Norms Of Civil Law Research Articles

Divine Law in Canon 22 of the Code of Canon Law

Civil law norms may operate in the Church’s legal order. Canon law refers to them as a general norm expressed in canon 22 of the Code of Canon Law. This phenomenon is referred to as the canonisation of civil law. The studies concerning this topic focus on the issues of the concept of canonisation and the technique of its application or practical problems arising from the general norm. The study addresses issues concerning the use of the reference to the divine law in canon 22 and its influence on the interpretation of the norm, the influence of the canonical norm on the understanding of the divine law, and the necessity of its citation in the text of the canon. The author believes that the subject of the just canonical norm (norma iusta) should be added to the existing considerations in canonical doctrine.

MECHANISM OF CIVIL-LAW REGULATION OF RELATIONS FOR THE PROVISION OF PAID EDUCATIONAL SERVICES BY HIGHER EDUCATION INSTITUTIONS IN UKRAINE

The paper defines the specifics of the mechanism of civil-law regulation of relations for the provision of paid educational services by higher education institutions in Ukraine. At the same time, civil-law regulation is understood as a special legal influence on the behavior of participants in public relations, that are included in the subject of civil law as a branch of law. Special legal influence on the behavior of participants in relations on the provision of paid educational services by higher education institutions in Ukraine is carried out through a system of certain legal means, among which in the most general form one can distinguish: civil law norms, personalized individual acts of an autonomous nature (including contracts), personalized individual acts of a power nature (acts of application of law). However, the said civil-law influence cannot occur automatically. In this case, a certain mechanism for carrying out civil rights should be used, the functional purpose of which is to ensure the realization of the powers that make up the content of said rights, and the fulfillment of relevant subjective duties. It has been found that in order to characterize the mechanism of civil-law regulation of relations with the provision of paid educational services by higher education institutions in Ukraine, it is important to take into account the systemic and logical interrelations that exist between the norms of civil law enshrined in various normative legal acts. And this is directly confirmed in the current legislation, in particular in Art. 2 of the Law of Ukraine «On Higher Education», which directly states that «the legislation on higher education is based on the Constitution of Ukraine and consists of the laws of Ukraine «On Education», «On Scientific and Scientific-Technical Activities», this Law and other normative legal acts, international treaties of Ukraine concluded in the manner established by law». It has been substantiated that all the norms of law aimed at civil-law regulation of relations with the provision of paid educational services by higher education institutions in Ukraine should not contradict the general principles of civil legislation defined in Art. 3 of the Civil Code of Ukraine, since they are the basic construction that allows civil law to function as a system of norms of law.

The Use of Legal Regulators of Civil Relations in the Resolution of Labor Disputes

The impossibility of using legal regulators of civil relations to regulate labor conflicts is analyzed. Arguments are made against theories asserting the expediency of directly or indirectly involving the norms of civil law in the field of labor relations. Within the framework of the concept of an integrative understanding of law, a conclusion is formulated indicating that civil law is different from labor law and cannot be applied to the regulation of labor relations directly, additionally (vicariously) or using an intersectoral analogy. In this regard, a proposal is being put forward to amend the Labor Code of the Russian Federation to restrict the use of regulators of legal relations similar to labor relations.

Цифровой рубль, его внедрение: правовая природа в контексте частноправового и публично-правового регулирования

The article briefly examines the history of the emergence and development of ideas about the digital ruble in Russia and abroad, its advantages for the modern state. The legal norms that consolidate the introduction of the digital ruble into circulation are analyzed. As a result, it is concluded that two different approaches can be traced in the regulation of the digital ruble by private (civil) and public (financial) law: if the norms of civil law regulate the digital ruble as a kind of non-cash money, then the norms of public law, establishing a special procedure for its circulation, allocate the digital ruble into an independent form of money.

ЦИВІЛЬНО-ПРАВОВА ВІДПОВІДАЛЬНІСТЬ ПЕРСОНАЛУ ДЕРЖАВНОЇ КРИМІНАЛЬНО-ВИКОНАВЧОЇ СЛУЖБИ УКРАЇНИ

The article analyzes the basic concepts and grounds of civil liability, both in the general sense and for the personnel of the SCES (State Criminal and Executive Service of Ukraine). The author reveals the content and methods of compensation for damage caused by an offense during service by persons of the rank and command staff of the SCES of Ukraine. The civil liability of persons of the rank and command staff of the SCES of Ukraine is one of the types of legal liability that arises for the commission of a civil offense, which is understood as an unlawful act or omission of a person that violates the norms of civil law or the terms of a contract, and with which the contract or law links the emergence of civil liability. According to the fact that the activities of SCES of Ukraine personnel are closely related to a wide range of different rights and obligations, and therefore they are entitled to use coercive measures of physical influence, circumstances may arise in which misconduct may result in moral, property and physical harm to certain categories of citizens. Departmental normative-legal acts do not provide for any type of legal liability other than disciplinary, especially civil liability. Therefore, when committing a criminal, administrative or civil law offense, persons of the rank and command staff of the SCES of Ukraine are liable on a general basis. It is proved that compensation for damage can be made in kind or by way of monetary compensation. This means that in case of guilt is proved, the SCES of Ukraine personnel have the opportunity to choose the type of compensation of damage. The article concludes with a definition of civil liability and outlines the ways to improve the enforcement of the rights of SCES of Ukraine personnel if it is necessary to implement the principle of compensation. Key words: staff, State Criminal and Executive Service of Ukraine; persons of the rank and command staff; liability; civil liability; legal liability; damage; losses; compensation for damage.

Доктрина и семейный закон: переосмысление правового регулирования семейных отношений или «усекновение» традиции?

The reason for the author’s reflections was one of the relevant publications devoted to the problems of expanding the scope of family unions — from classical matrimony to guest marriage, changing the ownership regime in them depending on belonging to a small or large family, equalising the obligations between parents in relation to their children, as well as between parents and their adult children (in parts of material support). Such an approach, especially in its concretising provisions, seems unacceptable to us. As the main antithesis, we have chosen the postulates about the sovereignty of family law, the peculiarities of family legal relations (between spouses, parents and children) and the actualisation of the task of family law to preserve traditional family values. At the same time, the possibility of subsidiary application of the norms of civil law to family relations is not denied, however, within the strict framework of compliance of their content with the essence of family unions, which excludes the use of methods of formal equality, compensationality and excessive rationalism to them.

Regulation of civil legal relations according to the Salic truth

The presented article is devoted to the analysis of the norms of the Salic Law which regulated civil legal relations of the Frankish society. The article notes that the Salic Law is a collection that was primarily devoted to the rules of criminal law and criminal procedure. Less attention was paid to the norms of civil law. This was due to the fact that the agricultural economy was not organized on a contractual basis. However, despite this, it contained rules that regulated property rights, obligations, marriage and family law, and inheritance law. The author has established that the Salic Law does not have a clear definition of property. The Franks retained communal ownership of land for a long time, as the rural neighborhood community, the marka, continued to exist despite the formation of the state. It is noted that at the end of the sixth century, the Franks formed a «full allod» – freely alienable land property, which was allowed to be freely given, transferred and bequeathed, including to women. A movable property was owned by families or individuals and could also be freely alienated and inherited. Based on the analysis of the norms of the Salic Law, the author found that the law of obligations was the least developed. There were such types of contracts as sale and purchase, exchange, gift, and loan. For a contract to be valid, in addition to the consent of the parties, it was necessary to observe various rites. As for marriage and family law, the article states that a legal marriage could be concluded between an adult free man and an adult free woman (no minimum age was set), subject to the consent of their relatives and provided that both parties were not bound by prohibited ties of kinship. Marriage was concluded through the purchase of a wife, i.e. power over her, from the person who had previously exercised this power over her. The grounds for invalidating a marriage were also defined. The author also analyzes the order of inheritance according to the Salic Law. It is established that the heirs in descending order were: children (and their descendants); mother and father; brothers and sisters; father’s sisters; mother’s sisters; father’s relatives (up to the sixth generation). Allodial land was а family land, it could not be inherited by females.

The Рrocedural and Legal Nature of the Competition of Claims

In the article, the author examined the main features of competition of claims in order to identify their procedural and legal nature. To achieve this goal, the author mainly used the historical method, as well as methods of comparison and analysis. As a result of the study, the author formulated general conclusions that are placed in the conclusion: 1) although competition begins with the choice of a method of defense, its final formalization lies in the concept of a claim addressed to the court, which must select a competing claim, i. e., qualify an offense; 2) the common purpose of competing claims lies in the factual basis of the claim, in circumstances that are the same for the competing claims. However, the unifying feature of competition claims does not include a legal component. It is different for competing claims and stems from different norms of civil law, and therefore entails confrontation between these claims; 3) the termination of other competing claims by the award of the first claim is a key feature of the competition of the claim, indicating the procedural and legal nature of the competition.

Modern Problems of Void Transactions in the Civil Law of the Russian Federation

The article examines the legal, organizational foundations and a number of topical problems of insignificant transactions in Russian legislation with an indication of the origins of these norms in ancient Roman jurisprudence. The subject of the study is the problems caused by the recognition of transactions as insignificant in modern Russia. The object of the study is the legal provisions of civil law that carry out the legal regulation of void transactions. The purpose of the work is to form proposals that contribute to their leveling by identifying and analyzing the actual problems of the insignificance of transactions. The methods used are dialectical-materialistic, historical, a system of empirical research methods (analogy, modeling) and special methods (formal-logical, system-analytical), etc. The author examines in detail the signs of void transactions, the problems of recognizing the nullity of the transaction; the subject of which is property, with respect to the disposal of which there is an imperative prohibition, restriction. Particular attention is paid to the problems of the insignificance of the part of the transaction. The main conclusions of this study are the following: it is justified to bring into compliance with Article 12 of the Civil Code and the legal position of the Supreme Court of the Russian Federation (Resolution of the Plenum of June 23, 2015 No. 25) with respect to the method of protecting civil rights ("application of the consequences of the invalidity of an insignificant transaction"); to formulate Article 169 of the Civil Code of the Russian Federation in a new edition reflecting the concept of "public interest". A special contribution of the author to the study of the topic is the proposal to specify Article 180 of the Civil Code of the Russian Federation in terms of indicating exceptions to the general rule of invalidation of part of the transaction. The results of the article can be used in improving civil legislation, in law enforcement, in further scientific research. Conclusions: despite the improvement of the norms of civil law, the massive nature of the recognition of transactions as void indicates significant problems, as insignificant transactions in general, as well as parts of these transactions (in practical and scientific-theoretical contexts), requiring optimal solutions.

TV Broadcast Piracy Through Illegal Live Streaming Applications: Challenges and Legal Protection for Copyright Holders

The copyright infringement that is currently on the rise is the emergence of illegal TV streaming apps. The application is now very annoying to official broadcasting rights holders because the presence of such illegal streaming applications will cause losses. This paper aims to find out the form of legal protection as well as legal action for television stations that suffer losses from the piracy of such broadcasting activities.This study is a normative legal study with normative jurisprudence approach to critically analyse the criminal and civil law norms against piracy TV broadcasts through the Live Streaming application aimed at digging and revealing the protection and enforcement of the law for TV stations suffered losses as a result of such piracy.If a person is found to conduct broadcasting or distribution without the permission of the owner who violates the provisions of Article 25 paragraph (2) of the Copyright Act with the criminal punishment of Article 118 of the copyright Act. Whereas the perpetrator of illegal live streaming application that violates Article 32 paragraph (1) of the ITE Act, can be subject to criminal sanctions as referred to in Article 48 paragraph 1 of the Act. The resolution of copyright disputes can be carried out through litigation and non-litigation. It would be better for the public to choose to watch legally and subscribe through an official service despite having to pay for the safety and convenience of the user.

Preparation of the Code of Laws of the Russian Empire — the stage of systematization of domestic legislation regulating civil-law relations

The article characterizes the stage of preparation of one of the first constituent parts of the Code of Laws of the Russian Empire — a code regulating civil relations of the subjects of the Russian Empire in the XIX century — in the conditions of unstable foreign policy situation. The purpose of the research is to study the domestic experience of systematization of legal norms regulating property and personal non-property relations. Comparative-legal and historical-legal methods are applied in the study. The possibility of using the domestic experience in the development of legal technique in solving the issues of codification of Russian legislation taking into account national traditions has been proved. The position that when drawing up the plan of systematization of the Russian legislation, in particular civil-law norms, M. M. Speransky not only took into account the peculiarities of the development of national law, but also used legal precedent, fixing it in the general legal system in the form of a rule of law is substantiated.

Признание права в системе способов защиты гражданских прав: к постановке проблемы

Recognition of the right is only one of the ways to protect civil rights, which requires determining its place in the system of methods of protection. Most scientific works devoted to the recognition of law are aimed at establishing the features of this method of protection without attempting to establish a relationship with other elements of this system. The paper substantiates the need to apply a systematic approach to the analysis of the recognition of law as a way to protect civil rights. The author's position is expressed on the civil understanding of the relationship between the concepts of "protection" and "protection" as legal structures that are aimed at ensuring order and balance between subjects of public relations regulated by the norms of civil law. Through the analysis of theoretical provisions, the question of the definition of the right to protection is considered, and the attribution of the right to protection only to the jurisdictional form of protection, as established by Article 11 of the Civil Code of the Russian Federation is criticized. The author substantiates the inadmissibility of classifying methods of protection into categories of civil law, and notes the insufficiency of legislative regulation of relations in the field of recognition of law. The analysis of individual problems discussed in the legal literature on the relationship of recognition of law with other ways of protecting civil rights is presented.

CHANGING THE REGIME OF MARITAL PROPERTY IN A JOINT WILL

The article is devoted to the analysis of the possibilities that are provided to spouses when using the construction of a joint will. Special attention is paid to the issue of determining the property included in the inheritance of each of the spouses, as well as the mechanism of transfer of owner ship as a result of the inclusion of such orders in a joint will. The conducted research allows us to conclude that it is necessary to specify the norms of civil law, which would help to increase the relevance of the institution of joint wills in practice.

Место договора на строительство генерирующих объектов, функционирующих на основе возобновляемых источников энергии, в системе гражданско-правовых договоров

In this article, the author has focused on the theoretical understanding of contractual instruments used to create renewable energy source (RES) based generating facilities. The purpose of the study is to find the legal peculiarities of the obligations aimed at the construction of these facilities against the background of a system of general and special contracts highlighted in the Russian civil law and energy law. To do this, the author has correlated the theoretical approaches that have developed in Russian civil jurisprudence and in the energy law science on the application of mixed and comprehensive contractual forms. As a result, the contract for the construction of RES-based generating facilities is proposed to be considered on two levels: as a single civil law agreement and as a set of related civil law transactions. In the first case, the contract generates a set of obligations aimed at the construction of the relevant facility, which subordinates the parties not only to the norms of civil law, but also to the requirements of the Russian energy laws. In the second case, several civil law contracts, including those of a mixed or comprehensive type, are aimed to achieve a common goal, the creation of a specific generating facility. In this case, the effect of civil and energy laws can be differentiated depending on the subject matter and content of the contract.

Терминология института освобождения от ответственности в гражданском праве

The study of the Institute of exemption from liability for breach of obligations is a very relevant topic, due to various kinds of emergencies occurring in the world that affect the fulfillment of obligations by the parties. The article examines the normative concepts that serve as the name of cases when the responsibility of participants in business relations for violation of obligations does not occur. These are the concepts of "exemption from liability", "exclusion of liability" and "elimination of liability". The existence of such different terms in legislation and scientific doctrine, in relation to exemption from civil liability, causes discussion, does not contribute to a uniform understanding and practical application of civil law norms. With the help of general scientific and private scientific methods of cognition, in particular, formal legal, structural and functional, the author analyzes and compares the concepts of "exemption from liability", "exclusion of liability" and "elimination of liability" in order to establish the grounds for the application of these concepts. The article concludes that the criterion for distinguishing concepts from each other and from related legal categories is the presence or absence of elements (conditions) of the offense. The analysis of legal doctrine, legislation and judicial practice, in relation to the concepts of exemption from civil liability, showed that each of the studied terms carries its own content load. Applying different concepts of the institution of exemption from liability, it is necessary to take into account that the term can be either the result of conciliatory actions of the parties to the contract, or follow from the requirements of the norms of the Civil Code of the Russian Federation. In the field of business relations, exemption from liability comes depending on the evidence or lack of evidence of certain circumstances. In the presence of certain conditions, exemption from liability is an exceptional measure aimed at ensuring the stability of economic activity. The paper concludes that it is advisable to introduce a legal definition of the concept of "exemption from liability" into civil legislation, in view of the existing problem of distinguishing between exemption and exclusion of liability. The author defines the concept of "exemption from civil liability". In order to move to a uniform terminological unity, in the norms on exemption for violation of contractual obligations, it is suggested that the concept of "elimination of liability" should be excluded from the normative text, as duplicating the legal meaning of the concept of "exemption from liability".

SUBSTANTIVE COMPONENTS OF COPYRIGHT: ESSENCE, FEATURES, SPECIFICITY

Objective. The objective of this scholarly article is to find out the essence of copyright, namely its key concepts and basic principles, to identify the mechanisms and tools for its protection in Ukraine. Methods. Theoretical methods include analysis and synthesis of literature on the problem under study; practical methods are the selection of factual material on the basis of which conclusions about the essence of copyright. Key concepts and basic provisions, mechanisms and instruments of copyright protection in Ukraine will be formulated. Results. The 21st century is considered the beginning of a new era, which is characterized by global technologies, high informatization, mechanization, and dynamic economic growth. In this century, the main attention of society is paid to the intellectual product, which forms the basis of the concept of "intellectual property" (IP) in the economic and legal context. The collected factual material allows us to conclude that the modern development of any field of human activity (culture, industry, agro-industrial complex, health care, etc.) is impossible without proper technical and scientific support and spiritual achievements of society. These aspects are closely related and interdependent. Thus, the problem of proper use of the intellectual potential of society and the nation as a whole requires constant attention and support from the state. The existence of a modern system of legal protection of IP in Ukraine contributes to the preservation and enrichment of the technical and scientific potential of the state, the development of the national economy and international trade, as well as the attraction of foreign investments, in particular in the form of advanced technologies, which allows Ukraine to enter the world market of intellectual property as an equal in rights partner. The norms of copyright, together with provisions on related rights, form a single institution of IP law - the institution of copyright and related rights. Objectively, copyright is considered as a complex of civil law norms that regulate relations that arise during the creation and use of works of art, science and literature. Subjectively, copyright represents personal and property rights that arise in connection with the creation of works of science, literature and art by the individuals who created them, and which are subject to protection according to the law. It is important to note that copyright arises immediately from the moment of creation of the work, and this moment is recognized by the manifestation of the work on a tangible medium in such a way that it can be understood by others.

Definition of the Beginning of Life and Its Legal Significance

The article analyzes the positions of scientists, as well as the current legislation regarding the definition of the beginning of human life in the context of child conception and ensuring the right of human embryo for life. The problem has not only theoretical, but also important practical significance, as the grounds and limits of legal regulation of a number of relations depend on it. The definition of the beginning of life allows for optimal legal regulation, including the provision of legal guarantees to preserve the life of the human embryo. States independently decide on the establishment of prohibition on artificial termination of pregnancy or the time limits after which such a termination is prohibited. Attention is drawn to the development of assisted reproductive technologies, the emergence of the possibility to use cryopreserved embryos, which can be stored for a long time. There is a lack of development of this aspect in science and a small and heterogeneous judicial practice. According to the author, the use of cryopreserved embryos in resolving issues of inheritance of property, as well as after divorce, should be based on a contractual basis. Due to the fact that the legislation allows artificial termination of pregnancy up to a certain period, as well as on medical grounds, the best way to determine the legal capacity of the embryo (foetus) as conditional. Proposals are being made to improve the norms of civil law, including a proposal to call to inheritance for children born as a result of the use of the biomaterial of the testator for in vitro fertilization within six months after testator’s death and born alive after the opening of the inheritance.

Remote Methods of Conducting Transactions Using Digital Technologies

Objective: to substantiate the need to identify new contractual constructs (models) taking into account the specific relations associated with the use of remote method of contract conclusion through digital technologies and to study the possible risks for their participants.Methods: along with special legal methods, the method of critical analysis was fundamental for the research process, which allowed us to evaluate and interpret the main sources and norms of civil law in relation to distant transactions. It also allowed assessing the current state of legislation in this area in the context of developing processes of digitalization and technologization of civil-law relations.Results: a critical analysis of the current state of legal regulation of remote ways of concluding contracts is presented, their classification is given. It is concluded that the digital technologies development gives rise to new remote ways of transactions, as well as fills with new content the procedures of contract conclusion, traditional for civil law. The expediency of singling out the concept of a “distant transaction” as a legal category in order to create a special civil-law regime is substantiated, and the basic concept being that of a “distant contract”. Certain types of distant contracts are analyzed to substantiate the need for special legal regimes in cases when the distant method of contract conclusion is combined with the use of digital technologies. It poses such problems as the distribution of risks of technological failures, hacker attacks, compliance with the balance of interests of the parties taking into account information asymmetry, and the need to protect the weaker party.Scientific novelty: an attempt is made to define such concepts as a “distant contract” and a “distant transaction” and to identify their features. The expediency is substantiated of considering a distant contract as a separate legal construction (model) of the contract. Within this framework, a special legal regime should be developed and fixed, which can be extended to unilateral distant transactions. The problems of legal regulation caused by the use of information technologies are formulated, and legal constructions for their solution are proposed.Practical significance: the final conclusions and proposals can be used both in contractual practice by the participants of civil turnover and for the normative consolidation of the concept and features of “distant contract”, “distant transaction”. A special legal regime can be created, taking into account the specificity generated by the use of digital technologies.

Application of civil law norms on compensation for losses and unjust enrichment in the protection of violated rights in the field of compulsory pension insurance

The article is devoted to the problems of protecting the rights of subjects of compulsory pension insurance. The grounds and procedure for compensation by the policyholder, as well as by the insured person (pensioner) for the amounts of real damage caused to the bodies of the Social Fund of the Russian Federation, in the form of overpaid insurance coverage, are analyzed. The relevance of the provisions of Chapter 60 of the Civil Code of the Russian Federation on unjust enrichment when resolving such disputes by courts is also noted, which is permissible due to the direct instructions of the law on insurance pensions. Unlike the insurer, the right of the insured person (pensioner) to compensation for losses is not legally established. However, the provisions of Article 15, Art. 393 of the Civil Code of the Russian Federation are in demand when collecting the amounts of an unassigned (unreceived) old-age insurance pension as lost profits from the policyholder or insurer. The need to apply civil legislation is due to the specific nature of the declarative nature of the right to old-age insurance. At the same time, this places the burden on the plaintiff to prove the completeness of the grounds for implementing this measure of legal liability, which reduces the effectiveness of the protection of pension rights. The article formulates proposals for improving the legal regulation of the purpose of insurance coverage for compulsory pension insurance.

OLEG IGOREVICH KRASSOV AND PRIMACY OF LAND LAW

The article is dedicated to the memory of an outstanding employee of higher education - Doctor of Laws, Professor Oleg Igorevich Krassov, who made an invaluable contribution to the development and upholding of the independent nature of the branch of land law and legislation. O.I. Krassov substantiated the independence of land law especially through the analysis and development of the concepts of “legal regime” of lands, land plots and other objects, as well as through the concept of “land plot”. Referring to the works of O.I. Krassov, in the current article his point of view is provided on the content of these concepts, determined by the norms of land, water, forestry, urban planning, natural resources (ecological), mining, and civil legislation. Oleg Igorevich is the founder of the studies of comparative land law. He has prepared monographs on land rights in Europe, common law countries, the Middle East, Africa and Asia. Taking this into account, and as an additional substantiation to his opinion on the independent nature of the branch of land law and legislation, O.I. Krassov referred to world’s experience in the development of land law and rights to land and land plots in different countries. As a result, he advocated a unified legal regime for land plots. In his opinion, the legal regime of land plots is established not so much and not only by the norms of civil law and legislation, but by special rules established in land law, the Land Code, and land legislation.