Агапов А.Б. Квалификация корпоративной вины

Аннотация: The article offers to readers addresses an influence of powers of a trust manager on the scope of trustor’s property right. A stand on the way how trust management affects the trustor’s relationship with third parties is made up. The practice of interpreting and applying trust management laws being established is analyzed looking through a medium of determining priorities in resolving the conflict between powers of owner and manager. Considering the need for a balanced system of limits and encumbrances of civil rights, a conclusion disproving the characterization of trust management as limitation of trustor’s rights is offered. An existence of a fundamental legal right of owner to possess, use and dispose of a thing transferred to a trust is acknowledged. In this case, in connection with somewhat equivocation of said conclusion and availability of judicial acts based on the contrary notions, an opinion about necessity to expressly permit the trustor to exercise his owner’s powers in respect of his estate by the law is offered. The fact itself of the trustor disposing of the thing transferred to a trust is offered to be qualified as a repudiation of the trust agreement permitted by the law, even if such repudiation is made with violation of obligation to notify the manager of agreement termination in due time. The author offers a method of proving the proprietary and obligatory nature of the trust management based on the results of a check of trust manager’s faculty for property right encumbrance regarding property trust management. A conclusion on absence of a crucial feature of proprietary encumbrance – following after the thing – in the structure of trust management is made. Moreover, the proposal to entrench this feature in the trust manager’s powers is not recognized. Proposals to alter provisions of the effective laws on state registration of rights to immovable property which groundlessly define trust management as a limitation and encumbrance of a property right are made. An idea of expediency of a state registration of transfer of immovable property to a trust not as a limitation proprietary right, limitation or encumbrance of property right, but as quasilimitations and quasiencumbrances is suggested.

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Abstract: The article offers to readers addresses an influence of powers of a trust manager on the scope of trustor’s property right. A stand on the way how trust management affects the trustor’s relationship with third parties is made up. The practice of interpreting and applying trust management laws being established is analyzed looking through a medium of determining priorities in resolving the conflict between powers of owner and manager. Considering the need for a balanced system of limits and encumbrances of civil rights, a conclusion disproving the characterization of trust management as limitation of trustor’s rights is offered. An existence of a fundamental legal right of owner to possess, use and dispose of a thing transferred to a trust is acknowledged. In this case, in connection with somewhat equivocation of said conclusion and availability of judicial acts based on the contrary notions, an opinion about necessity to expressly permit the trustor to exercise his owner’s powers in respect of his estate by the law is offered. The fact itself of the trustor disposing of the thing transferred to a trust is offered to be qualified as a repudiation of the trust agreement permitted by the law, even if such repudiation is made with violation of obligation to notify the manager of agreement termination in due time. The author offers a method of proving the proprietary and obligatory nature of the trust management based on the results of a check of trust manager’s faculty for property right encumbrance regarding property trust management. A conclusion on absence of a crucial feature of proprietary encumbrance – following after the thing – in the structure of trust management is made. Moreover, the proposal to entrench this feature in the trust manager’s powers is not recognized. Proposals to alter provisions of the effective laws on state registration of rights to immovable property which groundlessly define trust management as a limitation and encumbrance of a property right are made. An idea of expediency of a state registration of transfer of immovable property to a trust not as a limitation proprietary right, limitation or encumbrance of property right, but as quasilimitations and quasiencumbrances is suggested.

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