Foreign Doctrine Research Articles

The difference of the lease agreement from other similar contractual relationships

In the last period of time, especially with the development of the real estate field, the rental of housing has experienced an unprecedented evolution, both nationally and globally, as evidenced by the accelerated growth of the categories of services in question. Consequently, there is also an increase in the state’s interest in taxing those sources of income, acquired by both individuals and legal entities. We deduct this reality from the fact of emphasizing the requirements for declaring leases to the state tax body in order to tax the income obtained from that activity, given that, for many citizens of the Republic of Moldova, the provision of rental services become a profitable occupation. Currently, the modernization of the Civil Code of the Republic of Moldova brings with it some clarifications in terms of location, which has contributed significantly to improving the legal framework in the field, similar to the European one, quite necessary in an integrationist context. In particular, the study carried out in the content of this paper may incite long and complex debates on the part of domestic and foreign doctrine, given that we find different regulations in the legislation of other states, some much more complex, others quite incomplete, but at the same time, full of essence and topicality. Obviously, the research of the subject does not stop here, intending to develop it in other works, from the category of didactic, monographic, scientific articles in journals that would ensure the continuity of research and identification of new solutions in the event of further challenges in delimiting the lease other similar reports

The principle of VAT neutrality: content and relationship with tax legislation

The subject. The principle of VAT neutrality is actual for Russia as VAT is one of the taxes levied in Russia. The principle of VAT neutrality has been upheld by the Russian Supreme Court. Therefore, the subject of the research is the definition of this principle as well as the problems of its relationship with the Russian tax law.Purpose of the study. The article considers the principle of value added tax neutrality as an independent principle of tax law, analyzes its content and regulatory role as independent means of legal regulation. Dealing with foreign doctrine regarding to the referred principle, the article shows the problems of its implementation in Russia and includes suggestions re its harmonization with the Russian tax legislation.Methodology. The author uses the formally legal interpretation of the legal provisions, comparative analysis of Russian and European literature as regards the nature and neutrality principle of VAT as well as the systemic analysis.The main results. The author has formulated the definition of the principle of VAT neutrality and determined the elements of the referred principle. Each element of the principle has been described. The author divided the content of the referred principle on property, legal, economic and competitive elements. However, all these elements should be considered systemically as VAT is supposed to be neutral for businesses in terms of each sphere of their business activity. The author concluded that VAT is the tax on consumption and the burden of this tax should be transferred on final consumers. Taxable persons are only public agents to collect VAT after taxable transactions with final consumers. Therefore, there should be no obstacles as regards the right to deduct input VAT as well as any rules distinguishing the tax burden for similar taxable transactions. Also, due to the deduction mechanism the burden of VAT in the same price of goods (services, work) should be equal and does not depend on the quantity of transactions to be previous to the sale to any final consumer. As regards the Russian tax legislation, the author identified the rules infringing the principle of VAT neutrality. Thus, the author has concluded that the Russian tax rules establishing strict documentary requirements to the right to deduct input VAT and limiting this right for foreign businesses contradict the principle of VAT neutrality. Also, the rules of the Russian Tax Code which stipulate the exemptions for the transactions between taxable persons and the different tax rates for the similar transactions as well as exclude the persons of the special tax schemes from VAT regime are not in line with referred principle.Conclusions. According to the results of the study, the author has formulated the suggestions regarding to the amendments to the tax legislation in order to correct the revealed mismatches between the provisions of the chapter 21 of the Russian Tax Code and the principle of VAT neutrality. It is proposed to reduce the requirements to the right to deduct as well as exclude the current limitation of this right for foreign businesses, the different tax rates for the similar transactions and the exemptions for the transactions between taxable persons. In addition, the author has suggested to entitle the persons of the special tax schemes to refuse their excluding from VAT regime.

Efficiency contracts in the new Brazilian Procurement Law: conceptual framework and international experience

Objective: To analyze efficiency contracts, a contractual modality whose use was expanded by Law no. 14,133/2021, in its conceptual perspective and based on international experiences.
 Methodology: Qualitative post-positivist research, exploratory-descriptive, carried out from the analysis of Brazilian, French and American legislative texts and dogmatic bibliographic review of national and foreign doctrine that comment on similar legal figures in other legal systems.
 Originality or value: The work is original because it presents a proposal for a conceptual understanding of an institute that has been little applied in the Brazilian legal experience, whose possibility of use was expanded by the new public procurement law (Law no. 14,133/2021), and based on similar figures widely applied in countries like the United States and France.
 Conclusions: Efficiency contracts are an important tool used by public authorities internationally and its provision in the new public procurement law can help to mitigate the resistance of control authorities with their use in Brazil.

Patentability of Solutions in the Field of Bioprint Technologies: A Comparative Law Aspect

The paper is devoted to the issues of advisability of introducing amendments to the civil legislation in connection with the development of additive technologies or the possibility of effective application of the existing rules of law to the regulation of «innovative» civil relations.Digitization of objects of the material world associated with the creation of their digital prototypes constitutes a revolutionary element of 3D printing technology. A three-dimensional digital model (CAD file) can be easily modified, distributed and embodied in the form of a physical object by printing it on a 3D printer. This gives rise to new risks of infringement of exclusive rights to objects of patent law. In a foreign doctrine, a discussion has started regarding the possibility of qualifying the creation and circulation of digital models of patented products (inventions) as a direct infringement or indirect infringement of exclusive rights.The paper concluded that Russian patent law was not ready for the challenge generated by the development of 3D printing technology, since it was not aware of the concept of indirect infringement of the exclusive right. In Russian law enforcement practice, the concept of direct patent infringement is interpreted in a restrictive manner.The question of admissibility of patenting technical solutions in the field of bioprinting has been studied. It is concluded that in Russian law there are no fundamental obstacles to patenting technical solutions in the field of bioprinting technologies. Russian legislation provides for the possibility of patenting «natural products», as well as methods and means of treatment, which distinguishes the Russian approach from the American or European one. If the risk of genetic instability of pluripotent cells is leveled, the technology for creating bioprinted human organs will comply with the requirements of civil law. In particular, it will meet the requirements for the compliance of patented technical solutions with the public interest, the principles of humanity and morality.

Distancing From Accountability? Governments’ Use of Soft Law in the COVID-19 Pandemic

This article analyses how governments across Australia and the world have employed ‘soft law’ in their responses to the COVID-19 pandemic. Rather than simply directing the public to the text of voluminous, complex and everchanging public health orders, executive officials have utilised a variety of non-legal soft law instruments to inform the community of their rights and obligations. These instruments are beneficial — especially in a public health crisis — as they are comprehensible, adaptable and effective. However, their non-legal nature also presents significant accountability issues which challenge the Australian conception of the separation of powers. Soft law exists independent of any parliamentary authorisation or oversight. Subsequently, those affected by soft law lack almost any ability to challenge its use in court. To remedy such issues, this article recommends a greater role for administrative complaint mechanisms (such as Ombudsman recommendations and discretionary payment schemes) in combatting abuses of soft law. It further suggests that the limited adoption of two foreign doctrines — substantive legitimate expectations and epistemic deference — into Australian judicial review could aid in addressing this dilemma.

Бесплатная юридическая помощь в Российской Федерации и некоторых постсоветских странах

Introduction. The system of free legal aid is a mechanism that ensures the direct functioning of a number of constitutional rights and freedoms, such as the right to receive qualified legal assistance, the right to a fair trial, adversarial proceedings and other rights guaranteed to citizens of the Russian Federation by the Constitution of our country. In domestic and foreign doctrine, as well as in the field of rule-making and practical law enforcement, stable theories and positions have developed regarding the basic principles and procedures for the functioning of free legal aid systems. However, to this day there are a large number of unresolved conflict issues related both to the normative settlement of the legal institution in question, and to its practical functioning. Objective. The purpose of this work is to characterize the systems of free legal aid in the Russian Federation and in such foreign countries of the post-Soviet space as the Republic of Belarus, Ukraine and the Kyrgyz Republic, to determine the advantages and disadvantages of the respective systems, as well as to formulate recommendations for creating a more effective model for the provision of free legal aid in the specified territory. Methodology. The paper provides a comparative legal analysis of some aspects of the functioning of free legal aid systems in the Russian Federation, the Kyrgyz Republic, the Republic of Belarus, and Ukraine. Using the formal legal method of research, attention is drawn to the formulation of the constitutional right to receive free legal assistance in the relevant states, the types of legal assistance provided, the subjects of its provision are classified, and the procedure for financing their work is considered. Results. As a result of the research, some issues of the functioning of free legal aid systems in the countries of the post-Soviet space were studied. It was concluded that it is necessary for the Russian legislation to accept some of the most effective legal provisions governing the systems of free legal aid in the countries considered. Conclusion. The studies conducted in this article make it possible to compare certain provisions governing the functioning of free legal aid systems in the countries of the post-Soviet space, thereby providing an opportunity to create the most efficient model of this legal institution, and, as a result, increase the efficiency of the implementation of certain constitutional rights and freedom.

Problems of protecting the rights of taxpayers in the framework of examining the materials of a tax audit and making a decision by a tax authority

The subject of the study is the Russian Federation legislation, case law, as well as domestic and foreign doctrine, which allow us to establish the main problems of determining the concept of procedural norms’ materiality of breach when examining the materials of a tax audit and making a decision by a tax authority. The object of the study is public relations on the examination of the materials of the tax audit and the decision of the tax authority on the audit results. The author examines in detail the legal aspects related to the procedural issues of notifying the taxpayer related to the place and time of tax authority’s examination of the audit materials, compliance of the decision with the procedural requirements of the law, compliance with the deadlines for examination of the tax audit materials and making a decision on them, as well as additional tax control measures. The author pays special attention to the problems of qualification of procedural violations as significant ones, entailing the cancellation of the decision of the tax authority. The author formulates the criterion of procedural norms’ materiality of breach of the Russian Federation legislation on taxes and fees when considering the materials of a tax audit and making a decision by the tax authority.

Защита слабой стороны банковского договора в условиях использования сторонами смарт-контракта

The article is devoted to the features of protection the weak party in the situation when the parties to the banking agreement use the “smart contract” technology from the point of view of Russian and foreign doctrine. The author proposes particular changes and additions to the current regulation and the established judicial practice, while the general principles of legislation remain unchanged.

“Solar” cases: could Italy’s withdrawal from the Energy Charter Treaty lead to its collapse?

The article notes that investments in solar energy have already led to a number of arbitration cases related to the subsequent change in investment incentives. The so-called Solar Cases, initiated by investors under the Energy Charter Treaty (ECT) against Kingdom Spain, Italy and the Czech Republic, focused on the question of whether states could adjust incentives (subsidies and feed-in tariffs) to the detriment of investors after these investors relied on these subsidies to make their investments. Following the results of these arbitration proceedings, the European Union in 2019 decided to revise the text of the ECT. Eight rounds of negotiations were held during 2020 and 2021, the last of which took place in November 2021. Many believe that the reform of the existing treaty has taken too long. In February 2021, France sent a letter to the European Commission on the need for a coordinated EU exit from the ECT. Against this background, Italy’s withdrawal from the ECT on January 1, 2016, as well as Russia’s withdrawal of the signature on the treaty in 2018, are actions that determine the inevitable collapse of the ECT in the very near future. This article is devoted to the study of the causes and legal consequences of these events. Since Russia’s withdrawal from the ECT has already been the subject of study by many Russian and foreign scholars, the author focused their attention on the study of Italian arbitration disputes based on the ECT provisions, as well as on the study of foreign doctrine on this issue.

Сравнительный анализ законодательных предпосылок гражданско-правовой ответственности в России и Китае

The paper compares the legislative regulation of property liability in the form of compensation for losses in the Russian Federation and in a state with the largest economy, rapid development rates, and a giant population neighboring the Siberian region of our country - China. The logic of historical evolution predetermined a detailed consideration of each other's experience in state building and the implementation of long-term development plans. In the legal field, both legal systems are based on the concept of codified law and are being improved through the adoption of normative acts. The institution of forfeit and recovery of damages for non-fulfillment of obligations, violation of subjective rights, permitted unilateral termination of an agreement in cases specially specified in the rules is contained in the civil codes of Russia and China and has significant conceptual differences. Its comparative analysis has not been carried out in detail for the last 20 years and is the novelty of this study. Its relevance can be determined by the development and complication of economic ties in the Siberian region, which is characterized by an extensive Chinese economic presence. Inevitable disputes and peculiarities of the applicable law, in this case both Russian and foreign, create applied interest in the comparative analysis of not only legislative material, but also judicial and arbitration practice. Knowledge of Chinese approaches is necessary not only in litigation in foreign courts, but also when a dispute is resolved on the basis of Chinese law in domestic jurisdictions or arbitration tribunals. The degree of elaboration of this topic. The timeliness of this study is confirmed by the fact that little attention has been paid in legal science to comparing the concepts of compensation for losses in Russia and China, despite their doctrinal significance, a close connection with the notions of liability, causality, guilt and negligence of creditors. The aim of the study is to develop a theoretical model of legal regulation of relations regarding compensation for damages corresponding to the modern conditions of the market economy of the Russian Federation, which could become a methodological basis for improving the norms and practice of their application, protecting the legitimate interests of participants in these legal relations. The subject of the analysis is the norms that directly regulate the procedure for compensation for losses in Russian and Chinese civil law, as well as materials of domestic and Chinese foreign doctrine on the legal nature of this institution. The research is based on private scientific (special legal, comparative legal, historical) and general scientific (problem-theoretic, teleological and systemic) methods. In the process of studying and understanding specific legal issues, general logical methods were used (abstraction, analysis, synthesis, analogy, generalization, and so on). The author declares no conflicts of interests.

Prawo właściwe dla zobowiązań niewynikających z czynności prawnych w okresie Polskiej Rzeczpospolitej Ludowej

In the communist era, the law applicable to non-contractual obligations was regulated by two acts — the Private International Law of 1926 and the Private International Law of 1965, which dealt with the issue of the law applicable to obligations not arising out of legal action. The object of this study is to present the respective regulations in terms of determining this law. In particular, the author focuses on the analysis of two main connecting factors used at that time to determine the law applicable to non-contractual obligations, namely, the law of the place where the act giving rise to the non-contractual obligation was performed and the law of domicile. In the conclusion of the article the author assesses the solutions presented above from the point of view of both Polish and foreign doctrine.

Проблемы защиты конституционных прав граждан в условиях глобализации и цифровизации

The article discusses the main approaches to the problem of legal protection of constitutional rights of citizens in Russian and foreign legal doctrine. Given the complexity and scope of this topic, the main attention is paid to such aspects as the protection of constitutional rights of citizens in the context of globalization and the protection of constitutional rights of citizens in the context of digitalization. It is argued that the processes of globalization and digitalization have posed a number of urgent issues to scientists, and the scientific community should be ready to resolve them. Based on the analysis, it is concluded that the processes of globalization and digitalization entail the weakening of national legal institutions, which is a serious threat to the constitutional rights of citizens.

Cross-Border Oil and Gas Transactions in Private International Law: Concept, Types, and Features of Regulation

The paper proposes to refer to cross-border oil and gas transactions as contracts mediating relations in the field of international circulation of hydrocarbons. These include all transactions complicated by a foreign element (foreign entity, object, legal fact) and concluded regarding the exploration, development, processing, transfer, transportation of oil and gas as a commodity in the course of entrepreneurial and investment activities. Based on the Russian and foreign doctrine of private international law, the author examines the most common transactions in the industry, analyzes their features, and also proposes a basic classification of contractual structures. In the absence of a wide range of international treaties governing cross-border oil and gas transactions, the author concludes that the conflict of laws method of determining the applicable law is dominant. The importance of non-state regulators lex petrolea is noted, capable of complementing, but not replacing, national legal regulation.

The Intersection of Traditional and Modern Terminology as a Barrier in Understanding the Administrative Process

At present, in connection with the constitutional reform carried out in the Russian Federation, the process of reconciliation of the basic categories of administrative law with the Constitution is actively underway. In parallel, in the scientific community of specialists in administrative law and process, there has long been a request for the harmonization of views and concepts for the formation of modern administrative procedural legislation. Such a serious scientific task can be successfully solved only by relying on the letter and spirit of the country's fundamental law as the only indisputable starting point for doctrinal provisions. The catalyst for many years of discussion about the boundaries and essence of the administrative process was the adoption in 2015 of the Code of Administrative Proceedings of the Russian Federation. After the enactment of this code in scientific circulation, the categories of “judicial administrative law” and “judicial administrative process” are actively used, which brings the domestic doctrine closer to the theory of developed foreign countries. However, even in the absence of a law in Russia that defines the legal foundations of an extrajudicial administrative process, one should not forget that the majority of modern representatives of science recognize the existence of an extrajudicial administrative process in the Russian Federation. We are talking about the widest range of administrative cases - about the activities of administrative-public bodies to resolve administrative matters under their jurisdiction, both of a regulatory and protective nature, controversial and indisputable. In this situation, we believe that it is required to conduct a scientific analysis of the terminology used in Russia to study the essence of the administrative process. The article makes an attempt, taking into account foreign and domestic doctrine, to study numerous definitions for suitability for the formation of a uniform understanding of the administrative process in the Russian Federation. The work, in particular, explores the understanding of public administration and administrative justice, compares the content of the terms “administrative jurisdiction” and “administrative procedures” in Russia and in foreign countries. Based on the results of the analysis, it is concluded that the least controversy is caused by the use of the term “administrative proceedings” in relation to out-of-court proceedings and “administrative proceedings” to the judicial trial hearings.

THE INSTITUTION OF CONSENT OF ON THE EXAMPLE OF STERILIZATION TREATMENT

The article is an analysis from the theoretical and dogmatic point of view of the institution of consent which both in Polish and foreign criminal law doctrine, constitutes the axis of a significant dispute concerning both specific issues, such as the scope of legal goods that an individual can freely dispose of and issues of a more general nature, such as the dogmatic structure of crime. The author referring to the example of incapacitating procedures such as vasectomy or laparoscopy exposes the most important problems of a dogmatic as well as theoretical nature related to the title issue. At the same time author presents his own position on placing the consent in the dogmatic structure of a crime and also takes the floor on the sometimes raised issue of introducing the institution of consent into the penal code.

КОНЦЕПЦИЯ НАКОПЛЕНИЯ (КОНЦЕНТРАЦИИ) ОБЩЕСТВЕННО ЗНАЧИМЫХ ПУБЛИЧНЫХ ЭЛЕМЕНТОВ В ПРАВООТНОШЕНИИ КАК ОСНОВАНИЕ ДЛЯ НЕАРБИТРАБЕЛЬНОСТИ СПОРА

This article examines a relatively new phenomenon of domestic law enforcement practice – the arbitrability of disputes with a “public element”. Increasingly, the possibility of arbitration in disputes in which there is a so-called public element is being questioned. The courts do not disclose the concept of a public element. From the general understanding, it is only deduced that we are talking about public entities as participants in civil law relations, about the involvement of public property and budget financing in such relations. All the above relationships form an urgent problem of arbitration, which has a consequence in the form of refusal of state courts to enforce arbitral awards. This controversial judicial practice also gave rise to a controversial concept, which in the doctrine is called the concept of accumulation (concentration) of socially significant public elements. This concept raises questions from the point of view of the theoretical perception of this phenomenon: neither foreign nor domestic doctrine knew this phenomenon. Until this moment, only minor attempts were made to analyze this concept, as well as to analyze individual public elements and their impact on the legal relationship in terms of the possibility of a dispute from this legal relationship to be considered by arbitration. Bridging this gap is this article.

Paradigm of reforming higher legal education in Ukraine in the context of training practising students

The relevance of the study was explained by a special public demand for the quality of legal education, ensuring compliance of the content of legal education with modern requirements of the labour market and the tasks of professional activity of lawyers. The purpose of the study was to consider methodological, research and theoretical, legislative, educational, and methodological foundations regarding the practical orientation of the educational process of training lawyers as a paradigm for reforming higher legal education and determining the forms of organising the educational process aimed at improving the quality of legal education. The methodological framework of the study was formed considering philosophical, general scientific, and special scientific methods of scientific cognition. Conceptual approaches to the introduction of possible methodological forms of organising practical training of students into the educational process of higher legal educational institutions were proposed, considering the elements of the Bologna Process and the development of a unified educational space according to the European vector of development of Ukraine. The study considered methodological, scientific and theoretical, legal, and methodological foundations for a general understanding of the practical training of law students in the educational process, its functional purpose in the context of implementing the reform of legal education as a component of legal reform in Ukraine. The study emphasised the necessity of preserving and further developing fundamental higher legal education and combine it with the established national and foreign doctrines of law and the practical orientation of the educational process as a paradigm for reforming legal education in Ukraine. It was concluded that the development of practical skills and abilities of a legal education applicant occurs in the educational process due to various forms of methodological organisation of the educational process. In particular, the authors considered the features of conducting practical classes using case methods and solving incidents, as well as binary classes, practical training, working in a law clinic, performing dual education, taking part in court debates, etc. The practical value of this study lies in the fact that it proved the advisability of preserving the national traditions of higher legal education in the educational process and introducing new, progressive forms of the educational process aimed at improving the quality of higher legal education, which would meet the requirements of the labour market and the challenges facing a modern democratic society, global development trends and tasks of professional activity of lawyers in various fields

САМОРЕГУЛИРОВАНИЕ В СФЕРЕ ФИЗИЧЕСКОЙ КУЛЬТУРЫ И СПОРТА РОССИИ

Aim. The paper aims to determine the status of self-regulation in physical education and sport based on state regulation. Materials and methods. The norms of Russian legislation in physical education and sport, as well as in self-regulation were studied. Attention is paid to Russian and foreign doctrine on lex sportiva and self-regulation in sport. Moreover, world practices in sports management were studied. Results. It was proved that there was no single regulatory system for physical education and sport in the Russian Federation. It was established that there was no common understanding of the activities that made up physical education and sport. Researchers believe that this domain consists of a professional and entrepreneurial activity that is regulated by both public and private law. The national sports federations, which set standards and rules independently, also play an important role in such regulation. The autonomy of the issue can be also demonstrated through the existence of a specialized permanent arbitration institution. Conclusion. The existing regulatory system has sufficient prerequisites for establishing self-regulatory physical education and sport organizations. If Russian sports federations acquire the status of self-regulatory organizations and sports clubs become the members of such organizations, when the best way of regulating public relations in physical education and sport can possibly be achieved.

Obligations of Corporation Members

Introduction. The article is devoted to the analysis of the obligations of corporation members in Russian and foreign law. In the Russian and foreign doctrines, attention is paid to the duties of directors or controlling persons. Therefore, the legal question of the obligation of the corporation members is of high scientific interest. Theoretical Basis. Methods. The author analyzed the doctrines of corporate law in Russian and foreign science. In the process of studying the obligations of the corporation members, the au- thor relied on systemic, comparative methods, and a problem-theoretical method of research. Results. Specific obligations of the corporation members are considered. The issues arising in the field of legal content and implementation of several obligations of the corporation members are outlined. The obligation to act in good faith has been differentiated from the obligation to pre- vent actions aimed at an abuse of rights. Based on the analysis of foreign literature, the fiduciary duty of the corporation members is demonstrated. The responsibilities of the corporation mem- bers for non-performance of obligations are also highlighted. Discussion and Conclusion. As a result of the research, the author concludes that the responsi- bilities of the corporation members should be divided into two categories, namely basic and addi- tional. The basic obligations of the corporation members should include the following: to prevent abuse of corporate rights, to act in good faith, to participate in the formation of the corporation’s property, not to disclose confidential information about the corporation’s activities, to notify the corporation and its members in advance of their intention to file a directive claim, and to disclose information. The obligation to act in good faith and the obligation to prevent actions aimed at abusing the right differ in their content. The fiduciary duty of the members of the corporation is, in fact, the same as the obligation to act in good faith. Failure by a member to comply with cor- porate obligations may entail the following measures of corporate responsibility: exclusion of the participant from the corporation, suspension of voting rights, financial sanctions.

Злоупотребление правом: историко-теоретическое исследование

Abuse of right is one of the most complex phenomena in legal science, the study of which requires the use of a wide range of methods of cognition, both general scientific and private law. The author of the article makes a generic analysis of the concept “abuse of right”, disclosing the history of its appearance and development. However, special attention is paid to the discussion of scientists about the essence of abuse of right, in which, as in a “multi-layered cake”, more and more narrow subjects of the discussion are layered, but at the same time, they are all permeated with a common goal – to determine the place and role of the phenomenon in the modern legal order. Historically, the first debate arose on the validity of the very concept of abuse of right, caused by a combination of two words that were opposite in meaning: “right” and “abuse”. This discussion has been going on for more than a century and takes place both in Russian civil law and in foreign legal doctrine. There is also no consensus among supporters of the concept of abuse of right: some attribute abuse of right to a variety of lawful behavior, others call it an offense. This problem is currently urgent and complex. Finally, there are disagreements about the branch of abuse of law: is this concept inter-branch in nature or is it exclusively inherent in the civil law branch? As a result of comparing all points of view, the author in each of the above discussions reasonably takes this or that position. As a result, a complete understanding of the phenomenon under study is formed.