Civil Law Institutions Research Articles

OBLIGATION LAW: PAST AND FUTURE

In the article, based on looking at the past and future of the law of obligations, which is an important institution of civil law, along with the explanation of various views on this matter, its emergence is evaluated from a historical approach. As well as the rules of the ancient contractual obligations of the Uzbek people, a comparative analysis of the concept of an obligation exists in the civil legislation of national and foreign countries. Based on the analysis, suggestions will be put forward to improve the norms of the Civil Code of the Republic of Uzbekistan on the concept of obligation.

Methods of enforcing obligations and the astrent institute in civil law of Russia

The formation and development of human society, the deepening, expansion and complication of economic, economic and interpersonal relations between interacting subjects, as well as a high degree of integration and convergence of modern political, economic and legal systems of various states inevitably entail the formulation of significant scientific problems and challenges for researchers in a wide variety of fields. In this sense, the doctrine and practical implementation of the branch of civil law are no exception: the rapidly changing conditions of economic activity and trade and economic turnover naturally force the legislator and the scientific community to search for new, more modern and relevant instruments of legal regulation of a wide range of civil legal relations between subjects that in essence, they form the economic turnover within a particular society and state. This trend, with varying degrees of intensity, affects all sub-sectors and institutions of civil law, including ways to ensure civil law obligations: undoubtedly, today there are many ways for development. Ensuring the proper performance of civil obligations by the subjects of civil law is one of the most important and, as a result, controversial, problematic issues both in domestic and foreign civil law doctrine and in extensive law enforcement practice. In this regard, of central importance is the scientific consideration and study of specific ways to ensure the fulfillment of obligations, many of which are gradually being legally enshrined in the legislation of the Russian Federation. At the same time, due to the lack of real practical experience, as well as the insufficiency of doctrinal sources, the essence of many of them, as well as the relevance and necessity of their application, causes serious disagreement among the scientific and professional legal community. One of these institutions at this stage is the institute of astrent. The article is devoted to the consideration of some problematic aspects of determining the theoretical essence of astrent, which may affect subsequent clarifications or changes in the text of the relevant regulatory legal acts of the Russian Federation. The aim of the work is an attempt to determine the theoretical essence of the institute of astrent in connection with the dual nature of its most significant legal features.

Социальные сети как правовой феномен

The emerging institution of legal regulation of social networking in different states appears in different ways. The comparative legal method of the studying made it possible to select two models: western (USA, Germany, France) and eastern (China). The Western model of legal regulation comes from “freedom of networked battlefield” and “freedom of speech”, the eastern one comes - from the “information security priority” and “deanonymiration of social networking”. Relations in the social networking have acquired independent features: big freedom of expression, a culture of clip thinking, “rudeness” in the relationships as the norm, as an impossible to nobility to identify the subject and the lack of responsibility. Under the studying of social networking, researchers form the conceptual provisions of “digital life” and “digital death” of personality. In Russia, the main problems of regulation social networking are the lack of legal definitions of the concepts “social networking”, “account”; industry uncertainty of public relations, which from in the social networking; a low level of safety for minors and the elderly people. It is proposed to consider social networking as public relations as an intersectoral legal institution of civil, labor, administrative and criminal law, also as procedural industries; legalize concept “social networking” and “account”; establish information security filters for minors and elderly people.

Wątpliwości i ryzyka wynikające ze współpracy gmin w ramach instytucji porozumienia międzygminnego

The article discusses the commencement of cooperation by communes in the form of intercommunal agreements, which in principle allow to optimize the implementation of statutory obligations related to the performance of specific public tasks by communes. Due to the rudimentary nature of regulations, both the doctrine and jurisprudence, there are many doubts related to the qualification of these agreements as institutions of civil or administrative law, including whether they are acts of local law. This results in risk on many levels, ranging from their correct announcement, through the pursuit of claims, to the end of their legal existence. This institution is a promising form that allows municipalities to perform their tasks based on the best effect mechanism by establishing cooperation between municipalities achieving results in the implementation of specific public tasks. In practice, it is not particularly popular due to a number of doubts and risks arising from the residual statutory regulations.

Application of Factoring in Business Operations

Assignment of receivables as an institution of current civil law is rooted in ancient legal systems. The abovementioned institution was introduced to the Polish legal system under the Code of Obligations of 27 October 1933. This solution occurs in various specific forms serving various legal and economic goals, beginning with the satisfaction of claims of individuals, to securing a claim, to improvement of financial liquidity of the assignor. Thanks to the constant development of the above legal institution it functions in numerous legal systems and constitutes a real support in securing business transactions and making them more efficient.

Az elévülés intézményéről a bírói gyakorlatban

The aim of this publication is to present one of the legal institutions of Hungarian civil law, the statute of limitations, and its legal effects, with special regard to the calculation and the expiration of the statute of limitations. Through concrete court case decisions, I intend to highlight which grounds, according to the applicable judicial practice, are considered to be “excusable grounds” to be examined in the course of the statute of limitations and not listed in the law, with special emphasis on court decisions that were made in the course of the relationship between the out-of-court negotiations and the discussions between the claimant and the debtor, and the statute of limitations.

ANALYSIS OF THE RELATIONSHIP OF MORTGAGE LENDING AND REAL ESTATE MARKETS IN RA

At the same time, real estate and mortgage lending markets are particularly sensitive to external shocks, especially currency market fluctuations, military conditions, political instability, etc. The real estate and mortgage lending markets have been and remain the subject of study by Armenian and foreign specialists and experts. Mortgage is one of the oldest institutions of civil law, which has been transformed and improved over a long period of historical development. Currently, the mortgage has reached the highest level of development, retaining its original name, that is, being one of the most reliable forms of loan security

О ВОЙНЕ И ЕЕ ЗНАЧЕНИИ ДЛЯ ГРАЖДАНСКИХ ПРАВООТНОШЕНИЙ: АНАЛИЗ ИСТОРИЧЕСКОГО ОПЫТА ПРАВОВОГО РЕГУЛИРОВАНИЯ ГРАЖДАНСКОГО ОБОРОТА ВО ВРЕМЯ МИРОВЫХ ВОЙН ХХ ВЕКА C РЕШЕНИЕМ НЕКОТОРЫХ АКТУАЛЬНЫХ ПРАКТИЧЕСКИХ КЕЙСОВ

Based on the experience of the world wars of the twentieth century, the author examines approaches to the adaptation of the main institutions of civil law when used in times of war, draws conclusions about the applicability of individual solutions found to the situation of the geopolitical crisis associated with a special military operation in Ukraine. The article contains practical advice on the implementation of legal assistance in the field of civil relations to mobilised citizens and members of their families.

Frustration of purpose due to change of position: Experiences of the “mixed jurisdictions”

The article analyses the problem of change of position and frustration of purpose in “mixed jurisdictions”. Frustration of contractual purpose is the doctrine that is known in English law and derives from the so called “coronation cases”. At the same time frustration of contractual purpose is a particular case of subsequent change of external situation. The author systematically considers the issue in the civil law of Louisiana and Quebec. Louisiana and Quebec are “mixed jurisdictions” that harmoniously combine elements of civil law and common law. But today mentioned legal systems solve problems of change of position and frustration of purpose with the help of traditional institutions of civil law: impossibility, force majeure and the doctrine of cause. In practice it leads to that the issue of the influence of change of circumstances and frustration of contractual purpose on obligations becomes stubborn. The reason of it is the objective unsuitability of mentioned doctrines to the issue. Therefore, we need to mention the experience of Argentina. Argentina is not a “mixed jurisdiction” but its Civil and Commercial Code reformed in 2015 harmoniously combine elements of civil law and common law with the aim to solve practical problems. The Civil and Commercial Code of Argentina provides rules not only about subsequent extraordinary change of position and its consequences but in the single article regulate frustration of contractual purpose. Frustration of contractual purpose in Argentina is closely connected with the doctrine of causa. Therefore in the framework of the doctrine of frustration of contractual purpose both the typical purpose of contract of certain kind (i. e. cause in civil law) and the motive that is unique for each contract have legal sense. Recognizing in the Civil and Commercial Code of Argentina the legal sense of party’s motive for entering into contract Argentina in fact departs from the canons of continental law that doesn’t recognize the legal sense of such motives.

Application of civil law institutions in customs practice

The article deals with the issue never explored before in Russian legal research: the application of civil law provisions to the regulation of several types of relationships in customs practices. The issue is acute as with the changes in civil law it is necessary to find out whether we need to synchronize with this process the other branches, seemingly not related to civil law. Moreover, the article gives another case in point to the current process of mutual integration in different spheres and branches of law. The authors expand upon the concept of the complex and predominantly public nature of customs legislation and attempt to find out, what limits the civil law has when dealing with the customs regulations. Another interesting point is the interaction between customs and civil law when applied to relations between businesspersons and customs bodies and officials. The article analyzes particular features of representation, storage and warehousing, pledge and guarantee, insurance, when applied in customs practices and the regulation thereof in customs laws. The research uses comparative methods, showing similarities and differences in the approach of the relevant customs regulations in Russia, foreign countries and integrating units such as EU and EAEU. The authors conclude that customs laws and regulations constitute a perfect example of combined use of legal instruments related to different law branches and of different nature for the sake of efficiency of the influenced and regulated system.

Teaching the block of private law disciplines in the master's degree: new challenges in the conditions of the reform of legal education and distance learning

The article is devoted to the theoretical-applied analysis of the key aspects of the application of the latest methods of teaching the block of private law disciplines in the master's degree in the conditions of the reform of legal education and distance learning in Ukraine. The authors of the article emphasize the need to combine three main components when teaching private law disciplines: 1) characteristics of modern civil legislation; 2) studying the doctrine of civil law; 3) practices of its application. It is pointed out the need to apply the positive experience of the leading EU countries when teaching sectoral legal disciplines; the need for an in-depth analysis of the practice of the European Court of Human Rights; characteristics of civil law institutions in the context of comparative jurisprudence. It is pointed out that classes should be fundamentally problem-based with systematic analysis and analysis of scientific publications. Emphasis is placed on the unique importance of involving students in scientific circles of a civic orientation, participation in conferences and other events of a scientific and practical nature. The prospects of strengthening the practical component during the training of future lawyers through the involvement of practicing lawyers in the educational process were analyzed in detail; changing approaches to the internship process and student practice; reforming the activity of legal clinics with the aim of forming professional competences of the future lawyer in accordance with the Law of Ukraine "On Higher Education". Investigating the issues of distance education in obtaining a legal education, the authors emphasize the relevance of measures taken in the educational process during air raids in wartime conditions and state the perspective of the mixed form of education as a format for the training of future lawyers, which allows to adapt to various unstable and ambiguous conditions, including in the conditions of martial law in Ukraine.

Banking contracts in the system of civil law contracts

The article attempts to determine the place of bank contracts in the system of civil law contracts on the basis of the current legislation and the points of view existing in the legal literature. It is noted that an indicator of the relevance and low development of this research topic is that, despite the presence of a fairly wide range of research on certain types of obligations and contracts, the issue of determining the place of banking contracts in the system of civil law contracts remains insufficiently developed.It is argued that the system of civil contracts contains a special group of contracts, the execution of which is directly the subject of banks' activities (lending, attraction of deposits, settlement operations, etc.).The peculiarity of these contracts is that the bank is always one of the participants in the transaction, and the subject of legal actions, as a rule, is money. Banking contracts have a civil-law nature, since as a result of the application of administrative-legal norms, although public-law relations arise, such legal relations exist in parallel with private-law ones and do not intersect with them.
 It is emphasized that banking contracts have a civil-law nature, since as a result of the application of administrative-legal norms, although public-law relations arise, such legal relations exist in parallel with private-law ones and do not intersect with them.
 The signs that characterize bank contracts as a private-law category, which occupies a rather important place in the system of civil-law contracts, are determined.
 The issue, which has been the subject of discussions for a long time and is related to the classification of banking contracts as service obligations, is considered.
 The legal nature of banking contracts was analyzed, based on which it was concluded that regardless of the degree and nature of state intervention in the activities of banks, banking contracts were and remain an institution of civil law, as they always lead to the emergence of property relations based on the principles of legal equality of its participants.

Legal Regulation of Smart Сontracts

The article discusses the concept, main features and scope of smart contracts, and their relationship with traditional institutions of civil law. Smart contracts can find applications in almost all areas of life in the future. As is often the case with new technologies, the use of smart contracts also raises a number of law issues. Blockchain technology allows not only to create new means of payment, but also to autonomously manage almost any process. It can be used for individual contracts and even the creation of entire autonomous decentralized systems. In this regard, the main purpose of this study is to resolve the question of whether smart contracts are contracts in the legal sense, how they arise, how they should be classified according to the law of obligations, and what are the consequences of default. Against this background, the task of the author of this article is twofold. On the one hand, we are talking about the presentation of the main features of smart contracts in general terms, while, in addition to the advantages and functions, areas of application are of particular interest. After that, an attempt will be made to introduce smart contracts into civil law, which, in addition to the main issues of enforcement and contracting, will touch on some subsequent issues. As a result, it will become clear that civil law in general is well suited to smart contracts. However, there is some area of uncertainty, so additional legislative changes should be considered. To achieve the goal of the study, the author used empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic. Private scientific methods were used: legal and dogmatic and the method of interpretation of legal norms. The author comes to the following conclusions. Smart contracts are programs that carry out legally significant actions according to predetermined algorithms and are suitable for contractual relations. From a legal point of view, smart contracts can either be the subject of a contractual agreement, or generate it on their own.

ПРАВО ВЛАСНОСТІ НА МАЙНО, ПРИДБАНЕ У ФАКТИЧНИХ ШЛЮБНИХ ВІДНОСИНАХ: СВІТОВИЙ ДОСВІД ТА УКРАЇНСЬКА ПРАКТИКА

The article is devoted to the study of the topical issue of establishing the right of ownership of property acquired in a de facto marital relationship. The preconditions for the recognition of de facto marital relations as a separate institution of family and civil law are outlined. The main approaches to understanding the status of partners in actual marital relationships are studied. Gaps in national legislation and imperfections in certain legal norms have been identified, which determine the relevance of scientific research to solve this problem. The peculiarities of the norms of the Ukrainian civil legislation concerning the settlement of the researched problems are established. It is emphasized that the right of joint ownership of property acquired in a de facto marital relationship does not arise automatically, like the right of joint ownership of a legal spouse, on the basis of the fact of marriage registration, but is established on the grounds of civil law. The peculiarities of recognizing the right of ownership of property acquired by partners who are in a de facto marital relationship under US law have been studied. It is emphasized that American case law is based on the fact that adult citizens who voluntarily live together and are in a marital relationship, as competent as others, to enter into contracts that ensure respect for their earnings and property rights.

Some Aspects of State Controlof Economic Concentrationon the Commodity markets оf the Russian Federation

Based on the analysis of legislation, the practice of its application and scientific literature, this article reveals some aspects of state control of economic concentration in commodity markets, including the categories of state control and economic concentration, highlights various approaches to the definition of the concept of “transaction execution” in antimonopoly legislation and makes specific proposals on this matter. In particular, the implementation of the transaction is proposed to be understood as the commission, not the execution of the transaction. In addition, the term “transaction” can be interpreted not as binding, but as an administrative legal fact, which has both negative and positive aspects. The positive aspects of this approach include the fact that a number of administrative transactions could be made without the consent of the antimonopoly authority, and this practice could entail the challenge of not the entire contract as a whole, but only part of it. In conclusion, the article notes that the key feature of antimonopoly legislation is the possibility of transforming traditional institutions of civil law into the sphere of public law.

Factoring Agreement Development Trends in Civil Law of Russia

The article analyzes the novelties of the civil legislation on the financing agreement against the assignment of a monetary claim (factoring agreement). It is concluded that the changes introduced have made it possible to bring domestic factoring closer to the Convention on International Factoring Operations. For greater harmonization of national and international legislation, it is proposed to fix the action of the factor for protection against the insolvency of debtors in the list of its duties. Taking into account the possibility of concluding the contract under study, which does not provide for financing of the client, the conclusion about changing the name of the contract is argued. It seems more successful to call Chapter 43 of the Civil Code of the Russian Federation «Factoring Agreement», without indicating financing against the assignment of a monetary claim. The legal nature of the factoring agreement has been comprehensively investigated. The factoring agreement and related civil law institutions are delimited. The differentiation of cession and factoring agreement is analyzed. An exhaustive list of essential terms of the contract is argued. This agreement has one essential condition – this is its object (assigned monetary claim), including the volume and conditions of the transferred obligation. The expediency in determining the rules on the form of the contract to apply the rules on the form of the cession was confirmed. The subject composition of the contract under study is determined. The position on the tripartite nature of the factoring agreement is not supported. The debtor is an important subject of factoring relations. However, it is not recognized as a party to the contract. It is proved that the factoring agreement mediates relations exclusively between business entities. The types of factoring agreement (traditional, security factoring, as well as factoring according to the collection-cession model) are named. The rules on the responsibility of the client for improper performance by the debtor of a monetary claim, depending on the conclusion of a factoring agreement with or without recourse, have been studied. The thesis about classifying the treaty as aleatory transactions is not supported.

Civil Law Institute for the Emancipation of Minors: Doctrinal Approaches to Understanding the Essence

The article considers one of the problems of legal capacity of minors - emancipation. Emancipation is a complex civil law institution that has become a novelty for Ukrainian civil law, which needs to be comprehensively studied and improved. The formation of this institution is due to several objective reasons: the rapid growth of modern youth, both psychologically and physically; developed market relations that involve minors; mass media that promote the dissemination of information. Given the above, at the legislative level, this institution was introduced into the Civil Code of Ukraine. In foreign law, the institution of emancipation has become quite widespread and is seen as the declaration of minors fully capable of reaching adulthood, the actual receipt of the person the opportunity to acquire rights and responsibilities. The nature of different types of emancipation is determined both by the grounds for its occurrence and the scope of those rights and responsibilities that a minor may acquire. Emancipation has a sectoral nature and does not apply to the full capacity of an individual, ie an emancipated person is deprived of a set of certain rights to reach adulthood. In other words, emancipation can be complete or partial. The institute of emancipation has been studied in detail by modern scientists since its introduction, but is ambiguously evaluated by them. Some scholars believe that it contributes to the acquisition of economic independence by minors, the development of their abilities in employment, that giving minors a real opportunity to exercise civil rights in full - an area that claims special relevance in the implementation of state legal policy to protect the rights of minors, others - that such a procedure can be resorted to only in exceptional cases.

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.

РАЗМЫШЛЕНИЯ О МОНОГРАФИИ В. И. ЕРМОЛОВИЧА «ОСНОВНЫЕ ИНСТИТУТЫ ГРАЖДАНСКОГО ПРАВА СРЕДНЕВЕКОВОЙ СЕРБИИ И СТРАН КОНТИНЕНТАЛЬНОЙ ЕВРОПЫ (X-XV вв.)». МИНСК: БГЭУ, 2021. 301 с.

The peer-reviewed monograph by V.I. Ermolovich "Basic Civil Law Institutions of Medieval Serbia and the Countries of Continental Europe (X-XV centuries)" examines the process of establishing civil law institutions in medieval Serbia based on the customary law of Slavic peoples, as well as Roman and East Roman private law. This factor allowed the author of the monograph to rank the law of medieval Serbia among one of the most advanced and perfect legal systems of medieval Europe in the X-XV centuries. The subject of research in the peer-reviewed work is the general and special laws of the evolution of civil law of medieval Serbia and other countries of continental Europe. The author chose the norms and institutions of Serbian law as th.

ALIMONY FUND AS A WAY TO PROTECT A CHILD’S RIGHT TO RECEIVE MAINTENANCE

The purpose of the study. In this article, the author examines the issues of theory and practice related to the need to create an alimony fund in our country as one of the ways to ensure the rights of a child to receive maintenance in the form of alimony. The need to create such a fund is due to the existing problem of timely payment of alimony to children, which is a significant violation of their property rights. The participation of the State in solving such a problem will create additional guarantees for children, ensure the realization of their right to maintenance and satisfaction of basic needs. The author comes to the conclusion that the lack of proper regulatory regulation of alimony relations in the context of the development of alimony funds indicates systemic problems in law, and as a result, in practice, in solving questions about the departmental affiliation of such funds, the essence of the funds that form its content and the possibility of applying civil law institutions to such relations.