Articles

The article is devoted to the formation and development of legal regulation of the state defense order in Russia as an integral part of ensuring the security and defense capability of the state. The legal essence of the studied field of law is revealed through a philosophical approach of the presence of external and internal factors in the development of the relevant legal relations, the article defines the constitutional foundations as a mandatory element of the existence of the relevant legal mechanisms. A significant place in the article is given to the convergence of business law and administrative law, taking into account the availability of relevant research in different branches of law. Entrepreneurial relations with the civil law method of regulation are highlighted as the main ones determining the essence of the state defense order. Attention was drawn to the wide possibilities of theoretical and applied research in view of the relatively small number of works in a given area, and an attempt was made to determine the current state of legal regulation of the state defense order at the moment, as well as possible development prospects. The presence of unnecessary administrative and legal barriers is emphasized. The article also draws attention to the fact that a significant amount of work in this area is of a closed nature, however, from the point of view of taking into account the interests of the executors of the state defense order and ensuring the possibility of discussion regarding options for optimizing the current legislation in the field of state defense order, including in order to save the economic potential of business entities, ensuring their uninterrupted functioning, the availability of open research work is essential.

The article examines the means of meeting state (municipal) needs, among which the author includes public procurement, nationalization, requisition, legal forms of public-private partnership (concession agreements, PPP agreements, special investment contracts, production sharing agreements, etc.), the return of state property (assets) from abroad, donations (including crowdfunding), etc. The author has compiled the table in which the means of satisfying state (municipal) needs are arranged depending on the degree of imperative of their legal regime and on the "level of publicity" of the entity using this tool (state, private entity or they are jointly). The article separately examines institutions related to the means of meeting state (municipal) needs (confiscation, "self-sufficiency") or institutions whose attribution to these means is debatable (privatization, "public-public partnership", etc.). The author comes to the conclusion that the Russian public procurement system is the core (central link) of the system for meeting state (municipal) needs, and all other means are its secondary elements. The task of the legislator is to create the common system of means to meet state (municipal) needs by analogy with the contract system in the field of procurement and the corresponding legal framework.

This article examines current issues related to improving legal training in Russia. The author notes that modern lawyers often become narrowly focused on instrumental approaches, losing a fundamental understanding of law as a social and cultural phenomenon. The article criticizes the overemphasis on "practical orientation" in the development of legal education, the market-service (marketing) approach, the reduction of fundamental disciplines, and the lack of a unified ideological framework. A solution is proposed: developing a nationally oriented, fundamental legal thinking based on a civilizational approach and the uniqueness of the Russian legal system. The possibility of dividing training into two sectors is considered: fundamental training at specialized universities and specialized training at industry-specific universities. Particular attention is paid to improving the quality of academic staff by aligning research with state priorities and introducing a mentoring system.

A license for subsoil use is an extraordinary asset, and its realization within the framework of bankruptcy proceedings requires consideration of its specific properties. Adhering to certain procedural rules by the insolvency practitioner will allow them to optimize the process of selling the license and beneficially replenish the bankruptcy estate. In particular, the article emphasizes the necessity of thorough monitoring of the legal entity regarding the presence of licenses and, in the event of discovery, the requirement to sell this intangible asset only as part of the property complex (otherwise, the sale of equipment without a license is considered a violation of the property rights of creditors). Additionally, when publishing a notice about the auction, the insolvency practitioner should include significant information related to the license (requirements for the buyer's status, license duration) to fully inform potential buyers and mitigate the risk of the auction being deemed invalid. The article also proposes a preferred legal fate for the sold license — its "cleansing" from violations by the previous licensee (the bankrupt) to enhance its attractiveness for buyers and, as a result, maximize the replenishment of the bankruptcy estate.

This article is devoted to the legal issues of preventing the restriction of competition in bankruptcy bidding. The author notes that the correlation between bankruptcy and competition protection legislation is a "gray zone" of Russian bankruptcy law, which at the theoretical level very rarely refers to the mechanisms of antitrust control. As a result of the conducted research, the author comes to the opinion that antitrust control in bankruptcy bidding may be a necessary element of public control over the sale of property, if such sale may affect the state of competition in the commodity market; at the same time, antitrust control in bankruptcy bidding is carried out ad hoc. Based on the analysis of judicial practice, the author identifies the following conditions imposed by the current legislation on protection of competition on the conduct of bankruptcy auctions: (i) stage-by-stage realization of the debtor's property in bankruptcy proceedings; (ii) inadmissibility of restriction of competition in the course of auctions (inadmissibility of concerted actions, inadmissibility of creating obstacles to participation in auctions, entering false information about the subject of the auction); (iii) compliance with the procedural requirements for the realization of the debtor's property (compliance with the following requirements).

The focus of the mechanisms of legal regulation of insolvency and bankruptcy on proportional and commensurate repayment of the debtor's creditors' claims, the interdependent relations between business entities that preceded the initiation of the debtor's bankruptcy case, as well as the intention of persons associated with the debtor to influence the course of the bankruptcy case raises the question of the fairness of the legal regulation of the equality of the debtor's creditors within one queue. Subordination of creditors' claims in bankruptcy cases of legal entities is considered as a measure of liability for actions that influenced the emergence of signs of insolvency or objective bankruptcy of the debtor, however, at present, the possibility and basis for extending the same procedural mechanism that could be applied to creditors in bankruptcy cases of an individual have not been disclosed, in connection with which this article attempts to analyze such a possibility and basis for leveling the negative property effect of independent creditors.

The subject of research in this article is issues related to the powers of antimonopoly authorities to consider complaints about auctions conducted in bankruptcy proceedings. The article provides a law enforcement interpretation of the concept of mandatory bidding, analyzes the practice of the Supreme Court of the Russian Federation, including the recognition of non-valid letters from the FAS of Russia, which have regulatory properties. The author examines the relationship between the legal mechanism for canceling auctions, applied by antimonopoly authorities based on the results of complaints, and the institution of invalidation of auctions, enshrined in the norms of Article 449 of the Civil Code of the Russian Federation and applied as part of judicial control over auctions conducted in bankruptcy proceedings. The author concludes that the procedure for reviewing complaints by antimonopoly authorities, provided for in Article 18.1 of the Law on Protection of Competition, is not an independent instrument of antimonopoly control, but acts as one of the legal mechanisms for exercising the powers of the FAS, enshrined in Article 17 of the Law on Protection of Competition. Based on the law enforcement approach of the Supreme Court of the Russian Federation, the conclusion is substantiated that auctions conducted in bankruptcy proceedings are not subject to antimonopoly control in terms of the goals and objectives of the Law on Protection of Competition.

In this article the author considers models of coordination of claims against debtors from different grounds in bankruptcy. The author's attention is focused on comparing the model of joint and several joint obligations and the model of shared obligations in the context of insolvency (bankruptcy) relations. Based on the analysis of a number of foreign legal orders (France, Germany, Quebec, Louisiana, the Netherlands), as well as on the Russian legal experience, the author has proved the necessity of using the model of shared obligations in bankruptcy, because another solution risks to violate the balance of rights and legitimate interests of the participants of bankruptcy proceedings, mainly creditors on security claims. The author proposes the allocation of 3 criteria on the basis of which it is possible to determine the nature of coordination of claims in bankruptcy: (1) the criterion of fairness, (2) the criterion of judicial discretion and (3) the criterion of the substance of the obligation. The necessity to determine the model of coordination of claims against debtors from different grounds in bankruptcy is actualized in the context of an isolated assignment, when a creditor on a tort claim is not entitled to acquire unreasonable advantages from a presumably solidary connection between the obligations, just as in the case of assignment of a claim under a contract such assignment should not be recognized as invalid.

Charitable donation as a legal term is not enshrined in Russian legislation, therefore the article provides a detailed analysis of the legal nature of a charitable donation and its difference from a simple donation. When challenging charitable donations, of particular importance is proving such circumstances as the reality of the transaction and the actual transfer of property, compliance of the purpose of the donation with the criteria of charity, the presence or absence of intent to harm creditors, the amount of damage caused by the transaction, as well as the time of the transaction relative to the onset of bankruptcy. Accordingly, of particular importance in this case is the clear qualification of charitable activity and the target nature of the donation, which entail the impossibility of applying a formal approach, which is confirmed, among other things, by examples of challenging such a donation in bankruptcy cases. A comprehensive mutual verification of the parties to the transaction and proper execution of documents, including during the reporting period on the use of the donation, will help minimize the risks of recognizing the transaction as invalid.

The article discusses the problems of distinguishing creditor and corporate losses in order to determine the appropriate mechanism for exercising the right to receive damages when controlling persons are held accountable in the bankruptcy process. For this purpose, the similarities and differences between the compensation of losses caused to the debtor by controlling persons in the order of bringing to subsidiary liability under Articles 16.11 and 61.20 of the Federal Law "On Insolvency (Bankruptcy)" are considered. The grounds of responsibility and individual conditions of responsibility, in particular, guilt, are considered. Conclusions are drawn about the legal consequences of qualifying these types of losses and their impact on satisfying creditors' claims in the bankruptcy process.