Real legal relations with a "foreign element": legislative regulation and legal positions of the Supreme Court of the Russian Federation

The subject of consideration in this article are the legislative provisions and legal positions of the Supreme Court of the Russian Federation in the field of legal regulation of property relations with a "foreign element". The first stage of the study is the analysis of the conflict of laws rules contained in the Civil Code and determining the choice of applicable law to property relations with a "foreign element". The author proceeds from the fundamental thesis about the predestination in the end of the regulation of international property relations by the pecu- liarities of the substantive regulation of such relations. In this regard, it is argued that the conflict-of-laws regulation of international property relations in Russian law cannot be considered optimal, since there is precisely insufficient consideration of the specifics of substantive legal regulation. The article analyzes the content of the norms of Articles 1205 - 1207 of the Civil Code. The problems associated with the application of these norms are caused by the definition of the "real statute" and those issues that are included in the scope of the real statute. As a result of the analysis, proposals are formulated to improve the legal regulation of property relations with a "foreign element" in the Civil Code of the Russian Federation. Further, the guiding explanations of the Plenum of the Supreme Court of the Russian Federation on relevant issues are analyzed. The legal positions of the Supreme Court affect several aspects of conflict of laws regulation. In this regard, the article pays attention to the problem of choosing the law to be applied to non-documentary securities. The extension of the proprietary statute to non-documentary securities is questioned. At the same time, a legislative norm is proposed that allows for the election of a competent law and order in this case. The legal position regarding the election of the right to a collateral legal relationship with a "foreign element" is also analyzed. As a result, it is concluded that in the relevant explanations on the application of conflict of laws rules, there is insufficient consideration of the specifics of substantive legal regulation and some underestimation of the systematic approach in the interpretation of legal norms. The implementation of the proposals made would contribute to greater efficiency and harmonization of conflict-of-laws regulation of international property relations, since these proposals embody the idea of conditionality of conflict-of-laws rules by the nature of civil material legal relations and the peculiarities of civil law regulation.

Keywords

Authors

References