Moscow District Commercial Court Bulletin

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- Tort obligations
- Courts News
  
  News of Moscow District Courts
  
  Interview of the issue
  
  Kulakov V.V. Taking into account different concepts of equity when constructing certain special torts is a vital necessity
  
  Topicality
  
  Contributory negligence as a condition of tort liability of the owner of the premises in case of fire
  
  Analytics: Tort obligations
  
  A.G. Arkhipova Personal injury compensation: Balancing tort, insurance and social security law
  
  Compensation for injury to health is often considered only in the context of tort law. However, in practice, the possibility of compensation for harm often depends on insurance and social security relations, which also apply to the problem of causing harm to the health of the victim. The purpose of the article is to show a number of problems arising from such a correlation. In the author's opinion, compensation for health damage should be complete, and special provisions (including insurance law and social security law) should not create unreasonable restrictions for the victim. The article shows some such restrictions which might be eliminated by changing the practice of application of Articles 1064, 1072, 1085, 1086 of the Civil Code of the Russian Federation, as well as the norms of special legislation. An alternative solution is to reform the types of compulsory insurance relevant to the problem of compensation for damage to health, so that they would protect the interests of victims to a greater extent.
  
  Keywords: compensation for damage to health, personal insurance, compulsory insurance, compulsory medical insurance, compulsory social insurance, CMTPL insurance
  
  DOI: 10.46279/ASMO.2024.91.29.001
  
  R.R. Lugmanov Problems of general prevention and compensation of harm in tort law
  
  The author of the article emphasizes the classical functions of tort law. Using specific examples, doubts are expressed that the compensatory function of tort law, as well as the directly related function of deterrence works flawlessly. The author of the article considers that the very mechanism of damage compensation already conceptually lays down the preconditions of average statistical undercompensation of the victim's losses, which also does not have an incentive effect on future harm doers, rationally assessing the probability of development of certain events. The paper also questions the very idea of bringing to responsibility for a tort in a situation where the harm-causer consumes another's good (extracts useful properties) in a non-market way. Parallels are drawn between a claim for damages and an ordinary contractual claim for payment of the purchase price, which clearly highlights the quasi-exchange nature of liability in this case and the absence of real negative consequences for the tortfeasor.
  
  Keywords: compensation for harm, tort, non-contractual liability, protective obligations, general prevention of offenses
  
  DOI: 10.46279/ASMO.2024.46.42.002
  
  T.V. Deryugina On civil liability for causing harm, the conditions for its occurrence and the relationship with tortious obligations
  
  This scientific article attempts to take a fresh look at the problem of determining the conditions for bringing to civil liability for causing harm; it is distinguished from tortious obligations. It is substantiated that, as a general rule, illegality should not be considered as a condition for bringing to civil liability. A formal approach to understanding illegality is proposed. A distinction is made between the concepts of illegality and illegality. We offer our own approach to the concept of guilt. The composition of a civil offense consisting only of an object, a subject and an objective party is substantiated. It is proved that the tort obligation in relation to liability acts as a legal means of achieving the goal (restoration of the violated right)
  
  Keywords: harm, civil liability, tortious obligation, wrongfulness, illegality, illegality, guilt, elements of a civil offense, conditions of tort liability
  
  DOI: 10.46279/ASMO.2024.82.79.003
  
  L.A. Chegovadze Delict as a private offense
  
  the author, on the basis of highlighting the distinctive features of a private offense, characterizes a tort and shows that a tort obligation is established in the process of exercising the right to protection. The article shows that a tort obligation is similar in nature to a contractual one, only the legal grounds and methods of their establishment differ. The author concludes that the conditions for establishing a tort obligation are the fact of causing harm, expressed in concretized and recorded losses in property or in personal values of the victim, the fact that the harmer goes beyond the measure of the right exercised by him, making his behavior illegal, and the presence of a direct and immediate causal relationship between the act of the harmer and those losses to compensate which the victim claims.
  
  Keywords: private offense, tort, harm, damage, losses, obligation, subjective civil rights, legally protected interests
  
  DOI: 10.46279/ASMO.2024.59.89.004
  
  O.S. Mukhtarova Liability of the outsourcing company for damage caused by its employee
  
  The article is devoted to the issues of liability of outsourcing companies for harm caused by employees of such organisations. The study provides a definition of outsourcing and an outsourcing contract, notes the differences between outsourcing and out-staffing, provides examples from the judicial practice of arbitration courts, in which outsourcing companies act as third parties, as well as defendants, changing their procedural status in the course of the case. In conclusion, the author substantiates the need for the regulatory establishment of the concepts of outsourcing and out-staffing in the Civil Code of the Russian Federation, as well as the introduction of mandatory publication of information on the conclusion of outsourcing agreements.
  
  Keywords: outsourcing, out-staffing, liability, harm, employer, employee, provision of personnel, Russian law
  
  DOI: 10.46279/ASMO.2024.15.58.005
  
  Analytics: Open Tribune
  
  D.N. Latypov Selected issues of corporate law (review of judicial arbitration practice)
  
  The article is devoted to the study of the most pressing issues that arise when considering corporate disputes today. An analysis was made of the existing judicial practice regarding the use of decreasing (increasing) coefficients when determining the actual value of a participant in a limited liability company; the moment of the transaction aimed at alienating the share; features of participation in the management of the company of a participant in respect of whom a measure of criminal coercion has been chosen; the right of a company participant, to whom the company has a debt to pay the actual value of the share, to initiate bankruptcy proceedings for the company. The various positions among law enforcement officials on controversial issues are illustrated. Based on the results of the analysis, reasoned proposals for establishing a uniform approach were formulated.
  
  Keywords: non-controllable discount, actual value of the share, general meeting of participants, preventive measure, bankruptcy
  
  DOI: 10.46279/ASMO.2024.41.69.006
  
  A.A. Vedenin A civilistic study of the concept of enterprise in Russian civil law
  
  The article examines the enterprise as a subject (unitary enterprise) and an object of law (enterprise as a property complex). It is proved that these concepts do not exclude each other.
  
  The author critically analyzes the replacement of unitary enterprises by business entities with a predominant amount of state participation, primarily business entities with 100% or other decisive participation of public legal entities in their property (joint stock company, limited liability company).
  
  The necessity of legislative reform of unitary enterprises in the conditions of domination of market relations in the domestic economy while maintaining the important role of state ownership is argued.
  
  Due to the lack of legislative regulation, the expediency of having a concept in the current civil legislation of the Russian Federation for the implementation of legal regulation of enterprises that are not used in entrepreneurial activity is proved.
  
  Keywords: subject and object of civil law, unitary enterprise, public legal entity, enterprise as a property complex
  
  DOI: 10.46279/ASMO.2024.21.50.007
  
  Yu.S. Taranets, N.V. Saygushev Splitting of forfeit — a right or an abuse?
  
  The current procedural legislation does not restrict methods of judicial protection of violated rights, therefore the issue of the plaintiff’s procedural good faith in the election of the method of protection remains topical. The present study analyses good faith of participants of civil turnover when claiming the recovery of penalties accrued on the amount of debt for different periods.
  
  Keywords: ways of ensuring the fulfilment of obligations, penalties, penalties, proportionality of responsibility, breach of obligation, good faith, abuse of right
  
  DOI: 10.46279/ASMO.2024.30.89.008
  
  V.P. Sorokin The prosecutor as a participant of commercial proceedings in consideration of applications related to the execution in the territory of the Russian Federation of domestic arbitral awards, recognition and enforcement of foreign court judgements and foreign arbitral awards
  
  The article is devoted to the problems of participation of the prosecutor in commercial proceedings. The grounds for the prosecutor's application to intervene in a commercial case under consideration are named. The legislative fixation of the status of the prosecutor is shown. The category and criteria of public policy are considered. The importance of solving the task of protecting the security of society and the state is emphasised.
  
  Keywords: commercial proceedings, grounds for the prosecutor's entry into the case, status of the prosecutor, identity of legal decisions of the state and arbitration courts, category of ‘public order’
  
  DOI: 10.46279/ASMO.2024.68.45.009
  
  Court practice reviews
  
  Brief results of the analysis of the practice of dispute resolution, related to the application of Articles 248.1, 248.2 of the Arbitrazh (Commercial) Procedural Code of the Russian Federation
  
  Review of court practice and developed positions on topical issues arising in the consideration of tax disputes
  
  Scientific Advisory Council
  
  Minutes No. 27 of the meeting of the Scientific Advisory Council of the Moscow District Commercial Court held in a combined format
  
  Protocol Decision No. 27 of the Presidium of the Moscow District Commercial Court
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The openness and transparency of commercial courts is an essential requirement for the stable development of civil commerce.

Everyone involved in entrepreneurial activities needs to fully grasp the rules of the game. Everyone needs to know the rights they are entitled to and feel sure these rights are guaranteed to be defended.

Bulletin #3 2024

18.10.2024

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Bulletin #2 2024

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Conciliation procedures and amicable settlement in arbitrazh (commercial) proceedings

Bulletin #1 2024

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Good faith in civil law

Bulletin #4 2023

11.01.2024

Procedural guarantees for participants in arbitrazh (commercial) proceedings

Bulletin #3 2023

15.10.2023

Courts News News of Moscow District Courts Interview of the issue O.M. Rodionova. The inconsistency of proprietary law norms can be eliminated only by adopting a new edition of the second section of the Civil Code of the Russian Federation Topicality Qualification of a real thing as movable or immovable for the purpose of determining the period of acquisition limitation Analytics: Current problems of property law M.V. Bando The Right to Ownership […]

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