General Rules Of Civil Law Research Articles

PROVING ANTITRUST DAMAGES IN CIVIL PROCEEDINGS – The Compatibility of Serbian Law with Directive 2014/104 –

Private competition law enforcement has been a recent phenomenon in the European Union. In the past, the EU law and member states’ national laws lacked elements that contributed to the preponderance of private enforcement in the United States, such as treble and punitive damages, the procedural right of a damaged party to request discovery of evidence, collective actions, etc. The interest in private enforcement of competition law has gradually increased after Regulation 1/2003 authorised national courts to implement Articles 101 and 102 TFEU, the EU courts established private enforcement principles, and Directive 2014/104 (Antitrust Damages Directive - ADD) laid down rules to facilitate proving competition law violations and damage resulting from them. The US model evidently inspired the EU legislator. At the same time, ADD attempted to balance the private interests of injured parties and the public interest for effective public enforcement. Specific ADD provisions instigated a public debate concerning their reach and alleged confrontation with general legal principles. Even though member states have taken comprehensive measures to implement ADD, national courts need to search for an equilibrium between private and public interests. Therefore, the full effect of Directive 2014/104 is yet to be seen. Private enforcement of competition law in Serbia is still in its initiation phase. The Serbian Competition Protection Act 2009 proclaimed the right of damaged persons to bring actions for damages, even though this right has already existed under the general rules of civil law. The Competition Protection Act failed to stipulate material conditions and procedural rules that would facilitate private enforcement. The Serbian legislator has not yet taken steps to transpose ADD into national law. This paper first analyses the development and principal features of the US and EU private enforcement models. After that it focuses on the ADD provisions expediting evidence collection and damage assessment. The second part of the paper analyses Serbian tort and civil procedure rules relevant to bringing actions for antitrust damages and case law on antitrust damages. The author concludes with proposals for Serbian legislators to harmonise national law with ADD.

On (Non)applicability of the General Rules on the Contract and Obligations to the Contract with a Surrogate Mother

Despite the fact that a lot of research has been devoted to surrogate motherhood as a phenomenon of social life, most of the research is focused on the question of whether surrogate motherhood is permissible in principle. This article proposes to reveal all the details. The analysis showed that the specifi city of regulated relations leads to numerous taboos, silence of both the legislator and judicial practice in relation to many problems arising in connection with surrogate motherhood. It is proposed to use the criterion of the best interests of the child as a means of checking to what extent the general rules of civil law on contracts and obligations are applicable to the regulation of surrogate motherhood relations. Conclusion: the general provisions on contracts and obligations are applicable to fi ll in the gaps in the legal regulation of surrogate motherhood relations, but only subject to mandatory verifi cation whether each case of application is in the best interests of the child.

Characterization and the legal basis for the civil liability of the magician and sorcerer - Comparative analysis research

Witchcraft and sorcery are a hidden and unknown work of society that is a source of problems and harm to individuals in society and has a dangerous role in creating more belief among people. This problem is an old renewed problem that is constantly renewed over time and has spread from one era to another. Currently, it is a living issue in our society that the absence of any legal text in the Iraqi Civil Code and the absence of any guidelines has made the issue more intense and more dangerous to individuals in society. We therefore make a good academic effort to uncover the civil liability of a person practicing witchcraft by referring back to the general rules of civil law in comparative laws such as the UAE Civil Procedure Code, Sudan Civil Procedure Code and Iraqi Civil Code. Focusing on the introduction of magic and divination products، discussing the materiality, of magic and divination products and legal compatibility with civil liability in magic and divination products، and identifying the type of liability that have been ignored in the Civil Code. Hoping to set a precedent for the legislature to pass a law on the subject.

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.

From the General Provisions of Civil Law to the General Rules of Civil Law: A Historic Leap

The General Provisions of Civil Law (民法通则), formulated in the early days of reform and opening up, was a special law that set out the basic principles or rules of civil law, defining civil subjects, civil legal acts and the agency system, declaring the civil rights enjoyed by civil subjects, establishing a relatively complete system of civil liability system, and so on. It kindled awareness of civil rights among the mass of the population, ensured China’s rapid economic and social development, and laid down a basic framework and content for the civil code, so holds an important position in contemporary Chinese history. But with the development of the economy and society, civil law has had to change with the times. Civil law jurisprudence injects theoretical support into contemporary civil law legislation, and the blueprint for law based governance provides a powerful impetus to the historic leap forward of contemporary Chinese civil law, providing the necessary conditions for the codification of civil law. The completion of the General Rules of Civil Law (民法 总 则 ) answers the requirements of the economic, humanist and legal character of the times, demonstrates the humanist stance and spirit of the civil code, rises to the challenge of modern scientific and technological development, and ensures people’s enjoyment and control of their new-style rights and their objective forms. This signifies that the GPCL has accomplished its historical task and civil law in contemporary China has realized a historic leap forward, laying a foundation for the compilation of the Chinese civil code, including the specific provisions of the framework and the contents of its individual parts.

Комплексная правовая характеристика договоров возмездного оказания образовательных услуг

The distinctive features of contracts for the provision of services in civil law are defined and characterized, highlighting the features inherent in contracts for the provision of educational services. The degree of regulation of these contracts in civil legislation is determined. The classification of contracts for the provision of services in civil science is considered, with the allocation of the criterion of remuneration and subjectivity. It is proved that the contract for the provision of educational services has, in addition to the civil nature, also the features of a public law contract. The attribution of these agreements to accession agreements is justified. The public nature of the educational services provided makes it possible to define contracts for such services as public, which extends to them the norms of civil legislation governing such types of contracts. It is determined that the results of educational services provided under contracts are subject to quality guarantees regulated by the Civil Code of the Russian Federation, which are considered in the context of two groups: legal and contractual. Analysis of the relations regulated by the contract of compensated rendering of educational services, was allowed to come to the conclusion that he has a dual legal nature, combining features of civil law and public contract governed by the general rules of civil law on paid services, special norms of the law on education and regulations on consumer protection.

The Connection with Civil and Commercial subjects from the View of Compilation of Civil Code

Commercial subject is first a kind of civil subject, and becomes commercial subject by virtue of entering the business field. Therefore, it suggests that the reform shall be taken on the enterprises’ business license, abandoning the unionism mode and adopting the separatism mode. Such view has the rationality to some extent, matching the theoretical system of civil subject. However, it neglects the specificity of commercial law and the purpose of creating the commercial subject. The commercial subject shall be independent of the civil subject. When the commercial subject obtains the certificate of subject qualification, it gains the general business qualification and may carry out its business, unless the law or special industry requires separately. As for the classification of legal persons, the newly-enacted General Rules of Civil Law (General Rules) divides the legal persons into for-profit and non-for-profit, inheriting and developing the conventional practice. Whether in form or in content, Company Law has a large impact on legal persons within General Rules. The classification of commercial subject is not able to perfectly match the classification of civil subject within General Rules. The expressions of certain terms or words have some differences between General Rules and Company Law. In some places, regulations in Company Law are wider than General Rules, while the regulations in General Rules are restrictively selected. Some terms are first provided in General Rules, refining and sublimating of the regulations in Company law. Where there are conflicts between these two laws, the issues of legal application and interpretation will apply.

Effect of National Decisions on Actions for Competition Damages in the CEE Countries

One of the main objectives of the so-called Damages Directive (2014/104/EU) was to make antitrust enforcement more effective. Although in most EU countries private antitrust enforcement has been possible subject to general rules of civil law; the number of private antitrust litigations has remained relatively low. It is presumed that the complementary roles of public and private enforcement, as well as the synergy between them, will take effect if formal decisions taken during public enforcement will have binding effect with regard to follow-on private litigations. According to the Damages Directive, final national decisions on competition infringements shall have binding effect in follow-on litigations. What is to be understood under ‘binding effect’, and the potential effects thereof, has been subject to a lively debate among academics and practitioners. It has been questioned if decisions of an executive body can bind the judiciary, and if so, to what extent. What is the evidentiary value of a formal decision of a NCA regarding national courts, but also on the court of another Member State. The article deals with the main issues and arguments presented in the general debate on the binding effect of national competition law decisions, and provides a closer look on this topic with regard to specific CEE countries.

The Principle of Liability in Private Antitrust Enforcement in Selected European States in Light of the Implementation of the Damages Directive into the Polish Legal System

In the vast majority of European countries, private antitrust enforcement falls under general rules of civil law. One of the issues to be discussed in relation to this type of litigation is the principle of liability, which exists in the given legal system, and its presumed impact on private enforcement. This problem has been debated in the course of the implementation works on the Damages Directive into the Polish legal system. A discussion on the principle of liability has taken place at least twice in this context. First, the issue was considered by the Civil Law Codification Commission and expressed in its Assumptions behind the Draft Act on complaints for damages caused by the breach of competition law. Subsequently, the principle of liability was assessed again at the reconciliation conference held at the Ministry of Justice. This is but a part of a broader discussion about the relationship between the rule of liability existing in national laws being applied to private enforcement cases and EU law as well as limitations arising from the latter. After outlining this interplay, the paper will briefly introduce solutions adopted with respect to the principle of liability in the context of private enforcement in selected European countries. The selection is not random, despite the fact that a limited number of countries has been analysed – eight including Poland. These include the most advanced EU Member States when it comes to private antitrust enforcement (such as the UK, Germany or the Netherlands), along with less developed examples (such as Italy or France), and even underdeveloped countries when it comes to the number and popularity of private antitrust litigations (such as Lithuania and Poland). This sort of analysis paints a relatively comprehensive picture of the adopted solutions in relation to the principles of liability governing private enforcement cases in Europe. The same is true for the issue of the burden of proof and presumptions/binding power in civil proceedings of decisions issued by competition authorities. Furthermore, what seemed to be crucial for the drafters of the Damages Directive, this sort of analysis makes it possible to formulate certain conclusions with respect to the relationship between the effectiveness of private enforcement in a given State and the adopted principle of liability. The final conclusions understandably focus on the Polish example, that is, the implementation of the Damages Directive into the Polish legal system.

Definition of the parties in the retail sale and purchase agreement

In the article the authors examine the peculiarities of legal status of the parties in the retail sale and purchase agreement. The authors analyze the peculiarities of consumer protection in the sale and purchase relations on the basis of current legislation. Actuality of the purchase and sale retail contract as an institution of civil law indicate the necessity to improve its legal regulation and grows due to expansion extent of its usage, narrowing of regulating sphere of this contract by administrative methods, licensing principle realization of regulatory relations and in the context of improving consumer protection. The authors made a conclusion that contraction of purchase and sale contract in the retail trade network has certain peculiarities compared to the general rules of civil law, as from the correct purchase and sale contract conclusion, determine by parties its content may depend on the possibility of implementing of rights protecting by consumers.

THE JUDICIAL PROTECTION OF REGISTERED INDICATION OF GEOGRAPHIC ORIGIN

The contemporary judicial protection of registered indication of geographic origin in the Republic of Serbia is regulated allroundly. It means that authorized user of registered indication of geographic origin may be protected in civil, criminal and even special administrative court procedure. This arouses from our country orientation to join to WTO and EU for which one of conditions is to provide protection of intellectual property rights in accordance to mundane and European standards. Upon the last several years in Serbia is adopted more legal prescriptions by which the judicial protection of intellectual property rights is regulated on a proper way. The judicial protection of registered indications of geographic origin is a just a segment of mentioned regulatory process. In this paper authors deal with judicial protection from unauthorized commercial use of registered indication of geographic origin, which is noticeably wider than civil court protection, pointing critically on some inopportune legal solutions regarding criminal and administrative protection as well as on unsustainable legal solutions on civil court procedure which differentiate from general rules of civil law. As for civil law protection of registered indication of geographic origin authors propose its amendment and improvement.