Civil Law Institutions Research Articles

Договор об отчуждении исключительного права как самостоятельный институт гражданского права

Договор об отчуждении исключительного права как самостоятельный институт гражданского права

Comparative Legal Analysis of Modern Civil Law Sources in Russia, France and Germany

Based on a comparative legal analysis, the paper discusses modern approaches to the system of sources of civil law in Russia, France and Germany. The authors draw attention to the similarities and differences (in form, name, structure, content, significance) of the sources of civil law of these countries, due to objective and subjective factors, as well as features of their legal systems. It is noted that the range of sources of civil law in France and Germany is much wider than in Russia. Among the sources of civil law of these legal systems, civil codes and laws containing civil law form a common ground for the system. Current trends include significant expansion and complication of the Russian civil law system of sources and its convergence with the laws of France and Germany. The authors conclude that there is a need to systematize and consolidate the detailed system of sources of civil law in Art. 3 of the Civil Code of the Russian Federation, the adjustment of certain legal institutions of French and German civil law in order to improve Russian legislation and develop modern sources of Russian civil law and their system in the context of combining the experience of French and German law with domestic legal traditions.

Convention on the Rights of the Child and some aspects of civil law and family law

The aim of this paper is to have a look at some institutions of civil law and family law in the light of the requirements of the Convention on the Rights of the Child, on the occasion of the 30th anniversary of this Convention. The child’s incapacity or limited capacity to act, the child marriage and the child’s right to be heard shall be envisaged from a legal historical perspective with a special regard to the age-limits and the modifications of these age-limits on the field of civil law and family law. The subject of the historical overview is the concerned regulations of Hungary, namely the changes in the Hungarian legal rules and the regulations of the effective Hungarian Civil Code which entered into force in 2014. The paper would like to provide a guide for a travel from the end of the nineteenth century to today’s legal rules on the field of age-limits in connection with the above-mentioned institutions which designate the child’s legal position concerning some children’s rights. Some issues of the judiciary concerning the child’s right to be heard in family law proceedings will be mentioned as well to highlight a problem of the everyday legal life. The final aim of this historical travel is to discover whether the discussed legal rules being in force today meet the requirements of the Convention on the Rights of the Child and to compare the legal attitude behind the effective legal rules and the attitude of the child-focused thinking, which shall be also analysed.

О проблемах корпоративных правоотношений в гражданском законодательстве Республики Таджикистан

In the framework of this article, when considering corporate legal relations, their civil-legal component is presumed, which is based on the part of the internal relations of a legal entity existing in corporate organizations, associated with participation in these organizations or management of them. In this regard, it is proposed to consider corporate law as a special institution of civil law, the rules of which regulate civil relations in corporate organizations or their management, arising primarily between the founders of a corporate organization, as well as between the corporate organization and its founders. At the same time, having analyzed the legal status of participants of intraorganizational corporate legal relations, it is noted that due to the lack of some of them the status of the subject of civil legal relations, not all non-prohibited by law intraorganizational corporate legal relations aimed at achieving both common interests and pursuing private individual interests of members of corporations can be civil legal relations.

ОСНОВНЫЕ УСЛОВИЯ И ЭТАПЫ ВОЗНИКНОВЕНИЯ КОНДИКЦИОННЫХ ОБЯЗАТЕЛЬСТВ В РОССИЙСКОМ ГРАЖДАНСКОМ ЗАКОНОДАТЕЛЬСТВЕ

The article considers the process of formation of the institute of conditioning in Russian legislation since the 19th century. Certain aspects of making court decisions on compensation for damage due to unjustified enrichment in pre-revolutionary Russia are covered. The author analyzed the legislation of Russia in the prerevolutionary periods, the Soviet and modern period in the field of conditioning obligations, which made it possible to form the main concepts, signs, factors and conditions for their emergence. Before the introduction of a separate chapter in the Civil Code of the RSFSR of 1922, devoted to obligations arising from unjustified enrichment, this issue was not regulated by law, court decisions were made on the basis of law governing similar legal relations. In the development of civil law, the question arose of distinguishing conditional obligations from related civil law institutions. For this purpose, the grounds and conditions for the emergence of obligations due to unreasonable enrichment were determined.

Civil legal aspects of the recodification of intellectual property rights

At the present stage those questions are especially relevant that are connected with civil legislation and intellectual property institution recodification. Intellectual property covers all fields of activity, in particular, agro-industrial, chemical, mining and other industries. The article defines that in Ukraine the necessity of civil legislation recodification includes the ridding of all explicit collisions. Also, it includes the implementation of the world’s best experience in civil relations regulation and its stability and in definition of the direction of the further normative and legislative development. The main directions of recodification of the Institute of Intellectual Property as one of the key civil law institutions of Ukraine are identified in the context of the article. The directions of improvement of legal norms, guaranteeing the inviolability of intellectual property rights, providing them with greater juridical security and their further rationalization are also determined in the context of the article.

Biological Damage, as a Special Figure of Non-pecuniary Damage and Problems Encountered in Albanian Jurisprudence

Non-pecuniary damage is one of the institutes of civil law that aims to protect and restore the rights of personality laid out in certain provisions of the Constitution of the Republic of Albania and expressly referred to in Article 8 of the European Convention on Fundamental Human Rights and Freedoms. Judicial jurisprudence has rendered non-pecuniary damage in the case of health damage, physical or psychological integrity in three separate types of damage: biological damage, moral and existential damage. The subject of this paper will be one of the figures of non-pecuniary damage, biological damage or otherwise called damage to health, being a matter of little or no treatment and the problems it faces in Albanian jurisprudence. One of the topics to be dealt with in this paper is the manner and criteria for calculating health insurance compensation, a topic that has met discussions about the actual value of the compensation or the value of the expected income that the injured party or relatives should receive from social insurance. In the provisions related to the value of the compensation coverage, insurance laws and bylaws foresee certain limitations, not only in the method of calculating non-pecuniary damages, but also with regard to the minimum amount of insurance coverage by the insurance companies. Referring to Albanian court practices there have been cases where there has been discrepancies in the calculation of biological damage between the insurance companies and the court.

Contribution to the Process of Unification of European Private Law

This monographic issue includes several papers related to some questions of Private Law, which are addressed, mainly, from the perspective of European Law but also of Comparative Law. The subjects are diverse and, apparently, without connection, since some address issues related to the new social reality in which we live, related to the information society and unfair business practices; and others deal with traditional institutions of Civil Law, such as prescription, which is subject to review. All of them, however, have a common feature, which is the dogmatic and practical interest of the matters dealt with, and their contribution to the unification, understood in a broad sense, of European Private Law.Published online: 31 October 2019

Contribución al proceso de unificación del Derecho privado

Este monográfico incluye varios trabajos relacionados con cuestiones de Derecho privado y que se abordan, fundamentalmente, desde la perspectiva del Derecho europeo aunque también del Derecho comparado. Las materias tratadas son diversas y, aparentemente, sin conexión entre sí, pues algunas abordan cuestiones surgidas de la nueva realidad social en la que vivimos, relacionadas con la sociedad de la información y las prácticas comerciales abusivas; y otras versan sobre institutos tradicionales del Derecho civil, como la prescripción, que es sometida a revisión. Todas ellas, sin embargo, tienen un rasgo común, que es el interés dogmático y práctico de las materias tratadas, y su contribución a la unificación, entendida en sentido amplio, del Derecho privado europeo.Publicación en línea: 31 octubre 2019

Kłamanie jako akt mowy – kilka uwag z perspektywy filozoficzno-prawnej

W artykule przedstawiono zagadnienia dotyczące analizy natury (istoty) kłam­stwa z perspektywy pragmatyki logicznej. Wnioski skonfrontowano z wybranymi instytucjami prawa cywilnego w celu wykazania, jak prawo i orzecznictwo postrzegają różne formy kłamstwa, występujące na gruncie prawa pozytywnego.

Instytucje dożywocia oraz odwróconego kredytu hipotecznego w świetle ich funkcji alimentacyjnej

In recent years, the demographic situation in the Polish society, has undergone significant changes. The average life expectancy has increased, resulting in an increase in the number of people in the post-working age. Due to the need to provide the elderly with the means to meet their living needs, discussions are being held on which civil law institutions can meet this objective. According to the author of the article, such institutions are considered to be life estate and a reverse mortgage. Both these institutions serve to release the “accumulated” capital in real estate, which may constitute an additional source of income for the elderly.

Practical Implementation of the Principles - Constituents of the Rule of Law in Civil Relations

The article deals with the research of issues related to the implementation of the rule of law principle in civil relations. The authors reveal the peculiarities of the implementation of the principles - components of the rule of law in certain institutions of civil law. The rule of law is one of the fundamental principles not only of lawmaking but also of law enforcement. The complexity and versatility of this phenomenon necessitates its disclosure in relation to other legal principles that exist as its component. Among the principles there are constituents of the rule of law, as defined by the Venice Commission in the Rule of Law Checklist, the principles of subsidiary, proportionality, legal certainty, equality before the law, etc. These principles have their own peculiarities of implementation in civil legal relations. Therefore, the principle of subsidiary is a guarantor of personal freedom and a requirement for state institutions to recognize the priority of human rights and interests. The principle of proportionality is a requirement for authorities not to impose on citizens obligations that go beyond the limits of public necessity, and to take maximum account of private interests; setting goals and choosing the means to achieve them, to maximize the possible consequences of such actions. This principle is actualized in property relations, since the exercise of property rights is an important means of realizing personality. The principle of popular sovereignty in action creates the preconditions for self-realization of the population, the existence of mutually beneficial relations between legally equal, independently independent, autonomous subjects of private legal relations. The principle of legal certainty in civil legal relationships is implemented through the requirement of civil law to meet the criteria of accessibility, predictability, sustainability and consistency of legal requirements. The value of this principle lies in legal certainty, the protection afforded by all parties to a civil legal relationship, provided that the state respects that principle. The principle of equality before the law is implemented in civil law by ensuring the formal equality of virtually unequal subjects, impartial reconciliation of interests. Equality before the law, non-discrimination is a requirement of anti-discrimination legislation, guaranteeing the prescriptions of the right of non-discrimination.

The Principle of Good Faith in Civil Law Institutions

The Principle of Good Faith in Civil Law Institutions

Historical Foundations of Development of the Institution of Employment Contract

This article describes the periods of development of the legal institution of employment contract in Russia. The characteristic features for each of them are defined. The first period was the longest and was marked by develogment of the contract of personal employment as the origin of the modern institution of employment contract. In the second period, the contract of personal employment represented the institution of civil law, and later became the subject of study of the civil law science. At that time the industrial law of the country was forming. A distinctive feature of the third period was the adoption of codified acts, as well as differentiation in the legal regulation of labor relations of temporary and seasonal workers. The fourth period is characterized by changes in state-legal methods of economic management. With the adoption of the Constitution of the Russian Federation labor legislation was assigned to the joint jurisdiction of the Russian Federation and its subjects. It is concluded that the adoption of the Labor Code of the Russian Federation necessitates a more accurate study of the problems arising in the application of specific rules of law governing the peculiarities of labor of certain categories of workers (for example, labor relations with persons with disabilities are not yet perfect because of the youth of the labor law), conflict of laws issues arising in practice, contradictions that occur in a huge array of legal documents not only in labor law, but also in other branches of law.

Konwencja ONZ o prawach osób niepełnosprawnych w interpretacji Komitetu do spraw praw osób niepełnosprawnych a podstawowe instytucje prawa cywilnego

The article presents a critical analysis of the interpretation of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) approved by the Committee on the Rights of Persons with Disabilities, according to which interpretation substitute decision-making regimes are excluded in all and every case. The above assumption, apart from major doubts as to its justifiability and expediency, has very far-reaching consequences from the point of view of the Polish civil law. The notion of legal capacity adopted in the Convention on the Rights of Persons with Disabilities resembles the approach found in common law systems. In continental legal systems (in particular those based on the German tradition, like the Polish system) it has a completely different character: a dogmatic one, whose construction is linked to the concept of a juridical act. It is one of the reasons why complete severing of the link between mental capacity (capacity to make decisions) and legal capacity (understood as the not only passive capacity, but also active capacity), postulated by the Committee on the Rights of Persons with Disabilities is very difficult, if not impossible, to introduce. Adopting the proposed conception leads to a decomposition of fundamental civil law institutions, such as juridical act and defects of a declaration of intention, while giving rise to doubts from the point of view of possession or fault-based civil liability. The article presents a competing model of interpretation of Article 12 CRPD, pursuant to which application of substitute decision-making, to a limited extent, while observing the safeguards provided for in para. 4 of said article, should be considered permissible.

Rozwój zakresu przedmiotowego ochrony dóbr osobistych w świetle społecznych wyzwań XXI wieku

Development of the scope of the subject protection of personal interests in light of challenges of the 21st centuryOne of the greatest and most important challenges of private law in the 21st century is the adaptation and evolution of key institutions to the consequences of social or economic development. An extremely interesting process in this context is the development of the scope of the subject protection of personal rights. The aim of the article is to discuss this phenomenon, with particular emphasis on the influence of the literature and jurisprudence on extending the scope of the subject of personal rights. The author also draws attention to the way in which the concept and scope of personal rights were developed and modified, citing and discussing the most important positions and doctrinal disputes. In addition, an example was presented, which serves to illustrate the analyzed trend. It is the potential recognition of violations related to the low level of air quality in Poland covered by protection under the provisions on personal property. The author describes this issue, taking into account the provisions of European law, through Polish regulations and positions of the literature, formulating his own predictions about the future of this particular problem, emphasizing its importance. This reflection illustrates how the discussed civil law institution undergoes modification as a result of the social challenges of the 21st century. In the elaboration of the above issue, scientific methods were used, such as: analysis of judicial decisions, normative acts — both domestic and European ones, in addition the dogmatic method was used. Numerous conclusions have been derived as a result of the analysis, among other things — an indication of universality as one of the greatest achievements of doctrine. This dependence results from the fact that new private law challenges can be assessed through the prism of universal institutions that have already been created, only by modifying them, developing or deliberating on how to use them. The tendency described in the work can be extended to a range of other contemporary challenges before courts, but above all to the legislator.

Контрактная система закупок как институт гражданского права

Контрактная система закупок как институт гражданского права

ANÁLISE DA SITUAÇÃO JURÍDICA DO PORTADOR DE DEFICIÊNCIA MENTAL NO DIREITO CIVIL HOJE

Com a promulgação do Estatuto das Pessoas com Deficiência - ou simplesmente EPD – houve alteração de muitos institutos do Direito Civil, inclusive a deficência mental das hipóteses de incapacidade absoluta e relativa. Com essa supressão, tem-se que a legislação atual trata as pessoas com deficiência mental capazes em regra e, por meio de processo de curatela e a título de exceção, elas podem se tornar relativamente incapazes. Assim, foi investigado nesse artigo se as alterações quanto à incapacidade das pessoas com deficiência mental representaram para tais pessoas uma desproteção jurídica. Concluiu-se que a novel legislação representa um avanço normativo em relação à promoção da pessoa com deficiência mental e foi identificado que a ausência da previsão de as pessoas com deficiência mental poderem ser tratadas como absolutamente incapazes pode representar uma desproteção jurídica às mesmas.

THE CODIFICATION OF CIVIL LAW IN THE PEOPLE'S REPUBLIC OF CHINA (GENERAL PROVISIONS): HISTORY AND MODERNITY

In this article, the author highlights the main historical stages of the codification of civil legislation in China, reveals the content of the "General provisions of the civil code of the PRC", which entered into force on October 1, 2017, predicts further prospects for the development of Chinese civil law institutions in modern economic conditions The author analyzes the historical stages of codification of a large array of Chinese civil legislation in the twentieth and early TWENTIETH centuries, shows its focus on borrowing Russia's experience in codification and improvement of civil legislation, and also takes into account international obligations related to the participation of the state in the WTO. The current doctrine that the Civil code is a kind of economic Constitution that is constantly evolving, not only in time but also in space, shows that in China the process of reforming civil legislation is slow and haste. Thus, it is significant that the procedures related to the preparation, discussion and adoption of the civil code of the PRC have historically developed over time: from the past to the present and, of course, to the future with the prospect of solving new social and economic problems on the basis of stable codified laws. Until now, the science of Russian civil law has not received full coverage of the processes of reforming the civil legislation after the formation of the people's Republic of China in 1949, and there is no answer to the legitimate question of, and for what reason have not been adopted by scientists developed the Draft Civil code of China (1954), (1962), (1979), (2002)? The author understands the complexity of the topic, but also draws attention to the fact that in recent years, between civil scientists and practitioners of China and Russia there is a tendency to intensify the development of General provisions and institutions of civil law in the context of international cooperation. But the question of whether it is possible to identify the stages of codification of the civil legislation of Russia and China is still open, because the historical features of China, the mentality of its citizens and traditions do not allow full use of the experience of Russia, which at one time proposed a new unified text of the Civil code in the context of WTO accession. The author focuses not only on the problems of understanding the historical stages of reforming China's civil legislation in time, but also its features in the space, when the codification of the General part and institutions of civil law is under the influence of the formation of a common judicial practice in a market economy. In the course of the research the author used analytical, formal and legal methods, abstraction method, which allowed to formulate conclusions on the conducted research. The author comes to the conclusion that the codification of civil legislation in China has a common historical relationship with Russia, but at the same time, and distinctive features, which are expressed in the content of the "General provisions of the civil code of the PRC" (hereinafter - the civil code of the PRC), which entered into force on October 1, 2017.

Konfessionell gebundene Ehehindernisse im österreichischen Allgemeinen Bürgerlichen Gesetzbuch. Strategien zur Umgehung des österreichischen Eherechts

Among the institutes of Austrian civil law, no other institute has been exposed to attempts of amendment more often than marriage law: One of the main targets of these attempts, which were made in the course of the 19th century, was the abolishment of marriage impediments based on denomination; mainly, the discussion focused on whether the dissolution of a Catholic marriage during the lifetime of the spouses should be allowed or not. Until the end of the 19th century, Austria with its denominationally discriminating marriage law was surrounded only by states in which – regardless of denomination – the divorce of a marriage was generally only permitted in the case of a re‐marriage of both spouses. Even at the end of the 19th century, this was generally applied in countries such as Hungary and Germany. To expand the scope of the application of German or Hungarian marriage law to Austrian Catholics who intended to undertake a re‐marriage, one had to resort to changing domicile and citizenship. Apart from this marriage impediment, which (in accordance to § 111) was only applicable to Catholics, the Austrian Civil Code contained another marriage impediment based on denomination: disparity of cult, i.e. cases where one spouse was of Christian confession and the other of a non‐Christian one (§ 64); de facto this provision mostly applied to cases where one spouse was a Christian and the other Jewish. In the following, we will mainly consider the problems that arose for spouses who were not able to circumvent the stringent regulations of Austrian marriage law when they attempted to get married in a foreign state. Special attention is devoted to the judicial practice of the Austrian Supreme Court and its legal assessment of such marriages.