcement practice pp. 39-51

DOI:
10.7256/2409-7136.2017.3.21760

Abstract: The research subject includes the problems of conclusion and delivery of agreements on civil responsibility elimination or limitation. The author considers the legal nature and the conditions of conclusion of such agreements. Special attention is paid to the limits of terms of agreement on elimination or limitation of responsibility in accordance with the freedom of contracting principle. In order to reveal the essence of agreements on elimination or limitation of responsibility for intentional breach of obligations and to detect the factors conditioning the nullity of an agreement, the author analyzes the judicial practice of dealing with disputes deriving from agreements. The author applies general scientific and special research methods: formal logical, comparative-legal and technical legal methods. The author concludes that civil legislation doesn’t define the form of guilt, doesn’t formalize the signs of criminal intent or negligence. These circumstances complicate application of clause 4 article 401 of the Civil Code of the Russian Federation. The author formulates the conditions taken into account by courts considering nullity of agreements on elimination or limitation of responsibility. The author formulates the proposals for the purpose of judicial practice improvement. 
Platonova N. - A car parking space as an object of civil rights pp. 44-50

DOI:
10.7256/2409-7136.2017.2.21779

Abstract: The paper studies the legal status of car parking spaces. The research subject is legal regulation of a parking space as a real thing. The research object is social relations emerging in the process of civil and legal regulation of car parking spaces in the Russian Federation. The author considers such aspects of the topic as the characteristics of parking spaces as real estate items. Special attention is given to the study of the peculiarities of state cadastral registration and state registration of property rights to this type of estate property. The research methodology is based on modern general scientific and specific research methods: system-structural, formal-legal, analysis and interpretation. For the interpretation of particular legal constructs and provisions the author applies the methods of formal logic and lexical and grammatical analysis. The novelty of the study is linked with analysis and systematization of legal provisions aimed at the regulation of the turnover of parking spaces. The special contribution of the author is the analysis of the concept of a parking space and its features as a real estate item. The study demonstrates that the amendments to the legislation are not sufficient, since they don’t regulate the problem of the legal status of parking spaces. 
Tokareva K.G., . - Legal nature of public enterprises. pp. 48-59

DOI:
10.7256/2305-9699.2014.8.12911

Abstract: The article concerns norms of current Russian civil and corporate legislation regulating specific features of legal status of open and close joint stock companies and joint stock companies of workers (public enterprises), producing co-operatives, legal practice regarding application of the Federal Law of December 26, 1995 N. 208-FZ "On Joint Stock Companies", Federal Law of July 19, 1998 "On Specific Features of Joint Stock Companies of Workers (Public Enterprises)", as well as the positions of legal scholars on these issues. The article involved comparative legal, logical and descriptive methods, as well as the method of systemic structural analysis. It is well-known that public enterprises are regulated by the current Russian legislation regarding close joint stock companies .However, over-regulated nature of many issues and legal dubiousness  of some provisions of the Law on Public Enterprises cause criticism of the legal construction of public enterprise in specialized legal literature, raising the issues of legal nature of these enterprises. The intermediary position between a joint stock company and producing co-operative call for the studies of this organizational legal form of a commercial organizations and questionning of its independence.
Makushkin V.O. - On the pledge of bank account contract rights on the ground of attachment pp. 49-59

DOI:
10.25136/2409-7136.2017.9.23606

Abstract: The research subject is the problem of application of the “court bail” concept to cash in banks. The author considers the problem in the context of the correlation of the doctrine novels and law enforcement practice with the current normative procedure and the established approaches of the doctrine to the institutions of pledge and bank account. The author gives general characteristics of a “court bail”, describes the legal nature of attachment and pledge of bank accounts, compares the subjects of attachment and pledge and reveals the problems of application of a “court bail” to cash in banks. The research methodology is based on general scientific methods of cognition: analysis, synthesis, induction, deduction, and specific methods: system-structural, formal-logical, comparative-legal analysis. The scientific novelty and topicality of the study is determined by the scientific discussion about the application of the “court bail” concept and by the absence of law enforcement practice. A “court bail” is a means of securing pledgees’ interests, but its unconditional application, based on the private nature of pledge relations, can lead to the infringement of public rights. It is especially important in relation to attachment of bank accounts of economic entities, which are used for payment for labour or compensation of damage. The results of the study can be used for further development of the “court bail” concept and changing the current legislation.  
Kolieva A.E. - Experience of fiduciary legal relationship development pp. 52-71

DOI:
10.25136/2409-7136.2015.12.16587

Abstract: The article considers the grounds of trust relationships in foreign and Russian legislation in the sphere of estate administration and commercial representation, describes the evolution of Russian law in relation to ownership, use and disposal of state property, and demonstrates the difference between the classical property rights and the right of operative management and management of affairs. The article characterizes some models of fiduciary legal relationships in various legal systems; particularly, the author considers the models of fiduciary legal relationships in the continental and Anglo-Saxon legal systems. The author applies the methods of abstraction, synthesis, analysis, induction, deduction and formalization. The author concludes that the models of fiduciary legal relationships in the continental and Anglo-Saxon legal systems demonstrate their conformity to the main principle: the divergence between their outward form and the real economic content. The analysis of the historical experience of fiduciary legal relationship development allows, on the one hand, making sure of the difficulty of the legislation development, and of the closeness of the relation between the economic structure of the society and the policy of the state in the sphere of economic management. On the other hand, despite the relative stability of legal regulation of these relations, ensured by the Civil Code of the Russian Federation, it’s hard to affirm that these relations have formed once and for all. 
Vasilchenko D.D. - Corporate agreement with third parties according to the Civil Code of the Russian Federation pp. 52-60

DOI:
10.7256/2409-7136.2017.3.22154

Abstract: The research subject is the key peculiarities of corporate agreement with third parties stipulated by clause 9, article 67.2 of the Civil Code of the Russian Federation (part one). Special attention is given to the differences between a corporate agreement between the members of a company and a corporate agreement between the members of a company and third parties. The author considers the similarities and differences between a corporate agreement and covenants. The author applies general scientific methods (analysis and synthesis) and special methods (formal legal and logical). The author reveals the main differences between a corporate agreement between the members of the company and an agreement between the members of a company and third parties. Firstly, a corporate agreement is a multilateral agreement, and a corporate agreement with third parties is a bilateral agreement between the members of a company as a unit and a third party. Secondly, a corporate agreement initiates an organizational relation, and a corporate agreement with a third party initiates a binding relation. Thirdly, the conclusion of a corporate agreement is conditioned by the common interests of the parties, and the conclusion of a corporate agreement with a third party is conditioned by the interest of the third party, i.e. the decrease of the risk of obligation breach by the members of a company which are a party to the agreement. 
Nikitina V.A. - Information obligations of parties to a tenancy agreement in Russian and German law pp. 61-71

DOI:
10.7256/2409-7136.2017.3.22218

Abstract: The research subject is information obligations of parties to a tenancy agreement in Russian and German law. They consist in the information exchange between the parties to the agreement in various issues of tenancy relations including gaining the counterparty approval of certain declarations of will of another party. Special attention is given to the requirements to the form and the terms of submitting legally material messages and parties’ responsibilities for information obligations breach. To study legal regulation of information obligations of parties to a tenancy agreement and law enforcement practice in this field in Russia and Germany, the author applies the comparative-legal method. The author attempts to consider a tenancy agreement parties’ obligations to bring the legally material information to another party’s notice, to compare these obligations in German law, and to define the extent of their legal regulation. The author concludes that, compared with the rules in Germany, in Russia the requirements in this field are not detailed enough, and therefore are double-edged. The author offers the measures to eliminate these legal gaps. 
Churilov A.Y. - Analysis of the models of a third party’s impact on the dynamics of a civil debt according to Russian legislation pp. 63-70

DOI:
10.7256/2409-7136.2017.5.22906

Abstract: The paper considers the main models of a third party’s impact on the dynamics of a civil debt and classifies them. The classification is based on a combined criterion including two elements: the first element consists in the third party of the debt; the second element reflects the peculiarities of the interests of the participants to the debt relationship, which is implemented with the involvement of the third party to the dynamics of the civil debt. The author detects two basic models of the third party’s impact on the dynamics of the civil debt: I model – the participation of the third party in performing the obligation on the side of the debtor; II model – the participation of the third party on the side of the lender. The research methodology is based on general scientific (descriptive, logical, system-structural, historical, linguistic methods, analysis and synthesis) and specific methods of jurisprudence (historical-legal, formal-legal, comparative-legal and technical-legal methods). The author concludes that the involvement of a third party usually leads to the transformation of some attribute of the proper performance of the obligation, for example, a place, a person, a subject or a time period. Thus, a contract, based on the model with the benefit of a third party, contains the transformation of such attributes of the proper performance as a proper person and a proper place. The peculiarities of involvement of a third person in the dynamics of an obligation depend on the character of the obligation: the third person can participate in the dynamics of both contractual and non-contractual obligations, including improper profit, delict and maintenance obligation. It’s important to understand that the involvement of the third party on the side of a debtor or a lender doesn’t form active or passive plurality of persons in an obligation. 
Andryushchenko A.V. - Organizational agreement as a general contractual construction pp. 71-84

DOI:
10.7256/2409-7136.2017.5.22926

Abstract: The research object is the category of organizational agreements in Russian civil law. The research subject includes certain problems of the theory of organizational agreements. Special attention is paid to the problem of defining the legal nature of organizational agreements and the feature distinguishing them from other civil contracts. The author reveals particular shortcomings of one of the classifications of civil agreements, developed by civil law, which is represented by organizational and property agreements. The author considers such aspects of the issue as the possibility to apply general obligatory provisions to organizational contractual relations with particular emphasis on the possibility to use various ways of protection of contractual rights. The research methodology is based on general scientific methods (dialectical, system, inductive, deductive) and specific methods of jurisprudence (functional, system, formal-logical). The author concludes that an organizational agreement is not a contractual type of agreement; it should be considered as a general contractual construction based on one feature, distinguishing organizational agreements from other civil agreements. The criterion for distinction is the presence of organizational legal relationship as a qualifying relationship (i.e. responsible for the qualification of the agreement). The author substantiates the necessity to formalize the general contractual construction of an organizational agreement and to formulate the common rule of protection of organizational rights, which can be applied to any agreement based on the organizational agreement model. 
Purge A.R. - Permanent rent in law enforcement pp. 80-88

DOI:
10.25136/2409-7136.2017.8.23709

Abstract: This article studies the practice of application of legal provisions in settlement of disputes arising from a permanent rent contract. The object of this study is the civil and procedural relations connected with the consideration and settlement of disputes arising from a permanent rent contract. The subject of study is the provisions of Russian civil legislation regulating the relations connected with the conclusion, modification and termination of a permanent rent contract, and also law enforcement practice of courts of general jurisdiction consisting in consideration and resolution of disputes connected with a permanent rent contract. The author applies general scientific and special methods of cognition: comparative-legal method is used for the analysis of new and old civil rules. The author also applies the formal-legal method. With regard to the specificity of permanent rent, significant scope of judicial practice in recent years has been connected with entering into and participation in rental commitments of the successors (heirs) of the original recipients. The current judicial practice helps describe the nature and the content of the most common disputes arising from a permanent rent contract, and detect and analyze the problems of law enforcement.
Bogdan V.V., Alymov A.A. - Problems of implementation of consumers’ rights to fair conditions of credit contracts: the insurance term pp. 93-99

DOI:
10.25136/2409-7136.2017.5.19089

Abstract: The authors give special attention to the problem of imposition of insurance services on consumers in credit contracts. The inclusion of a borrower into the insurance program together with the conclusion of a credit contract is a wide-spread practice of imposition of a hidden financial burden on a borrower, since such insurance services are fee-based. Banks, which have no right to provide insurance, act as mediators. The authors consider the procedure of conclusion of credit contracts containing the insurance term, and the judicial practice in this field of civil law. The authors use the methods of analysis, abstraction and specification, and define the conditions of effective law enforcement for contestation of credit contracts containing the insurance term. The scientific novelty of the study consists in the proposed ways to solve the problem of illegal imposition of insurance services on a consumer when concluding a credit contract. The authors conclude that the analysis and the proposals, formulated in this paper, can be used for further improvement of the legislation on consumer’ rights and citizens’ rights protection. 
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