Vysshaya shkola ekonomiki (Sankt-Peterburg) (Kafedra grazhdanskogo prava i processa, Professor)
Sankt-Peterburg, St. Petersburg, Russian Federation
In this article the authors analyze the concept of an investment agreement under Russian law and judicial practice for the purposes of the proper legal classification of emerging civil relatios, and demonstrate the practical application of the conclusions made by the example of the lease agreement.
legal qualification; investment contract; investment activities; civil contracts; leasing.
The objectives of the legal qualification of the contractual type
The principle of contract’s freedom provides participants with unlimited civil law, in fact, an opportunity to make a right under the law, as well as unnamed contracts (art. 421 (1–3) of the Civil Code of the Russian Federation, hereinafter — the Civil Code). However, this freedom there is a flip side, when lack of regulation and the mixing of legal and economic components of civil relations, the illusion of self-sufficiency of such a legal structure that has no legally significant individualizing the symptoms.
Legal qualification has always had a purely utilitarian purposes: to determine the legal standards to be applied directly or by analogy, select the necessary and sufficient protection and so on. In other words, a consequence of the recognition agreement unnamed is the regulation of relations arising on the basis of the analogy of the law or the law (art. 6 of the Civil Code). When it comes to mixed contract, which combines elements of well-known legal structures is necessary and sufficient for the application of the relevant parts of the rules of the relevant contracts, unless otherwise stated in the agreement of the parties or the essence of the mixed contract.
Thus, before you accept the contract of special and (or) it is not a named legal structure, you need to understand is hidden somewhere for a special name already known type of contract or some of its elements.
In this connection it is interesting to pay attention to the issue of investment contracts in the Russian legislation, illustrated by a simple example, it is not the idea that before the invention of a new model contract must first carefully examine the existing legal structures and provided that the legal possibilities.
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18. Order FAS of the North Caucasus region, dated 21.02.2005, case No. A53-12157/2003-S6-46, order of FAS of the East Siberian region, dated 31.08.2005. case No. A33-27269/04-S2-F02-4200/05-C2, order of FAS of the North Caucasus region, dated 27.08.2008, case No. A32-15975/2007-36/391, act of FAS of the North-West region, dated 30.12.2009, case No. A70-4018/2009.
19. Resolution of FAS of Moscow Region, dated 03.02.2005, No. KG-A40/39-05, case No. A40-26215/03-6-159.
