Principles Of Civil Law Research Articles

The nature, attributes and types of civil law contractual structures in the development and realisation of innovations

The article considers the civil law treaty as a universal construction for the regulation of private law innovative relations. The treaty is a plastic construction, as it has the ability to acquire special features under the influence of special objects, subjects or content of innovative relations. However, the private-law civil basis of such a treaty is immutable.The author emphasizes that the private-legal nature of the investigated relations is based on the methods of legal regulation based on legal equality of the participants of relations, their free will and property independence. Private-law contractual regulation of innovative relations does not negate the economic-legal aspect of these relations. Both aspects exist as general and special provisions aimed at regulating innovative relations.The article states that the treaty takes into account as effectively as possible the interests of each of its parties through the possibility of including a number of its customary and incidental conditions. This quality results from the dispositive legal nature of the treaty.The treaty nowadays takes on the characteristics of a multipurpose universal construction, which: 1) allows the conclusion of any treaties that are not provided for by law but do not contradict the general principles of civil law; 2) is an act of individual creation of law, acquiring the attributes of a source of law. The treaty is the universal legal instrument that truly allows the parties to the relationship to outline in it the terms that are specifically demanded by them.

Implementation of the Rules on the Public Contract (Compulsory Contract) in the System of Legislation on the Carriage of Goods by Rail

The relative independence of railway legislation to a certain extent hinders the applicability of the principles of civil law to the carriage of cargo. This threatens the unity of the legal regulation of property relations. One of the fundamental provisions limiting the freedom of contract in the interests of the economic system as a whole is the recognition of the public nature of business contracts. The public nature of the contract (compulsory contract) of carriage should prevent the arbitrariness of the carrier’s actions and ensure fairness in the provision of transport services. To what extent does the sectoral legislation comply with the principles of civil law? Is the importance of the rules on public contract (compulsory contract) in a special legal regime not diminished? The main task is to assess the degree of compliance of the provisions of the railway transport legislation with the rules on the public contract (compulsory contract). Particular tasks are: to establish the formal inconsistency of industry norms on cargo transportation with civil legislation; to identify contradictions in the procedure for concluding and conditions for the contract of railway cargo transportation to the idea of a public contract (compulsory contract); to prove the need for changes in the design of auxiliary transport contracts from the position of publicity of the contract (compulsory contract) of carriage. The tasks set are solved on the basis of a critical understanding of the norms of civil and railway transport legislation. Methods of comparative jurisprudence were used to prepare the source material for this study. The work is primarily of the nature of a theoretical search, contractual and law enforcement practice was studied at the initial stage of data analysis in order to best understand the essence of the regulations. Based on the conducted research, it should be stated that the implementation of the rules on the public contract(compulsory contract) requires a direct indication in the railway transport legislation. The agreement on the terms and procedure for concluding a cargo transportation contract, especially the procedure for accepting an application for transportation, does not take into account, and in some cases directly contradicts the principles of civil legislation. The system of auxiliary transport contracts creates conditions for a significant restriction of the rights and interests of cargo owners. Based on theoretical conclusions, the paper formulates proposals aimed at improving the current legislation.

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

TADBIRKORLIK FAOLIYATI SUBYEKTLARINING MULK HUQUQI DAXLSIZLIGI

The article examines the main problems associated with the consolidation of the most important fundamental right in the constitution of the state – the right of private property, suggests approaches to identifying the content of the constitutional principle of inviolability of property, considers the possibility of distinguishing between subjective property rights and the corresponding sectoral (civil law) law, analyzes the features of regulation of private property rights in relation to the most important (constitutional) property objects. The author focuses on the civil law principle of inviolability of property, which arises with objective inevitability and ensures both the legality of a person’s connection with a thing and its continuous functioning. However, as the article emphasizes, for the effective implementation of this key principle, it is necessary to see and take into account the social function of property rights associated with the fair distribution of resources and the affirmation of the spiritual principles of modern civil society. Objective: to trace the patterns of civil law regulation of relations related to the forced termination of property right;. to develop scientifically-based recommendations for improving this institution in order to effectively implement the principle of inviolability of property and taking into account both the material and social aspects of its manifestation. Also practical examples related to the restriction of freedom of entrepreneurial activity and violation of the inviolability of private property, solutions to eliminate problematic situations are given.

Axiology of the Civil Law Principles in Modern Conditions

The study examines the problem of the principles of civil law in the context of the author’s conceptual standings concerning the principles and methods of civil law and their axiology, as well as in connection with modern changes of socio-economic and legal nature. The aim of the study was to establish axiological significance of the principles of civil law in modern conditions, including economic and legal transformations associated with the coronavirus pandemic and digitalization of society. The methodology of the study was based on general scientific and private scientific methods of cognition. Among them, a large role is assigned to the historical-legal and comparative-legal methods. In addition, the author analized domestic jurisprudence from the perspective of the problems posed in the paper. The author substantiates the definition of an independent category «axiology of principles of civil law» and describes its characteristic features. The author elucidated the axiology of principles in theoretical and practical aspects. It is concluded that the axiological meaning of the principles of law is constant and stable, does not depend on historical or socio-economic conditions. In a variety of situations, including the coronavirus pandemic or widespread digitalization of society, the principles of civil law retain their value and are able to solve specific theoretical and practical problems. An essential role in this case will belong to the pedagogical function of the principles. According to the author, it is the pedagogical function of law that is currently being implemented to a lesser extent than the rest functions. Students, and then future lawyers, are not always able to interpret the norms of legislation in the context of the principles of civil law and the basic meaning of legislation.

Гарантии гражданских прав: единичные способы защиты и их системная связь

Introduction: the target orientation of the domestic legal system of society is the protection of human and civil rights and freedoms. Constitutional and civil law principles express the central idea of the domestic legal regulation – the need to protect civil rights and legitimate interests of particular persons. The current legislation of the Russian Federation does not contain a legal definition of ways to protect civil rights, limiting itself only to listing specific ways to protect civil rights in Article 12 of the Civil Code of the Russian Federation. At the same time, there is no unified approach to this issue in civil law either. Purpose: to identify and establish the fundamental signs of civil rights protection; to define civil rights protection as an institution of civil law; to disclose the essence of a single way of civil rights protection; to identify the systemic signs of ways of civil rights protection and establish their systemic relationship. Methods: the methodological framework for the research is a set of general scientific and specific scientific methods of studying phenomena and processes, including: the dialectical, formal legal (dogmatic) methods, the method of comparative jurisprudence, the concrete social, comparative legal, historical and logical methods. The research is based on the method of analyzing the current Russian legislation and the law enforcement practice. The systematic approach allows establishing the integrity of the system of ways to protect civil rights, the hierarchy of its structure, as well as structuring its elements. Results: the substantiation of the protection of civil rights as the central idea of the domestic legal regulation by studying the place of the system of ways of civil protection in the civil law regulation system. This study is based on the correlation of the concepts of “protection” and “defense”, the definition of the institution of civil rights protection through the functions of civil law, the justification of the subjective right to protection, the consideration of various classifications of ways to protect civil rights and the identification of forms of protection. Conclusions: as a result of the conducted research, it is found that through the protection of civil rights, the preventive and/or protective functions of civil law are implemented; the understanding of ways to protect civil rights as certain behaviors of an interested person is revealed, and the definition of a single way to protect civil rights as one of the ways to realize the right to protection is given; it is revealed that the ways of protection civil rights in the institutional aggregate form a special integrity, that is, a system that serves to achieve a single goal; a systemic relationship of the ways to protect civil rights is established.

Scientific and theoretical rationale for the formation of the principle of cooperation and partnership in civil legal relations

One of the core elements of civil law are its principles. The system of civil law principles is subject to a constant change. Its number, as well as the number of other civil legal institutes, becomes broader and extensive. One may find scientific theoretical discussion about the formation of cooperation principle and principle of partnership in civil and other types of

Legal Personality of Business Groups in Insolvency (Bankruptcy) Arrangements

The current Russian legislation is characterized by the absence of a systematic approach to the regulation of legal arrangements involving economically interdependent property turnover subject. This is primarily due to the fact that business groups are not recognized as independent subjects of law due to the dominance of the traditional civil law principle of autonomy and independence of each legal entity. However, this approach does not meet the realities of business relations. This is especially evident in insolvency arrangements, in which «one debtor – one procedure» principle prevails. In this regard, more and more proposals arise as to recognize an enterprise group as an independent subject of insolvency (bankruptcy) cases. At the same time, it is precisely answers the question of whether an enterprise group is a legal entity that can be called the starting point for further building the entire system of legislative regulation of insolvency arrangements with their participation. The purpose of this paper is to study such a feature of an entrepreneurial group as legal personality. The paper highlights and analyzes the main doctrinal approaches to the problem of the legal personality of business associations. The author makes a conclusion about the relative legal personality of business groups, according to which business groups exist as a single subject of law only if there are features defined in the law.

Sistem Hukum dalam Penyelesaian Perkara Perceraian pada Perkawinan Campuran di Indonesia

This study aimed to analyze the legal system and the attitude of judges to resolve intermarriage divorce cases. This study used a normative juridical method with a statutory and conceptual approach. The study results showed that the judge determines the legal system in intermarriage divorce cases by evaluating the link points and collecting facts to find a relationship between the case and the possible legal system used based on the principles of international civil law. The attitude of judges in efforts to resolve mixed marriage divorce cases should not necessarily apply to Indonesian law. Judges should pay attention to foreign national parties' personal and national legal status based on Article 16 Algemeene Bepalingen van Wetgeving Voor Nederlands Indie.

Comparative analysis of the principles of Civil Procedural Law and Ecclesiastical Procedural Law in Romania

Principles represent general rules, basic concepts, which serve to underpin and prepare the legal framework for the development of a complex trial or synthesize a social and juridical experience, thereby assuring a balance and a relation between the rights and the obligations of a person and of society as a whole. The principles of civil procedural law manifest themselves in the form of basic juridical concepts. These determine the forms and methods of juridical regulation of procedures for examining and resolving litigation brought before the civil courts. The fundamental canonical principles of Orthodoxy are comprised, on the one hand, of the universal constitution of the Church, mirrored in the collection of holy canons, and on the other hand, of the Church’s long and constant practice and tradition, become canon law custom. These principles consist both of natural and, especially, supernatural revelation, in the form of the truths of faith included in the Holy Scriptures and the Holy Tradition and in the objective conditions of the natural life of society. Both the general principles of civil law and those of canon law represent the solid basis of the general system of law, a structure on which the whole juridical architecture is built, meant to assure not only correct and coherent legislation, but also a balanced and transparent justice, via a unitary and consistent judicial practice or jurisprudence.

Principles of civil law in the situation of digitalization: the problems of research methodology

Principles of civil law in the situation of digitalization: the problems of research methodology

Правовые принципы социального предпринимательства. Часть 2

This article is a continuation of the research presented in the previous issue of the journal. In the first part of the work, the basic principles of regulation of social and legal relations in the provision of social services are considered, the combination of private and public principles is analyzed, the principle of the balance of private and public interests in the system of provision of social services, general principles of constitutional and civil law, and social security law are analyzed. Possible variants of combination of principles based in public and private sectors in relations for the provision of social services are considered. This paper analyzes the legal principles of social entrepreneurship. Particular attention is paid to the principle of freedom of contract, which is presented through the prism of freedom to provide social services. The features of the manifestation of freedom in contracts of a public nature have been determined. Taking into account the involvement of both state institutions and entities belonging to all forms of ownership in the provision of services, an analysis of the application of the principles of competition, the professionalism of providers of social services is presented. Problems are identified and conclusions are drawn regarding the consideration of social services as a type of social entrepreneurship and the possibility of applying norms on entrepreneurial activity to these relations. The article presents a comparative characteristic of the fundamental provisions of constitutional, civil and social security norms. Taking into account the public nature of relations of social security law, it was concluded that the civil legal essence of social services is influenced by public norms in the process of recognizing the right to receive social services, the establishment of criteria or the absence of criteria for the gratuitous nature of the service received or for partial payment, the choice of a provider of social services among those who have the right to provide them.

Study of the Tendency of Adjudication of Obvious Unfairness System under the Dynamic System Theory

The obvious unfairness system is a key rule in Chinese Civil Law that regulates the impact of civil legal acts. Legislatively, the obvious unfairness system has passed through the provisions of the General Principles of Civil Law, the Interpretation of Civil Law, the Contract Law, the General Rules of Civil Law, and the Civil Code, and its theory of constructive conditions can be broadly separated into two parts: the theory of the unilateral essential and the theory of the bilateral essentials. In terms of justice, obvious unfairness system is divided into three tendencies of adjudication, focusing on objective conditions, subjective conditions, and both subjective and objective conditions. Based on the General Principles of the Civil Law and the Civil Code which legally define the Bilateral Essentials, in the face of new problems in judicial practice such as the difficulty of judging subjective conditions, we should utilize the dynamic system theory to reinterpret the constructive conditions of the obvious unfairness system. And based on the three common types of contracts to which the obvious unfairness system applies, we should explore the adjudication tendency of the obvious unfairness system under the dynamic system theory. The goal is to accomplish substantial fairness and justice by making its inner value orientation and outer legislative form into harmony and unity, carrying the trend of social development.

OS LIMITES DA LIBERDADE CONTRATUAL E O (DES)RESPEITO À PROTEÇÃO DO RISCO NAS APÓLICES DE SEGURO

The purpose of this article is to outline some considerations about the Judgment of the STJ of 01/24/2018, rendered in the records of Case No. 534/15.2T8VCT.G1.S1, in Portugal. The problem is related to the delimitation of liability operated by the limitation and exclusion clauses contained in the General Conditions and Special Conditions of the insurance contract policies at the time of contracting. Differentiating between the prohibited clauses and the clauses that aim to delimit the object of the contract is important because the verification of the clauses that intend to disallow or empty the guarantee of risk protection that the contract should guarantee, sounds like a measure aimed at ensure contractual balance. The study focuses on the principle of autonomy of will, but above all, on the materialization of the institute as a fundamental principle of Civil Law and on autonomy as an element of the concept of obligation. The aim is to demonstrate that the liability exclusion clauses cannot be substantiated in a lack of attention to the dynamics necessary for the proper functioning of the contractual relationship that is intended to be established, even if it is an adhesion contract, such as insurance policies.

Analysis of the Coordination Relationship between the Green Principle of Civil Law and Environmental Law in Environmental Pollution and Ecological Destruction.

Under the dual influence of environmental pollution and ecological damage, the green principles of civil law and environmental law can be better coordinated and developed. In the past, environmental pollution and ecological damage in the author's country were very serious. Hence, they designed and experimented with data extraction technology and environmental big data sets. A distribution model investigates it. Experiments show the following: (1) The system is developed from big data and can fully reflect the ecological environment of all parts of the country. Finally, it is concluded that the author's country's environmental pollution and ecological damage are very serious. (2) According to the experimental data of the figures and tables, it is concluded that the cooperation and coordination relationship between the green principles of civil law and environmental law not only has a protective effect on the ecological environment but also increases the economy of society and people. With the continuous updating and coordination of environmental laws and green prototypes, the author's country's environmental pollutants are significantly declining. The author believes that in the future, the country's ecological environment will become better, and the green principles of civil law will be more closely related to environmental law. The country's environmental pollution and people's lives are becoming more closely related. To better solve environmental problems, we have introduced the green principles of civil law and environmental law. It makes people's quality of life and the economy better. The main significance of the study is to use the method with the least damage to the environment to obtain the maximum economic benefit to achieve long-term sustainable development.

ОКРЕМІ ОСОБЛИВОСТІ ВСТАНОВЛЕННЯ ЮРИДИЧНИХ ФАКТІВ У ЦИВІЛЬНОМУ СУДОЧИНСТВІ УКРАЇНИ

The relevance of the study reflected in the article is related to the question of the peculiarities of establishing facts of legal significance (legal facts) in civil proceedings. Cases of establishing facts of legal significance today remain an essential part of civil proceedings and a significant category of cases considered in separate proceedings. The issues raised in the article are investigated by acquainting and analyzing the norms of civil law, scientific works, as well as the case law of courts of general jurisdiction in Ukraine. Attention is focused on the purpose of the procedure of establishing facts of legal significance, in particular, the possibility of establishing the latter in court is emphasized only in cases where for the person interested in this, such establishment is important. In particular, the importance of establishing legal facts when accepting an inheritance in order for the heir to obtain a certificate of the right to inheritance is analyzed. The focus is on the purpose of the procedure for establishing facts of legal significance, namely the possibility of establishing in court only in cases where for the person interested in this, such establishment is important. In particular, the importance of establishing legal facts when accepting an inheritance in order for the heir to obtain a certificate of the right to inheritance is analyzed. Legal facts are an important category of civil proceedings, and therefore remain today the subject of scientific analysis of many scientists in Ukraine. However, despite the fact that today the issues that are unexplored or understudied in the theory of facts of legal significance have decreased significantly in scope, some issues in this area remain without proper coverage in scientific papers. This determines the relevance of the issue raised by the authors and is of scientific interest in the study of establishing the facts that have legal means, and therefore require in-depth scientific analysis with further generalization and formulation of proposals. The authors investigate the significance of facts that have legal significance in terms of legal relations of discovery and acceptance of inheritance. In particular, the cases when certain elements for the discovery of heritage are unknown are investigated. The proposed proposal is proposed to identify facts that have legal significance as those provided by the Civil Procedure Code of Ukraine, and not directly defined in the legislation of Ukraine, but meet the general principles of civil law, indicating or not which rules of law link termination of certain legal consequences, in particular, the emergence of rights and obligations.

Some aspects of a comparative legal analysis of the doctrine of error at the conclusion of a contract

The article presents the result of a comparative legal analysis of the aspects of the doctrine of error at the contract conclusion. The general origin of the concept of error roots in Roman law and was further developed along with the concept of contract and its validity. It is interesting how a variety of legal theories of error developed from one common Roman beginning, each of which is in constant search for difficult compromises. The author considers in a comparative legal context the issue of the admissibility of error in the circumstances of the future. Existing exceptions to the generally accepted refusal to recognize the significance of error about future facts are reviewed. The article also analyzes the nature of the problem of assessing the significance of error. Firstly, the nature of the problem of assessing error can be related to the fundamental contradictions of the principles of contract law, which must be taken into account when considering the significance of error. The doctrine of mistake is at the intersection of basic civil law principles, namely, binding of the contractual obligations (pacta sunt servanda), on the one hand, and the principles of freedom and autonomy of will, on the other. In this regard, the doctrine is one of the most controversial doctrines of contract law and seeks a balance between the interests of the stability of the turnover and the interests of each individual participant. Secondly, the nature of the problem of assessment of error is related to the issue of the correlation between contractual theory and defects of will. Depending on the prevailing contract theory, liberal or interventional, the key tasks of law are determined, respectively: either ensuring formal equality of opportunities between the parties and guaranteeing procedural contractual fairness, or ensuring substantive contractual fairness. Depending on this, a balance is determined in the search for the significance of error. The author of the article also proposes to get acquainted with the results of a comparative legal study of the criteria for the significance of an error used in some countries of the European civil tradition and common law countries. Subjective and objective concepts of significance are analyzed, as well as combinations of their elements, which are reflected in the regulation of the considered legal orders. The study is useful for developing and improving the domestic doctrine of error.

THE PRINCIPLE OF NON-INTERFERENCE IN A PERSONAL LIFE AS A MANIFESTATION OF FREE WILL

Introduction. The article is devoted to the connection of free will with the principle of inadmissibility of arbitrary interference in the sphere of a person's private life. Civil law is based on the basic principles that underlie it. A full understanding of the legal nature of these principles will allow a deeper understanding of the paradigms and vectors on which civil law develops. At the same time, at the heart of all the principles of civil law is the legal definition that determines all its ideas. Freedom of will is recognized as such a basis. In the study, the author argues that freedom of will is the fundamental basis for the principles of civil law. The connection between the principle of inadmissibility of arbitrary interference in the sphere of personal life and freedom of will has also been proved. Summary. First of all, the connection of free will with the principle of inadmissibility of arbitrary interference in the sphere of a person's private life is recognized as unambiguous. The principle of inadmissibility of arbitrary interference in the sphere of a person's private life is multidimensional and corresponds to a large number of civil and constitutional rights. In particular, in Art. 32 of the Constitution of Ukraine stipulates that no one may be interfered with in his personal and family life, except in cases provided by the Constitution of Ukraine. Recognition of a person's private life and prohibition of arbitrary interference in it runs like a red thread through all legislation. The combination of the principle of inadmissibility of arbitrary interference in the sphere of personal life and freedom of will should be justified by the thesis that the law governs the external relations of freedom of one person to the freedom of others, and morality - the internal motivations of the person. Conclusions. freedom of will is necessarily manifested in the application of the principle of inadmissibility of arbitrary interference in the sphere of personal life. On the one hand, this principle proclaims the protection of free will applied in the private life of man. On the contrary, this principle restricts the freedom of will of other parties to the legal relationship by prohibiting arbitrary interference.

Family Law in the Context of a New Social Reality Formation: Doctrinal Principles of Law Enforcement

Improving the legal regulation of family relations involves the search and implementation of new social, organizational, legal and other measures to support the functioning of the traditional institution of the family. At the same time, family legislation does not always take into account modern trends in the life of society, which to a certain extent hinders the exercise and protection of family rights, as well as ensuring a fair balance of interests of participants in family and other relationships. In this sense, in some cases, higher courts react most effectively, taking into account even minor changes in social reality in a timely manner.The transformation of the family law in the context of changing social reality is based on two conceptual principles: firstly, the preservation of traditional family values of Russian society and, as a consequence, the reflection of such at the legislative level and in judicial practice, and secondly, legislative and law enforcement response to the latest social practices. These principles of transformation of family law complement each other, allowing us to take into account the public demands of various social groups.The main directions of the modern transformation of family law, reflected in judicial practice, include the following. First, the expansion of the sphere of family law regulation of public relations is due to the complexity of the system of social relations. Second, it is the expansion of the system of intersectoral relations of family law, caused by the complexity of the legal regulation of public relations in general. Its consequences are a shift in emphasis in ensuring a fair balance of interests of participants in family and other legal relations, the strengthening of civil law principles in the regulation of family relations, giving traditional family law institutions new optional properties and purpose, including the penetration of public legal goals in the private legal field of family life. Third, it is to ensure gender balance in family relations at the law enforcement level.

The Operation of the Principles of Civil Law in Family Legal Relations

The article explores the concept of the principle of civil law. It is determined by its essence from different legal positions. The influence of the principles on the formation of the norms of civil legislation is investigated. The features of doctrinal approaches to the concept of a legal principle are revealed. The content of codified acts regulating the norms of civil law is considered and an assessment of their content is given. Family legal relations are analyzed and the operation of the principles of civil law in them is revealed.