Articles

The scientific article provides a historical analysis of the doctrinal approach to the legal characterization of the right of operational management. Particular attention is paid to the scientific works of Professor S. M. Korneev and his position on the right of operational management as a subjective real right. The position of Professor S. M. Korneev is presented. on the distinction between the right of ownership and the right of operational management, which became the basis for the author’s conclusion that the subject of the right of operational management manages the property of the owner for the purposes that the owner sets for the first. The article touches upon the question of the possibility of transferring the powers of the owner to the subject of the right of operational management, the answer to which was given at one time by Professor Korneev S. M., who believed that the owner, transferring this or that power, does not transfer it completely. The author also examines the current problems of applying the norms of the civil legislation of the Russian Federation on the right of operational management, which in most cases take place in relation to private institutions. The question is raised about the subsidiary liability of the founder of the institution for the debts of the latter. It is concluded that it is necessary to revise the main features of the right of operational management in the new economic conditions, which are different from those that took place in the Soviet period of Russia’s development.

The article is dedicated to the memory of MSU Professor Sergei Mikhailovich Korneev in connection with the 100th anniversary of his birth. Grateful memory allows the author to turn over the pages of his life history, emphasizing the huge contribution to the training of students working at universities in various parts of our country today. With the versatility of scientific interests and the presence of numerous works, S. M. Korneev, according to the author, had a special attitude to the doctrine of state property law created by him. Having singled out the fundamental characteristics of state property law as an economic phenomenon from the works of Professor Korneev, the author made an attempt to search for their development in the works of modern foreign civilists. And this attempt was crowned with success, because on the pages of the publication it was possible to prove that the professor’s ideas, even if not in an absolute form, are making their way, demonstrating the development in the research of modern foreign authors.

The article analyzes the concept of gross negligence in the occurrence of an insured event and its legal significance for liability insurance. The broad interpretation of gross negligence in judicial practice leads to an increase in the number of cases of refusal to pay insurance compensation. For this reason, customs representatives and other professional participants in the turnover cannot use insurance protection in situations for which such protection is provided. Using the examples of judicial practice, the author substantiates the need to analyze all elements of the insured event as a whole, and not only the behavior of the party preceding this case, when determining gross negligence. In addition, in the article the author touches upon the currently relevant issue of the admissibility of providing in the contract the possibility of releasing the insurer from the payment of compensation. The author comes to the conclusion that the rules regarding gross negligence in the occurrence of an insured event should be considered imperative, because this form of guilt does not exclude the randomness characteristic of insurance relations. According to the author, the rules of Article 959 of the Civil Code of the Russian Federation allow to protect the interests of the insurer in connection with the increased risk of an insured event due to gross negligence.

The article examines the key legal problems in connection with the formation and operation of endowment funds (endowment funds). The author takes as a basis two main theses related to the scientific heritage and personality of Professor of Moscow University Sergey Mikhailovich Korneev — the real nature of the right of operational management and the ethical significance of legal activity. The discussion in the scientific literature about the legal regime of the endowment fund property, as well as the purposes of spending the funds of these organizations, paid services of non-profit organizations has not subsided for several years. The author makes an attempt to talk about possible ways to resolve these debatable issues, based on the provisions of the current legislation. The subject of the author’s attention is endowment funds as a venture investment tool. Two ways of forming endowment funds are considered in detail — within the framework of an existing non-profit organization and by creating a specialized non-profit organization — a fund. Separately, the issue of restrictions that are introduced by the legislator for this type of non-profit organizations is considered. As an illustrative example, the article analyzes endowment funds operating in the educational sector.

The article is devoted to determining the place of consumer law in the system of Russian law and in the system of Russian legislation. Having formed in Russian civil law initially as a functional institution of civil law protection of consumer rights, it later, together with the norms of branches of public law, forms an intersectoral institute of Russian law, and under the influence of codified civil legislation, especially due to the reform of the Civil Code of the Russian Federation, as well as the improvement of legislation on consumer protection and the practice of its application, occupies the place of a functional sub-branch in the structure of modern civil law. For more than thirty years, consumer law has also been formed as a complex branch of legislation, including normative acts containing norms of various branches of Russian law. Consumer law (consumer protection legislation) is characterized by a number of features (it includes numerous regulations of various hierarchical levels and combines legal regulation contained in codified civil legislation and special acts on consumer protection). This, on the one hand, seems to be a very progressive phenomenon, since the civil law regulation of contractual relations with the participation of consumers is elevated to the level of the Civil Code of the Russian Federation, and, on the other hand, this is done in part two of the Civil Code of the Russian Federation, as well as in certain federal laws, is often inconsistent or insufficiently successful.

The article is devoted to the development of approaches to the legal qualification of the consent to harm in German doctrine and case law. The author explores the problems of the transactional theory of consent, based on the provisions of the German Civil Code and dogmatically formulated in the work of E. Zitelmann. The article describes the early case law of the German high courts on the consent to harm. The author generalizes critique of the transactional theory of consent in the doctrine and describes a departure from it in the case law of the mid‑20th century in Germany. The author dwells in detail on various non-transactional approaches to the qualification of consent presented in the works of K. Larentz, E. Schenke, O. Bucher and W. Münzberg. The article describes a modern approach to consent based on the teleological reduction of some rules on transactions. The author comes to the conclusion that the development of doctrinal views on consent to harm in Germany proceeded dialectically: from the transactional qualification of consent through non-transactional approaches to the limited application of certain rules on transactions. The author suggests to qualify consent to harm as a transaction with some reservations.

The article raises the issue of the relationship between contributory negligence and recourse between multiple tortfeasors. While using historical and comparative examples, the author concludes that it may be possible to jointly consider these concepts. The Roman law knew neither contributory negligence nor right of recourse which would allow for loss apportionment, and that is associated with punitive features of Roman actions in tort. In Germany, both concepts became widespread no earlier than after the civil law codification, and further case law applied rules on contributory negligence to recourse. In English law, contributory negligence as a partial defence and right of recourse appeared only in the course of the legislative reforms of the 20th century. Considering justifications for the similarity of these concepts offered in the doctrine, the author prefers the view that both imply several parties being outcome responsible for the loss. Upon the analysis of imputing acts of third persons as contributory negligence, it is shown that contributory negligence and right of recourse can be used interchangeably in certain contexts. The observed similarity of the two relation types, if true, by virtue of the equal treatment principle, requires that the same scale be applied to them, and implies admissibility of a parallel study.

The article analyzes the doctrinal foundations of technological connection as an institution of energy legislation, as well as its main features and problems of law enforcement. At the same time, the multidimensional nature of this institution is emphasized, in particular, including technological, economic and legal aspects. The expediency of legislative consolidation of the right of access to energy infrastructure for consumers of energy and energy resources, which must be distinguished from factual (technological) actions aimed at its implementation, is shown. The possible cases of denial of access to technological infrastructure and their consequences are analyzed, the need for regulation of such consequences for network and resource transportation organizations is shown. From the doctrinal and law enforcement positions, the question of the legal nature of the technological connection agreement is investigated, while the impossibility of its legal qualification as a sui generis contract is shown. The legal qualification of the contract for technological connection is related to the issue of the customer’s right to unilaterally refuse to execute the contract for technological connection, which is an important element of its legal status. When studying the issue of alienation of the right to the connected capacity, it is concluded that its alienation is permissible, provided that mechanisms are created to prevent abuse of the right in this area.

The article examines the problems of the legal construction of state unitary enterprises and evaluates the contribution of Professor S. M. Korneev to its justification. The article reveals the history of the formation and the essence of the construction of a state enterprise based on the right of operational management (economic management) in domestic civil law. The disadvantages of this design are noted, consisting in the splitting of property rights for the same property between two entities (the state and the enterprise). The role of S. M. Korneev in substantiating the construction of the law of operational management is shown. The dual nature of the powers of the state in relation to the state-owned enterprises created by it is revealed, consisting not only of the property rights of the owner in relation to the property assigned to the enterprise, but also of organizational and managerial powers in relation to the enterprise itself as a legal entity. The reasons for the gradual abandonment of the construction of a state unitary enterprise based on the right of economic management in the present period are analyzed, among which are the loss of the importance of state ownership as the basis of economic relations, the shortcomings of the construction of the right of economic management itself, which is essentially a variation of “split property”, the need to develop competition. At the same time, the main reason for the “dying out” of the design of unitary enterprises is its replacement by the modern theory of corporate management relations that arise between the founder-owner and the unitary legal entity created by him (state enterprise). The conclusion is made about the meaninglessness of the powers of the state as the owner of the property of a state enterprise and about the performance of the corresponding functions by the “managerial” corporate powers of the state as the sole founder of a state legal entity.

The article analyzes the scientific heritage of Professor S. M. Korneev, dedicated to the privatization of the housing stock in the Russian Federation. The continuity of the ideas of the scientist in the current doctrine of law and the consolidation of individual proposals in modern Russian legislation are shown. It is noted that S. M. Korneev was one of the first in Russian law who addressed the topical legal problems of housing stock privatization and suggested ways to resolve them. In particular, he studied the issues of protecting the rights of family members of the owner during privatization, including formulating proposals on the need to improve legislation on the participation in privatization of minors and incapacitated family members; they show how the principle of “free” and “one-off” housing privatization should work in law enforcement practice; proposals were formulated for the formalization of the legal regime of the common property of an apartment building during the privatization of residential premises in it; the problem of the legal regime of a land plot under an apartment building is raised and proposals are made for organizing the maintenance of the infrastructure of such a house through the creation of special legal entities — condominiums. This article shows that the comprehension and resolution of many of the scientific and practical problems of protecting the right of ownership to residential premises identified by S. M. Korneev, which arose even at the stage of privatization, took place in the last decades of the development of domestic legislation. It is concluded that. that individual problems of privatization remain topical even at the present stage.