On some issues of lien resulted from the modernization of the Russian legal system

Nowadays the domestic legal system is on a very important stage of its development: the significant novels of civil law with great difficulty make their way through the judicial reform unprecedented for our country. One of the most important novelties is the provision on the termination of lien if the mortgaged property is onerously acquired by a person who did not know or did not have to know that this property is the subject of a lien, i.e. in a situation of paid and bona fide acquisition of mortgaged property. Moreover, within the meaning of the provision to ascertain the fact of lien termination, it does not matter whether or not the lien-holder has expressed his/her consent to the alienation of the mortgaged property by the pledgor. Having analyzed the historical background of the civil law theory and having compared the approaches of the high courts to the resolution of relevant collateral disputes, the author comes to a conclusion that at present, despite the integration of these courts, there is a controversial situation: if the arbitration court must dismiss the bill for foreclosure on paid and bona fide acquisition of movable property, which became the subject of a lien before July 1, 2014, the court of general jurisdiction must satisfy it. The way out of this situation is in the rapid adoption of the resolution of the Plenum of the Supreme Court of the Russian Federation, which will become mandatory for the application of both branches of the judiciary. At the same time there is an alternative, from Section 2, Article 173.1 of the RF Civil Code. It takes place exclusively in the case of mala fides of the purchaser of the mortgaged property. If the pledgor makes a gratuitous alienation of the mortgaged property to a bona fide purchaser (a person who neither knew or had to know that the property is subject of a lien, and neither knew or had to know about the lack of the required lien-holder's consent to the transaction), the lien-holder, unless otherwise specified by the contract, has the right only to demand prior execution of the secured obligation and, if the demand is not satisfied, foreclosure on the mortgaged property. The conclusions allow stating that the mortgage rules shall apply as at present.

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