№ 2 2017 english

CONTENT

Review of court practice on the cases that were considered by the Commercial court of the Urals district in the I quarter of  2017

VIEW OF THE PROBLEM

Oksana Aboznova, Yuri Averkov, Julia Kolyasnikova, Irina Krasnobaeva, Irina Reshetnikova. Application of the Commercial Procedure Code of the Russian Federation.

Authors discus some problems of court jurisdiction, judicial notices, court expenses, accrual of interest on principal according article 395 Civil Code of the Russian Federation.

Keywords: commercial procedure, court jurisdiction, judicial notices, court expenses, application of article 395 CK of the RF.

Ekaterina Tsaregorodtseva. Problems of court orders procedure in a commercial procedure.

The article deals with analysis of court orders procedure implementation in a commercial procedure for the first year, some questions of issuance of court orders in a court practice.

Keywords: commercial procedure, court orders procedure, court order.

Tatyana Meshcheryakova. Conciliation in a commercial court.

The purpose of this publication is to analyze the practical implementation of reconciliation in commercial courts. Problems, difficulties and ways of their solution. Organizational and procedural measures to reconciliation of the parties.

Keywords: conciliation procedure, reconciliation of the parties in the commercial procedure, conciliation (negotiation) room, mediation, mediators.

Ksenia Lebedeva. Realization by commercial courts by consideration and settlement of disputes of the fundamental civil principle «conscientiousness» (part 1).

Article is devoted to being of understanding of the principle «conscientiousness» in science & to application of the main beginning of the civil legislation at adoption of decisions by commercial courts and also the most typical specificity of cancellation of decisions court of cassation instance and Supreme Court of the Russian Federation in the sphere of protection of the intellectual rights.

Keywords: principle of conscientiousness, estimated character of a concept, «rubber» rules of law, lack of uniform universal definition of the concept «conscientiousness», contiguity and interdependence of the concepts «principle of conscientiousness»«abuse of the right» and «unfair competition».

Anna Ermakova. The indication of potential unreliability of Unified state register of real property when recording data on the existence of litigation in respect of the officially registered right to real estate.

This article focuses on the problem of inability to achieve total de facto reliability by Unified state register of real property. The recording in Register of data on disagreement of civil life parties with its content as Register’s unreliability indicator is considered as a measure to prevent negative consequences of Register’s unreliability. The legal consequences of the recording in Register of these data are analyzed. The procedure of recording the data on the existence of litigation in respect of the right to real estate is considered. The problems relating to totality and speed of recording these data are raised.

Keywords: state registration of real property rights, the reliability of Unified state register of real property, data on the existence of litigation in respect of the officially registered right to real estate.

Anna Bolshakova. The possibility of using a «court pledge» in the bankruptcy of a debtor.

In the article the author analyzes a possible consequences, both positive and negative, for the creditor of the debtor, against whom bankruptcy procedures are introduced, while the creditor's claims are secured by the seizure of the debtor's property. He investigates the law enforcement practice of the operation of the legal norms of part 5 of article 334 of the Civil Code of the Russian Federation on the occurrence of pledge upon the seizure of the debtor's property, at the considering disputes on the inclusion of claims in the register of claims of creditors of the debtor.

Keywords: seizure of the debtor's property, bankruptcy, occurrence of pledge, claims of creditors secured by pledge.

IIdar Rakhmatullin. Some problems of bankruptcy of the entrepreneur in the case of his death.

In this article the author considers the issues of the heir's obligation to submit an application in relation to point 1 of article 213.4 Bankruptcy law, moment of occurrence of this duty, and also possibility of application of procedure of debt restructuring in case of death of debtor and cessation of bankruptcy proceeding of the inheritance in the absence of sufficient property to repay the costs of a bankruptcy case (paragraph 8 point 1 of article 57 of the Bankruptcy law).

Keywords: bankruptcy, bankruptcy of the citizen in the case of his death, bankruptcy of the inherited mass.

Denis Latypov. Separate issues of protection of civil rights of holders of documentary securities.

The article is devoted to the review of court practice in disputes on protection of the rights of holders of documentary securities (in particular, promissory notes). The subject of the study is the definition of the legal nature of term of the bill prescription for the protection of rights of the holder of documentary securities. The analysis of the legal consequences of the missed  term of the bill prescription is made, a problem of qualification of a voluntary fulfillment by the bill holder of the claims on a bill outside the term of the bill prescription is investigated. The generalization of the most frequently encountered questions in resolving such disputes is made. Based on the results of the analysis, a conclusion is drawn about the need to consolidate the separate legal norms designed to establish a uniform approach to the consideration of such disputes.

Keywords: the term of the bill prescription, limitation period, protection of the bill holder's substantive law, voluntary performance by the bill holder of the bill obligations.

DISCUSSION TRIBUNE

Ivan Rudakov. Concept of good faith acquisition of pledge in practice of commercial courts.

The article is devoted to the problem of good faith acquisition of security right. The author examines recent development of this concept in a practice of commercial courts and legislation. The conditions of granting a protection to the pledgee, who acted in the good faith, are analyzed.

Keywords: pledge, mortgage, pledge holder, good faith, appearance of right

Leonid Vakhrushev. The model of an independent guarantee as means of securing an obligation.

The article is devoted to analyze the model of independent guarantee in the Russian legislation. The author compares a legal regulation of independent guarantee in the Russian positive law and legal regulation of independent guarantee in acts of international private law. According to Russian law in paper are simulated several situations of difference between the beneficiary and the creditor; the principal and debtor. In article the author proposes to reject the model of independent guarantee as an aggregate of legitimated relations and identify the independent guarantee as an obligation between the guarantor and the beneficiary.

Keywords: independent guarantee, ensuring of the performance of obligations, request, surety, international private law, principal, legal model.