Moscow University Law Bulletin. 2023. 3.

The article highlights the pedagogical and educational-methodical work of professor S.M. Korneev, including his work on the systematics of the civil law course. On this basis, the main goals and objectives of university (higher) legal education in the field of civil law are revealed. With reference to the works of the classics of Russian civil law I.A. Pokrovsky, L. I. Petrazhitsky and others, devoted to the issues of methods of teaching civil law, the necessity of studying in law schools not only and not so much the content of the current legislation and the judicial practice of its application (i. e. jurisprudence), as the conceptual foundations of civil science (i. e. jurisprudence) is substantiated on this basis, students develop the skills of legal thinking, based on their understanding of the essence and principles of civil (private) law, the moral side of civil law regulation and its focus on achieving social justice. From these positions, attempts are criticized to fundamentally reorient the university training of lawyers from a general theoretical to a “practice-oriented” model that does not take into account the constant changes in modern legislation, as well as the various shortcomings and errors in both its content and the judicial practice of its application

The article discusses the evolution of views on the problem of compensation for moral harm in Russian and foreign Civil doctrine. The author analyzes the features of the position on the issue of compensation for moral harm, expressed by Professor S.M. Korneev, as well as the approaches of modern law enforcement practice in cases of compensation for moral harm. The article shows the origin of the problem of compensation for moral harm in Roman law on the example of the so-called claims for insult. The possibility of compensation for moral harm in the Middle Ages was practically denied, largely due to the prevailing doctrine of restitution. Subsequently, the legislation on compensation for non-pecuniary damage was most developed in England. Ample opportunities to compensate for non-property damage to the victim began to be provided in France and Italy. In more conservative countries — Germany and Austria, as a result, they also recognized the legality of compensation for non-pecuniary damage. In Russia, it was initially possible to observe the beginnings of this institution, in the USSR they were gone. Compensation for moral harm became possible only during the period of “perestroika”. The current Russian legislation not only recognizes compensation for non-property dam age, but also provides for a wide frameworks for its application.

Not only Russian, but also foreign modern legal science bypasses the issue of the legal nature of the state’s right to expropriate private property. Its limits and limitations are unclear, as are the guarantees of the right to private property. In most cases, the right to expropriate is perceived as a given and the prerogative of the state. However, it is quite obvious that the principle of the certainty of law presupposes the normative clarity of the regimes and types of expropriation, the conditions for its implementation in relation to other restrictions and methods for the forced termination of the right to private property. In conditions of high turbulence in international relations, the question of the correlation between the norms of international, private international and national (domestic) law in determining the mechanism and legal regime of expropriation is especially relevant. Discussions on the relationship between the legal mechanisms of expropriation and nationalization, on the definition of criteria and the very legal nature of the compensation due to a private owner during expropriation do not leave the agenda. Particularly acute is the question of the grounds and forms of international responsibility of states exercising the right to expropriation, both in violation of the general norms and principles of international law, and special in relation to expropriation in relation to the interests and rights of private owners. The attention of the author is focused on this issue in connection with the emerging negative trends in the development of lawmaking in this area, not only at the national, but also at the international level

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.

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 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 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 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 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 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 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 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 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.

Economic categories in civil and business law are quite common. However, over the years, disputes have not subsided about whether these categories should be present in law, how these categories should be reflected in the rules of law, whether they should fully reflect the economic essence of these categories, and most importantly, whether economic categories serve as the basis for making legal decisions. The article brought to the attention of readers reflects the position of the largest scientists in the field of civil law and business law on the issues under consideration: Doctor of Law, Professor Korneev S. M., Doctor of Law, Professor Gribanov V. P., Doctor of Law, Professor Bykov A. G., Academician of the Russian Academy of Sciences Laptev V. V. and other famous lawyers. Such economic categories as fixed and circulating assets, fixed and circulating assets, depreciation deductions, cost accounting, state property as an economic and legal category, enterprise, economic mechanism and others are considered. Particular attention is paid to the relationship between economics and law, the impact of economics on law and law on the economy. Attention is drawn to the close relationship between economics and law with the social factors of modern society.

In this article, the author examines the historical heritage of the works of Sergei Mikhailovich Korneev, including the development of the topic of bankruptcy of citizens that he began in the cathedral textbook. The historical path of development of the legislation on bankruptcy of citizens in modern Russia is given: from the Federal Law of 08.01.1998 N 6-FZ “On Insolvency (Bankruptcy)” to the Federal Law of the same name of 10.26.2002 N 127-FZ and, finally, the Federal Law of 06.29.2015 N 154-FZ, which actually introduced the institution of bankruptcy of citizens and the Law on extrajudicial bankruptcy of citizens (Federal Law of July 31, 2020 No. 289-FZ). The difference between consumer and commercial bankruptcy is given; reveals the features of the implementation of constitutional principles in the process of insolvency (bankruptcy) of citizens. As part of the consideration of the principle of the social state, the problem of excluding the subsistence minimum for a dependent child from the bankruptcy estate and the problem of selling the only housing of the debtor are considered. A characteristic is given of the formed judicial practice of the Constitutional Court of the Russian Federation on the issue of limiting the executive immunity of the only housing, as well as the practice of the Supreme Court of the Russian Federation, which established the principles for the provision of replacement housing.