The last frontier of defense

Kommersant publishes an author’s column by Nikita Filippov, head of MCBA “Bureau of Lawyers “De jure”, dedicated to new trends in the legal consulting market. (At the end of 2019, “De jure” became the leader in the list of the largest Russian consulting groups and companies in this area of professional services). 

According to Filippov, today the main requests to lawyers are related to the prompt explanation of legislative innovations and the use of provisions on force majeure. “After the end of the six-month moratorium, an increase in bankruptcy cases and related separate disputes is expected. For confident companies, this means the risk of litigation to recover debts and the risk of contesting transactions and payments,” – the lawyer explains.  Another trend is the growth of cases on bringing the company management to subsidiary liability.

“The share of legal consulting in the total mass of the services market is not very large.  But this is the last frontier to protect violated rights and interests.  In most cases, lawyers come into play when representatives of other areas are no longer able to correct the situation,” – Filippov sums up.

Read more – https://www.kommersant.ru/doc/4372547

Rash decisions are expensive

The magazine “Legal guarantee” publishes an article by Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, about the risks of criminal prosecution due to decisions taken during self-isolation.  “Erich Maria Remarque said, everything that can be settled with money is cheap. The loss of money is not as bad as the loss of freedom. Rash decisions can be very costly for company Leaders,” – the lawyer warns.

An attempt to save money on employees’ salaries or on taxes can turn into a criminal article. For example, depending on the leader’s actions, the amount and types of unpaid taxes, it can be up to 7 years in prison (Articles 199, 199.1, 199.2, 199.4 of the Criminal Code of the Russian Federation). In addition, you need to take into account the risks associated with challenging the legality of obtaining a loan and bankruptcy. “Our practice shows that charges of misconduct in bankruptcy and intentional bankruptcy very often go “hand in hand” with cases of subsidiary liability. When reaching the threshold of 2.25 million rubles, almost all acts that entail civil liability are also subject to qualification under the Articles of the Criminal Code,” – Filippov shares his experience. To avoid this, the lawyer advises to be as objective as possible in assessing the situation, even more carefully than before, check contractors and perform the order of payments set out in Article 855 of the Civil Code of the Russian Federation.

Read more – https://sibadvokat.ru/magazine/biznes-posle-koronavirusa-ugolovnye-posledstviya

Debt restructuring of bankrupts and points for managers

Portal Rusbankrot.ru publishes an article by Ksenia Stikhina, lawyer of MCBA “Bureau of Lawyers “De jure”, about upcoming changes to the bankruptcy law.

“Under the influence of the pandemic, we have entered an era of changes that have pierced all sectors and spheres of life,”- the lawyer states. – Of course, all this leads to a change in legal regulation.  One of the first issues related to the modernization of law posed by the new Prime Minister was the change in bankruptcy law – about which the Government of the Russian Federation was instructed by him on March 18, 2020.

The main idea of ​​the draft amendments to the bankruptcy law developed by the Ministry of Economic Development and Trade is the replacement of the preparatory part of the bankruptcy, called the observation and practically lifeless procedures. The proposed innovations, according to Stikhina, firstly, allow to determine the arbitration manager who capable of conducting the proposed debtor procedure with a certain amount of assets, and secondly, the random choice of the manager can ensure its independence and objectivity. “Thus, debt restructuring for legal entities is designed to reduce the duration of bankruptcy proceedings, which are often unreasonably delayed, and the point system of arbitration managers and the new procedure for their approval should ensure the independence and objectivity of arbitration managers,”  – the lawyer believes.

Read more – https://rusbankrot.ru/people/izmeneniya-zakona-o-bankrotstve-restrukturizatsiya-dolgov-yurlits-i-ballnaya-sistema-arbitrazhnykh-u/?fbclid=IwAR3ZYEFy07c4_yx-JgLZYAVP-3nI72vQw_Cu9OvQE1cCv4mzM4JDqQBPssk

Post-covid reality: what awaits the litigators

The portal Pravo.ru reports that the Economic Collegium of the Supreme Court of the Russian Federation held the first online process on May 13.  During this time, more than 1326 video meetings were held in arbitration courts and more than 3777 have already been appointed.  “Obviously, there is interest in online justice and it will grow even after all restrictions are removed,” – the publication said. At the same time, Article 155.1 of the Civil Procedure Code and Article 153.1 of the APC (Arbitration Procedure Code) of the Russian Federation allow conducting hearings by video conference only from another court, which establishes the identity and powers of the participants in the process. “Now the practice has already taken another way. It is necessary to prepare a bill that meets its needs, takes into account the basic principles of the process and ensures the possibility of implementing the rights of participants,” – the publication states. And it reminds that one such bill was proposed by senators Klishas and Russkikh together with MCBA “Bureau of Lawyers “De jure”, while the other is being prepared by the Government.

Read more – https://pravo.ru/story/221810/?desc_tv_4=

Legalize video courts!

Portal Rspectr.com publishes an article by Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, in which he discusses the advantages, risks, and necessity of legislative regulation of the emerging practice of video review of cases.

On March 18, the Supreme Court of the Russian Federation recommended that courts suspend proceedings in cases that do not require urgent consideration, as well as with the availability of technical capabilities to use video conferencing systems (VCS).  And already at the end of March, proceedings began using the WhatsApp messenger, Skype, and so on.  As a result, by the end of May, more than 5.8 thousand court sessions were held in arbitration courts through the VCS.

“Online justice is, first of all, the expansion of options for people’s participation in judicial protection of their rights,”- Filippov is convinced.  “Now, for many citizens with disabilities, visiting the court is very difficult, and video vessels for them are a good way to directly express their position and thereby more fully realize their rights.” In addition, video courts allow to reduce costs (lawyers do not need to reimburse travel expenses), and competition will also grow (to participate in the process, for example, in Moscow, you can now invite a lawyer from Khabarovsk, and vice versa).

On the other hand, it is not clear whether it is possible to reliably establish the identity of the participant in the process, if he is identified through ESIA.  Many issues around video vessels must be resolved at the law level.  That is why of MCBA “Bureau of Lawyers “De jure”, together with members of the Federation Council Andrei Klishas and Alexey Russkikh, has developed an appropriate package of bills.  One way or another, the process of legalizing video vessels has already begun, Filippov concludes.

Read more – https://rspectr.com/articles/629/nuzhno-li-legalizovat-videosudy

Will online sessions lead to new requirements?

Portal Pravo.ru reminds that since ancient times, the clothes in which judges, lawyers, and even the accused appeared had a symbolic meaning. And it wonders if the requirements for clothing can change in remote processes.

In Russian courts, there is no special single regulation that would regulate the dress code for participants in the trial.  Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, believes that there is no reason “to pass any special law on this topic either.”  And one must be guided by common sense and a sense of proportion.  For example, the dark suit of a lawyer is “a sign of belonging to the profession, to the world of jurisprudence”. As well as a reflection of the attitude to work, to the case under consideration, to the client and the court. “Hence is the understanding that it is necessary to come to the process in a business suit.  Variegated outfits, clumsy colors or overly explicit outfits distract from the essence of the matter,”- Filippov said.  In the case of online meetings, the main thing is to create a business atmosphere. Therefore, almost the same requirements will apply to the appearance of participants in online meetings as before.  “The only relief that may be in the online process, it seems to me, will be associated with wearing of protective masks and gloves.  Unfortunately, we understand that coronavirus is for a long time,” – Head of MCBA “Bureau of Lawyers “De jure” states.

Read more – https://pravo.ru/story/221999/?desc_autoload=

Did you make a mistake?

Pravo.ru analyzes high-profile cases that the Supreme Court should resolve in the near future.  One of them is a dispute over the property of the former military unit in Crimea privatized in 2007.  The Russian Ministry of Defense filed a lawsuit against the new owner and won in the courts of lower instances. The appeal and the district court upheld the Ministry’s vindication claim, because  purchase and sale agreement of 2007 year was not certified by a notary, therefore, it is not concluded. At the same time, the courts ignored other evidence in the case. For example, the decision of the Economic Court of Crimea, which in 2008 recognized the contract as valid.

Yulia Meshkova, lawyer of MCBA “Bureau of Lawyers “De jure”, believes that the courts mistakenly did not apply the three-year statute of limitations, which should have been counted from the date of conclusion of the purchase and sale agreement in 2007. Herewith, when the owner changes the statute of limitations does not start flowing again. In addition, the courts committed other procedural violations, the expert notes: under the agreement of 2018, the ownership of the disputed object passed from the Defendant to another person who was not involved in the case.

Read more – https://pravo.ru/story/222280/?desc_chrono_1_2=

Punctures of the investigation

Also, Pravo.ru analyzes the most common mistakes made by investigators in the investigation of tax cases.

As a rule, inspections cover the last 3-5 years of the company’s activity, which does not create prerequisites to release from liability for the expiration of the statute of limitations. However, a poorly conducted investigation can sometimes lead to the termination of the case due to the statute of limitations, Ivan Spiridonov from of MCBA “Bureau of Lawyers “De jure” reminds. This is possible if the confirmed amount of damage during the investigation is less than 45 million rubles, given that the procedural and all necessary tax checks last a very long time, Spiridonov explains.

Read more – https://pravo.ru/story/221058/

Don’t leave the company!

The magazine “Corporate lawyer” publishes the author’s article of Evgeny Mikhailov , lawyer of MCBA “Bureau of Lawyers “De jure”, “The Story of why you should not leave the LLC, or how the scheme of honest withdrawal of money in bankruptcy works”. It includes the analysis of a new enrichment scheme at the expense of businessmen who forget to liquidate a company that has become unnecessary in time.

According to Mikhailov, in the last couple of years, situations have become typical when a creditor who has a bad debt to a “dead” company “sues” it and begins bankruptcy proceedings. Since the debtor actually exists only on paper, this stage is easy. And then, with the help of a bankruptcy Trustee, new ones are “wound up” on the initial small debt. It can be fines and penalties or other obligations.  The task is to inflate debt as much as possible.  At the final stage, through the mechanism of subsidiary liability, the debt is assigned to any of the persons involved in the management of the debtor company.

“There are two main guidelines on how to reduce the amount of debts that are going to be imposed on a person who is being brought to subsidiary liability”, – lawyer of “De Jure” notes.    – The first is to appeal against the arbitration court’s rulings that included overstated claims in the register of creditors’ claims. The second is to file a complaint about the failure of the arbitration Manager, who for some reason forgot, for example, to declare the excess of the penalty, or to skip the Statute of limitations.”

Read more – https://e.korpurist.ru/817206

Golden square meters

Experts of MCBA “Bureau of Lawyers “De jure” answered readers’ questions at the request of the portal Domofond.ru.

How to divide the housing purchased on matkapital in a civilized way after the divorce? Which way is easier and more reliable to go if one spouse wants to remain the sole owner in the “old” apartment, and his parents are ready to give one of their apartments to their daughter-in-law and granddaughters?

According to Yulia Meshkova, lawyer of MCBA “Bureau of Lawyers “De jure”, since the apartment was purchased using the maternity capital, it should be issued into the common property of spouses and children with the determination of the size of the shares under the agreement.”Regarding the procedure for resolving property issues with your spouse, we believe the following option is the most optimal: making a donation agreement for an apartment planned for transfer to your spouse, between your parents and you.

Next – the conclusion of an agreement on the exchange of real estate between you and your spouse, in which it is also possible to provide for the allocation of shares of minor children in exchange for shares in a shared apartment (subject to the consent of the guardianship and trusteeship authorities).  In this case, the moment of conclusion of the exchange agreement (before or after the dissolution of the marriage) will not matter,” – Meshkova explains.

Read more – https://www.domofond.ru/statya/kak_tsivilizovanno_podelit_zhile_s_suprugoy_posle_razvoda_/100922

Will the gift of an apartment between a stepson and a stepmother be considered a transaction between relatives?

“For the purpose of exemption from taxation, most likely not,”- said Alexey Te, lawyer of MCBA “Bureau of Lawyers “De jure”.  According to him, the Family Code establishes a closed list of family members and close relatives who are eligible for benefits: spouses, parents and children, including adoptive parents and adopted children, grandfather, grandmother and grandchildren, full and half-parent (having a common father or mother) brothers and sisters. “You can try to recognize the stepson and stepmother as family members in court and claim tax exemption on the basis of a court act. This method, in particular, was used in a specific case (see the appeal ruling of the Belgorod Regional Court of July 9, 2013 in case No. 33-2150). In this case, such issues as the fact of cohabitation, mutual care and respect, trusting relationships, maintaining a common budget will be investigated in court,” – Te advises.

Read more – https://www.domofond.ru/statya/budet_li_schitatsya_darstvennaya_na_kvartiru_sdelkoy_mezhdu_rodstvennikami/100916

Can the husband’s children qualify for an apartment purchased in a marriage if a prenuptial agreement has been signed?

Lawyer of “De jure” Yakov Bulut is sure that if there is a prenuptial agreement, “the probability that your spouse’s children will be able to claim a share in your apartment after his death is very small.”

“Taking into account the circumstances stated by you, the prenuptial agreement was concluded before the purchase of the apartment, so it is necessary that its effect extends to the property purchased after its conclusion,” – the lawyer recommends. “For 100% insurance of your interests, you can conclude an additional agreement to the prenuptial agreement, which determines that your apartment is only your property.  The spouse may also issue a will in which it should be indicated that only the property belonging to him at the time of his death is transferred to his children. ”

Read more – https://www.domofond.ru/statya/mogut_li_deti_muzha_pretendovat_na_moyu_kvartiru/100908

How to arrange guest rooms above the garage to rent them daily?

Denis Amelchenko, lawyer of MCBA “Bureau of Lawyers “De jure”, explains that in accordance with paragraph 2 of Article 23 of the Federal Law of March 30, 1999 Number 52-FL (as amended on July 13, 2015) “On the Sanitary and Epidemiological Well-Being of the Population”, provision of non-residential premises to citizens for permanent or temporary residence is not allowed. So the garage will have to be converted into a living space. In accordance with Article 288 of the Housing Code of the Russian Federation, residential premises can be rented by their owners for living on the basis of a contract. “And remember: before you start making a profit by renting out rooms, you must take into account that such activities will be considered entrepreneurial. Therefore, it should be issued in an appropriate manner and not violate the law, including tax,” the expert warns.

Read more – https://www.domofond.ru/statya/kak_oformit_gostevye_komnaty_chtoby_sdavat_ih_posutochno/100907

Blockchain on the guard of intellectual property

The online magazine Maff publishes an article by Viktor Probichev, Head of Legal Tech Department of MCBA “Bureau of Lawyers “De jure”, “How are blockchain technology and intellectual property objects connected”.

According to the author, “blockchain in the modern world of digital realities plays a role that is quickly becoming increasingly important in almost all areas of public relations.”  These technologies occupy a special place in the field of guard, protection and use of intellectual property.  On the basis of the blockchain, for example, a new musical ecosystem is emerging. New start-ups appear that provide the author with complete control over the use of his works by others.  “Today, issues of protecting intellectual property with the help of blockchain are solved to a greater extent by technical means of protection and IT companies than by lawyers.  This is due to the lack of qualified lawyers both in the field of intellectual property and in the field of technologies under consideration,”- Probichev believes.

Read more– https://maff.io/blockchain_and_copyright/

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