Foreign Law Research Articles

Electronic form of transactions: Issues of legal regulation

This paper analyzes the form of transactions made with the use of electronic and other technical means (electronic form). The research aims to determine the essential features and develop an optimal model of regulation of electronic transactions form, considering foreign experience, theoretical advances, and judicial practice. The relevance of the study is explained by the increasing number of e-transactions which require adequate legal regulation and law enforcement practice. The author consecutively describes internationally recognized regulatory principles of electronic transactions form (non-discrimination, technological neutrality, functional equivalence) and their implementation in Russian and foreign law. In addition, the author analyzes the issue of the correlation between the written and electronic forms, considers and rejects arguments in favor of singling out electronic methods of will formation as an independent (sui generis) form of transactions. Considering the current Russian judicial practice and foreign experience, the study determines the criteria and methods of reliable determination of a person effecting an electronic transaction. On the grounds of dogmatic and political arguments, the overly formalistic idea that the use of a qualified electronic signature is the only way of such identification is rejected. The author also formulates an optimal interpretation of the Russian Civil Code requirement on the reproducibility of the electronic transaction content on a tangible medium unchanged. Based on the results of the study, practical recommendations are described to help judges make fair and reasoned decisions in specific situations interpreting the provisions of the Russian Civil Code on the electronic form of transactions.

Perspectives internationales de la réforme du droit français des sûretés

Abstract A recent French reform, dated 15 September 2021, which entered into force on 1 January 2022, largely modifies the law of guarantees and security interests. It clarifies a certain number of rules, suppresses several security interests that appeared to be obsolete, and reinforces the protection of warrantors without neglecting the interests of creditors. Adopted to promote security, flexibility, and accessibility to French Law, and to enhance the efficiency of secured transactions, the reform has generally been perceived as successful. The purpose of this paper is to present the reform in an international perspective and to try to understand whether it fits the purpose it was assigned: to strengthen the attractiveness of French Law in the comparative landscape. We will demonstrate that, regarding a certain number of international instruments and foreign laws, the answer tends to be affirmative. The French Government might also seize this opportunity to include France in several international projects that it has, so far, stayed away from, such as the ratification of the Cape Town Convention.

The governing law of contribution claims: looking beyond Roberts v SSAFA

The governing law of claims for contribution, where the applicable law of the underlying claim is a foreign law, has long posed a knotty problem in English private international law. The Supreme Court's decision in Roberts v Soldiers, Sailors, Airmen and Families Association considered this issue in the context of the common law choice of law rules. This article considers the decision in Roberts and claims for contribution falling within the scope of the Rome II Regulation, the Rome I Regulation as well as the Hague Trusts Convention. It is argued here that claims for contribution arising out of the same liability should be considered as “parasitic” on the underlying claim and should prima facie be governed by the applicable law of the underlying claim.

DIGITAL IDENTIFICATION AND FINANCIAL MONITORING: NEW TECHNOLOGIES IN THE FIGHT AGAINST CRIME

The purpose of the research is to explore the role of emerging technologies in combating criminal activities, particularly in digital identification and financial monitoring. The article aims to highlight how these new technologies can enhance the effectiveness of law enforcement agencies and financial institutions in detecting and preventing crime. Methods. The methodological basis of the research was a set of methods of scientific knowledge. In particular, the phenomenological method allowed the author to analyse national, international, and foreign law legal sources. The analytical method was used during the analysis of the conceptual and categorical apparatus, the definitions of “artificial intelligence”, “digital identification”, “blockchain”, etc. The author also used the method of analysis and generalisation, which made it possible to clarify and generalise views on the essence and types of digital identification for further use in financial monitoring. Results. The article discusses various technological advancements, such as biometric identification systems, blockchain technology, artificial intelligence, and data analytics, and their application in the fight against crime. It explores how digital identification systems can help verify individuals’ identities more securely and efficiently, reducing the risk of identity theft and fraud. Additionally, it examines how financial monitoring tools can enable authorities to track suspicious transactions, detect money laundering activities, and disrupt the financing of criminal organisations. The article also addresses potential concerns and challenges associated with using these technologies, such as privacy issues, data security, and ethical considerations. Conclusions. New technologies such as biometrics (e.g., fingerprints, facial recognition, iris scans) and blockchain-based systems can improve digital identification processes. These technologies offer increased security, reduced fraud, and streamlined identity verification procedures, preventing theft and other related crimes. Advanced data analytics, machine learning, and artificial intelligence algorithms can be utilised to enhance financial monitoring systems. These technologies enable faster and more accurate identification of suspicious transactions, money laundering activities, and financial crimes. Automated systems can analyse vast amounts of data and detect patterns that would be difficult for humans to identify, thereby assisting law enforcement agencies in combatting financial crimes.

Review and Proposal Regarding Tattooing Procedures

Purpose: The societal perception of tattoos has evolved, and tattooing procedures have become more prevalent. However, tattooing constitutes a medical procedure involving invasive actions on the skin, thereby falling within the scope of medical practices. Unless performed by qualified medical professionals possessing medical expertise, there is a constant risk of jeopardizing the life, physical well-being, or public health of tattoo recipients. Consequently, this paper seeks to investigate the current state of tattooing practices in South Korea, examining the legal issues at hand, and proposing measures to mitigate potential harm to consumers.
 Method: Through a comprehensive review of prior research and analysis of relevant literature, including an examination of judicial precedents, this study aims to examine the stance of the Constitutional Court and the Supreme Court regarding tattooing. Additionally, it seeks to review the legislative systems pertaining to tattooing in foreign countries such as the United States and Japan in order to propose improvements to the current tattooing system and suggest measures for consumer protection.
 Results: Through a review of legal precedents in our country, we have identified the evolving perception regarding the practice of tattooing. Additionally, by conducting research on foreign laws and systems, we have gained new insights into the legalization of tattooing and the considerations for potential solutions. By engaging in comprehensive discussions encompassing the protection of citizens' right to life and health, public health concerns, as well as the artistic nature, freedom of expression, and freedom of occupational choice associated with tattoos, we have sought to explore measures for improvement in the field of tattooing.
 Conclusion: Through this study, it was possible to ascertain the changing public perception of tattooing. Additionally, by conducting an analysis of foreign legal systems that reflect the evolving perception of tattoos, avenues for the legalization of tattooing could be explored. Protecting the right to life and promoting health, which are the objectives of medical law, naturally entail reserving medical procedures for qualified healthcare professionals. However, given the difficulty of reversing the widespread acceptance of tattooing brought about by societal changes, it is now necessary to consider the legalization of tattooing through legal and regulatory frameworks. This should be accompanied by consistent governmental oversight and supervision by the Ministry of Health and Welfare to safeguard the health rights of the population.

Legal consolidation and practice of law of the renvoi institute in the romano-germanic legal system

The article is devoted to the study of the renvoi doctrine on the example of the countries of the Romano- Germanic legal system: France, Germany and Italy. The author analyses in detail the decisions of the courts that have established precedents for the application of this doctrine. The author points out that France is considered to be one of the founding states of the renvoi doctrine and the term «renvoi» became world famous after the Forgo judgment. The author analyses the cases in which the French courts have applied the principle of deference to resolve conflicts of law. Examples of changes in French legislation that excluded the rules of deference for decisions in inheritance matters are given. The author analyses in detail the French statute on reference to the legislation of other states and the rules of interpretation of legislation in cases where it refers to France or other countries. The process of creation and implementation of the Code of Private International Law in France is considered.
 The author highlights the practical aspects of the use of deference in France and notes that, despite the existing doubts and problems, deference is becoming increasingly acceptable and widespread in the practice of private international law. The author analyses the peculiarities of German conflict of laws in the context of situations where a backward reference to the law of a third state which is not a member of the European Union (EU) is made.
 It is established that in the practice of German courts, the concept of implied deference is used to achieve justice and ensure predictability and stability in the resolution of international disputes. It makes it possible to preserve the principles of foreign law while using national law for this purpose.
 The author examines the issue of retroactive reference in Italian law, which requires that a court apply conflict of laws rules to a case on its own initiative. The article provides examples of a court decision in a case where the issue of application of the renvoi doctrine arises.

An analysis of legal accountability for artificial intelligence systems in the South African financial sector

While the deployment and use of Artificial Intelligence Systems (AIS) have continued to grow at an exponential rate in the world, and they are generally viewed as positive for economic growth and productivity. However, there is a concern about how to hold AIS legally liable and responsible just as a person. This is said against the backdrop that AIS has become indistinguishable from humans and as such they should be entitled to a status comparable to natural persons in order for them to enjoy legal rights and incur liabilities like juristic and natural persons. Especially in the financial sector where the use is ubiquitous in virtually all aspects of the sector from credit assessment to credit rating, credit and loan facilities, customer services, and decision-making for and on behalf of corporations. The situation in South Africa is precarious because, presently, the AIS has not been granted clear legal status in any South African statutes. It is pertinent to point out that while there is no legislative framework dealing specifically with AIS and related legal issues in the financial sector such as the banking industry, a raft of legislation is in place to regulate potential risks posed by the use of AIS in the sector in South Africa. These include legislation in the areas of financial and banking regulations. The problem is the fragmented way the regulations and legislation have been approached. Notably, the financial sector in South Africa uses AIS for their operations and as such sometimes, AIS commits errors, omissions, etcetera, making them eligible for accountability. But the problem still remains that there is no single legislation in South Africa upon which AIS will be held legally accountable save for fragmented pieces of legislative frameworks which have accountability components, but these are not adequate. It is against the backdrop of this specific accountability vacuum for AIS in the financial sector that this article explores germane provisions of the Constitution of the Republic of South Africa 1996 (Constitution) as well as existing fragmented legislative frameworks and foreign law jurisprudence where AIS accountability is well developed and have the potential to hold AIS responsible for their omissions or commission was explored and useful lessons are drawn accordingly.

The impact of foreign laws on U.S. firms: evidence from the U.K. Bribery Act

The impact of foreign laws on U.S. firms: evidence from the U.K. Bribery Act

Smuggling as an illegal encroachment on the foundations of the market model of the economy in Ukraine: some topical issues

The research paper is devoted to some issues of criminal responsibility for smuggling in Ukraine. In particular, an analysis of problematic issues related to the legislative regulation of the subjects of crimes provided for in Art. Art. 201, 201-1, 305 of the Criminal Code.
 An overview of modern publications devoted to the issue under consideration was made. Attention is focused on the current problem of recriminalization of "goods" smuggling in Ukraine.
 The author's classification of groups of subjects, normatively fixed in Articles 201, 201-1, 305 of the Criminal Code. Attention was also drawn to the fact that the crime provided for in Art. 201 of the Criminal Code, contains a wide list of additional objects, which to some extent complicates the proper criminal-legal assessment of the committed crime.
 The scientific position expressed in the legal literature regarding the need to establish criminal liability for people smuggling is also critically studied, given the fact that the territory of Ukraine is actively used by criminal groups to transport illegal migrants to Western European countries.
 Several modern examples from domestic and foreign law enforcement practice are given, dedicated to the problems of establishing the crime-forming features of the investigated crimes.
 Based on the results of the research, several theses-conclusions were substantiated: 1) illegal movement of goods across the customs border of Ukraine includes illegal activities of import into the customs territory of Ukraine, export outside the customs territory of Ukraine or transit through its customs territory of goods; 2) the illegal movement of goods across the customs border of Ukraine is carried out with the aim of avoiding the payment of taxes (fees) and other mandatory payments or minimizing their amount by creating fictitious grounds for simplifying customs procedures; 3) the schemes of illegal movement of goods across the customs border of Ukraine with their subsequent legalization are quite flexible, they are constantly changing; 4) the perspective of the scientific analysis of the “blanket” component of “contraband” bans is emphasized.

The Effect of Public Order in Excluding Foreign Governing Law Comparative Study

إذا ما أشارت قاعدة الإسناد الوطنية باختصاص قانون أجنبي، ليطبق على علاقة قانونية مشوبة بعنصر أجنبي؛ من المتصور أن يصطدم القاضي الوطني ببعض الحقوق والمراكز القانونية التي نشأت في الخارج بشكل صحيح ضمن قانون أجنبي، والتي يريد أصحابها التمسك بآثارها، ومن المتعارف علية أنّ الدفع بالنظام العام بالنسبة لإنشاء الحقوق في دولة القاضي يختلف عن الاحتجاج بآثارها القانونية، وإذا ما كان الدفع بالنظام العام يعمل بقوة في الحالة الأولى؛ فإنّه يتراجع كثيرًا في الحالة الثانية، وبالأخص أمام الحقوق المكتسبة والعلاقات المستقرة، رغم الاختلاف الذي نشأت هذه الحقوق في كنفه وقانون القاضي الوطني، وقد كان هذا الوضع وراء خلق فكرة النظام العام المخفف أو الأثر الملطف للنظام العام، وهو ما تبناه القضاء في العديد من الأحكام التي وافقت آراء الفقهاء بهذا الصدد؛ بهدف السماح في أحوال معينة بتطبيق القانون الأجنبي رغم مخالفته النظام العام الداخلي، وتهدف الدراسة إلى تخفيف أثر الدفع بالنظام العام في الحقوق التي اكتسبت بالخارج وتخفيف صرامته بشكل موافق للقانون الذي نشأت بموجبه، ولقد اتبعت المنهج الوصفي التحليلي المقارن، والذي من خلاله توصل الباحث إلى مجموعة من النتائج، بالإضافة إلى بعض التوصيات أبرزها الاعتراف بالحقوق المكتسبة في الخارج، وهو تلطيف لمفعول النظام العام، ولا يعني استبعادًا كليًا لفكرة الدفع بالنظام العام في جميع الأحوال بالنسبة لأي حق اكتسب بالخارج، وتم طرح النزاع المتعلق به أمام القاضي الوطني ، هناك ضرورة لوجود نص في التشريع الأردني يخضع فيه الدفع بالنظام العام لرقابة محكمة التمييز في دولة القاضي؛ لأنّ خبرة محكمة التمييز في فهم القانون الأجنبي وتفسيره، وفهمها لقصد المشرع الأجنبي أعمق من فهم القاضي المنفرد.

On the issue of the “ecological corridor” concept

The following scientific paper explores the issue of defining the concept of ecological corridor as a means of protecting Special Protected Natural Areas (SPNA) and objects of the State Nature Reserve Fund (SNRF). The statutory definition given in Paragraph 22 of Article 1 of the Law of the Republic of Kazakhstan “On Special Protected Natural Areas” (hereinafter referred to as the SPNA Law) does not accurately reflect the essence and features of ecological corridors, or their main purpose. A number of legislative rules on environmental corridors contained in Article 81 of the SPNA Law and relevant resolutions of the Government of the Republic of Kazakhstan require adjustments as well. The paper gives a brief historical overview of the development of rules on ecological corridors within the environmental legislation of the Republic of Kazakhstan, as well as the process of establishing ecological corridors. The study has revealed very little attention paid both in Kazakhstan’s legislation and legal science to the definition of the concept of ecological corridor. Meanwhile internationally, based on the spatial culture model Patch-Corridor-Matrix by scientists R. Forman and M. Gaudron, they are explored in a whole multitude of scientific papers and separate regulatory legal acts (e.g., in the Kyrgyz Republic). The issues of establishing ecological corridors have been elaborated only in a few studies by landscape ecology and geoecology reps. Based on the analysis of the provisions of the EC RK, the SPNA Law, and other sources of Kazakhstan and foreign law, as well as scientific approaches to the issues of defining and establishing ecological corridors, terminology of landscape ecology and recommendations have been developed to improve Paragraph 22 of Article 1, Paragraphs 1 and 2 of Article 81 of the SPNA Law, as well as to develop new regulatory legal acts.

Albanian Civil Code 1929 as Part of the European Family of Civil Law

Background: The Civil Code would dictate the affiliation of Albanian civil law to the Romano- Germanic family, finally separating it from Ottoman law. This Code, to this day, preserves its contemporary character, individuality, and integrity, not only because it is based on the idea of protecting basic human rights and freedoms, as well as the democratic model of society that inspired it, which always remain valid, but also that it continues as a working tool for specialists in this field. Undoubtedly, foreign rights, especially French, Italian, and to some extent, German and Swiss, would inspire the Albanian legislator to sanction in its provisions the equality of all citizens, the emancipation of land ownership, and the freedom to engage in economic activities. Methods: The methodology used during the drafting of this paper is mainly based on Albanian and foreign doctrinal views, focusing in particular on the Italian and European doctrines, due to this doctrine and this legislation being referred to by our legislator at the time of drafting the Civil Code. Also, among the methods used in this paper are the analysis and comparative methods.Results and Conclusions: The acceptance of foreign law in the Civil Code of Zog, more than “a matter of quality”, was a “matter of power”, because foreign rights, especially French and Italian, which found their sanction in this Code, they were rights belonging to the spiritual influence of modern civilization, and above all, to that of the “Italian Renaissance” and the “French Revolution.”

Translation in pre-trial phases of the judicial process: developing a norm-based framework to train translators working into Arabic

Abstract The present study examines the implications of judicial translation in the context of international migration and its relationship with the law of the host country. In this context, judicial translation involves highly sensitive documents that can be as varied as family registers and statutory declarations. It also refers to specific legal instances of interaction with judicial authorities in which the observance of certain communication norms is of paramount importance. This is particularly true in the strict setting of a judicial interview. This paper describes how translation is performed in a pre-trial police interview in which the communication of certain basic legal obligations becomes challenging for a migrant person, due to differences in legal backgrounds. In such a situation, the main question is as follows: how can differences in basic legal notions be dealt with in the particularly strict setting of a judicial interview with the assistance of a translator? To answer this question, the study focuses on a threefold challenge for the translator, who must be equipped to handle language, translation and legal/ethical norms. It proposes a translation framework based on these norms and the way in which they are applied in a real interview. It seeks to guide the translation task and serve as a tool for judicial translation training. With regard to the translation norm, the study shows that discursive creation is to be the most relevant technique to represent concepts that do not have counterparts in the target language. Although the foreign element in the new terminology may Ahighlight the boundary between the foreign law and the target legal institution, this technique also leads to the creation of new concepts in the target institution.

Foreign experience of the constitutional and criminal law prohibition of torture

The subject of research in this article is the long-term experience of a number of countries of the modern world summarized by the author in the field of legislative regulation of criminal liability for torture in many of its manifestations. In addition, the relevant international legal provisions, which are the legal basis for combating torture in national legislation, acted as such. In particular, we are talking about the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Since the prohibition of torture is absolute, comprehensive and constitutional, which is reflected in a number of state constitutions, the subject of the study was the norms of the basic laws of a number of countries. The scientific novelty of the work lies in the fact that in the article, based on the analysis of the palette of legal definitions of torture existing in foreign law – from brief, reflecting only its main properties, to detailed, descriptive ones, the author's vision of the grounds for distinguishing between these definitions is determined, heterogeneous approaches to understanding how the object of torture, as well as its subject, to determine the place of this crime in the structure of the Special Part of Criminal Laws.

Interaction of law enforcement bodies of Ukraine in disclosure of offenses and crimes:

The purpose of the research is to study the interaction of law enforcement bodies during the investigation of criminal offenses in accordance with international standards. The main areas of cooperation between law enforcement bodies in different states during the investigation of criminal offenses are highlighted. Recently, taking into account the great public danger of criminal offenses, it is worth noting that they have long acquired a transnational nature, and it is worth focusing special attention on the issue of cooperation between the National Police of Ukraine and international organizations on investigation of this category of criminal offenses. The methodological basis of the research is presented as comparative-legal and systematic analysis, formal-legal method, interpretation method, hermeneutic method, as well as methods of analysis and synthesis. Attention is drawn to the issue of cooperation between operational units of the National Police dealing in combating criminal offenses, and to the issue of foreign law enforcement bodies performing operational and investigative activities.

Digital Lending Laws in India and Beyond: Scrutinizing the Regulatory Blind Spot

With the introduction of the digital fintech ecosystem in India, there has been a paradigm shift in traditional banking practices, one of which is the complex and time-consuming lending procedure in India. With the popularization of digital credit, lending has become more accessible to the general public and has catered to the demands of the larger population who could not access this service in the past. Although this is a booming industry with an estimated size of 270 billion dollars in the year 2022 itself, India's regulatory framework cannot keep pace with this sector's growth. It has been a concern for both the industry and the customers. The present paper examines the current regulatory regime governing digital credit in India with a special focus on the RBI Guidelines on Digital Lending, 2022, and provides a comparative analysis of the regime with foreign laws. The paper also provides for the regulatory gap in these laws in India and attempts to provide suggestions to make the law more efficient and effective. The study utilizes a doctrinal research approach, which involves an extensive review of the literature and analysis of the regulatory framework in India and foreign countries and highlights the challenges faced by the digital lending industry of India. Furthermore, this study's findings have significant implications for policymakers, digital lending platforms, and consumers in India.

RESTRUCTURING DOMESTIC SOVEREIGN DEBT: FISCAL SAVINGS AND FINANCIAL STABILITY CONSIDERATIONS

Sovereign domestic debt restructurings (DDRs) have become more common in recent years and touched upon a growing share of total public debt. This, however, should not come as a surprise. While the market for international (i.e., foreign law) sovereign debt securities has a volume of roughly $1 trillion, the total outstanding amount of domestic securities is about 40 times as large. In Emerging markets and developing economies, where debt restructuring is likelier to happen, the share of domestic debt in total debt has risen from 31 to 46 percent from 2000 to 2020. During 1990–2020, there were roughly as many DDRs (30 episodes) as stand-alone external debt restructurings (EDRs) (27 episodes).

The Interpretation of Imperfect Arbitration Agreements: In Search of the Parties’ Intention to Arbitrate

This article aims to review several arbitration agreements governed by Polish law and some arbitration clauses subject to foreign law, which may be considered flawed or imperfect. Furthermore, it will demonstrate how Polish and foreign courts handled these agreements. It is worth noting that the approach of courts to interpreting these agreements may vary from case to case. In some decisions, courts disregard the parties’ intention to arbitrate, prioritizing the jurisdiction of state courts, while in others, they employ a ‘pro-arbitration’ interpretation, thereby closing the door to state courts’ involvement in the case. In summary, our primary focus will be to identify the parties’ intention to engage in arbitration within the various cases we examine.

선박검사에 관한 국내외 법령 비교 및 개선방안 연구

선박의 안전과 해양사고 예방을 위해서는 선박이 안전한 운항을 담보할 수 있어야 한다. 선박은 선박검사를 통하여 안전운항 적부를 논하게 되며, 검사 규 정의 근간은 IMO 국제해사협약과 각 나라의 국내법이 된다. 우리나라 선박안 전 및 검사제도 법령은 일제 강점기를 거친 역사로 인하여 일본의 그것과 매우 흡사하나 잘 사용하지 않는 용어 수정, 제도 보완 등의 과제가 남아 있다. 또한, 우리는 아직도 해외의 선진법제를 도입하고 있는 처지에 있어 해운 선진국의 위치에 있는 미국과 영국의 법제를 연구하는 것은 우리나라 관련 법제를 정비 하는데 큰 도움이 될 것이다. 이러한 이유로 불문법 체계를 가진 미국과 영국 그리고 우리나라와 같이 성문법 체계를 가진 일본의 선박안전 및 검사 법령을 고찰하였다. 미국과 영국은 불문법 체계를 가지나, 성문법 국가인 우리나라에 비하여 뒤 지지 않을 만큼 제정법화 되어 있으며 통합적인 법 체계를 구성하면서도 세분 화된 검사대상을 규정하여 보다 효과적으로 이행하고 있다. 이에 반하여 우리 나라 선박검사 관련 법령은 여러 기술고시에 산재하여 있는 등 상대적으로 복 잡한 구성을 취하고 있어 수범자로 하여금 규범 준수의 어려움이 있다. 따라서, 선박안전법 및 해양환경관리법 하위의 복잡하고 관리가 어려운 기술고시 및 기 준을 간소화하거나 통합하는 것이 필요하다. 일본의 경우, 법령의 명칭과 용어 사용에 있어서 우리와 매우 유사한 체계를 가지고 있어 구조적인 보완점이나 시사점을 도출하기에는 어려운 사실이 있다. 그러나, 선박안전 및 검사제도 법령을 위반할 경우 벌칙이나 과태료 조항을 관 련 법 조문 뒤에 명기하고 있는 형식을 참조하여 선박검사 관계법령에 한해서 라도 법 조문에 대한 시인성과 직관성을 높이는 방안을 고려할 필요가 있다. 선박검사와 관련하여 국제항해에 종사하는 선박은 국제해사협약을 적용하도 록 하고 국내항해에 종사하는 선박은 각 나라의 특징과 실정에 맞도록 국내법 을 제정하여 적용하는 검사규범 이원화를 고려할 필요가 있다. 또한, 획일화된 규정 제정보다는 특별히 안전관리가 필요한 선박별로 규정을 강화하는 검사규 정 집중화도 요구된다.

Prawo właściwe dla zawarcia małżeństwa w polsko-ukraińskiej umowie o pomocy prawnej i stosunkach prawnych w sprawach cywilnych i karnych

The law applicable to marriage between Polish and Ukrainian nationals is set out in the 1993 Convention between the Republic of Poland and Ukraine concerning legal aid. The Convention stipulates that that a marriage can be contracted if the prerequisites provided for in the prospective spouses’ national laws are satisfied - determined separately for each of them. The Convention concerns only marriages between Polish and Ukrainian citizens and does not apply to stateless persons. The form of marriage is governed by the law of the State where the marriage was celebrated. The article discusses some issues concerning the prerequisites and scope of application of these regulations, taking into account the differences between the Polish and Ukrainian family law. These differences concern mainly the form of marriage (Ukrainian law does not provide for a religious form and does not allow the marriage by proxy) and some obstacles to marriage (in Ukrainian law the invalidity of marriage results, inter alia, if the marriage in question constitutes a sham or if there occurred a misrepresentation as to the health of a prospective spouse). The reader’s attention is also drawn to a specific ordre public exception contained in Article 58, paragraph 1 of the Ukrainian Law on Private International Law, according to which a marriage between a Ukrainian national and a foreigner concluded under foreign law outside the territory of Ukraine is valid in Ukraine provided that the Ukrainian national complies with the provisions of the Family Code of Ukraine concerning the grounds invalidating the marriage. However, this provision should not be applied if Polish law applies on the basis of the provisions of the Convention. The paper also touches upon the Ukrainian law to the extent it contains a residual regulation concerning engagement. Under this regulation, the person who refuses to marry despite an earlier engagement must reimburse the other party for the costs incurred in connection with the preparation for the registration of the marriage and the wedding. The study also draws attention to some practical aspects of marriage conclusion - in Poland by a Ukrainian citizen (Ukrainian law does not provide for the possibility of issuing a certificate of capacity to marry) and in Ukraine by a Polish citizen.