Interpretation Of Paragraph Research Articles

On the possibility of compensation for moral damage in case of violation of property rights: traditional views and innovations of practice

The subject of the study is a set of approaches to the possibility of compensation for moral harm in case of violation of property rights and the approach presented in paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 15 November 2022, No. 33 "On the practice of application by courts of the norms on compensation for moral harm". The author analyses the new approach, addressing the issue of its impact on judicial practice to determine the applicability of this approach. As a methodology, the author uses comparativistics of the approaches and practice of the Supreme and Constitutional Courts of the Russian Federation until 15 November 2022 and the approach presented in paragraph 4 of the above Resolution. The main conclusions of the study are that the new approach is recognised as revolutionary compared to those previously applied. The author concludes that the new approach, despite the contradiction with the rules based on the literal interpretation of the law, is a successful combination of all the main components of the institution in question, necessary for its correct application from the point of view of the meaning and purpose of compensation for moral harm. The new approach establishes an open list of cases in which compensation is possible, but at the same time introduces a certain criterion of applicability, in order to prevent the "emasculation" of this institution as a means of defence, since the procedure for assessing the existence and degree of moral harm is subjective. And the author analyses the impact of the new approach on judicial practice, noting that this approach is not fully understood and therefore accepted by the courts, as it does not coincide with the literal interpretation of paragraph 4 of the mentioned Ruling.

О привлечении контролирующих должника лиц к субсидиарной ответственности (оговорка в Постановлении Конституционного Суда РФ по делу о проверке конституционности п. 3.1 ст. 3 Федерального закона «Об обществах с ограниченной ответственностью» от 21 мая 2021 года № 20-П)

The article touches upon the problem of attracting persons controlling the debtor in the light of the clause on the interpretation of paragraph 3.1 of Art. 3 of the Federal Law “On Limited Liability Companies”, which was made by the Constitutional Court of the Russian Federation in the Resolution of May 21, 2021 No. 20-P. In particular, the Constitutional Court indicated that the conclusion made in the Resolution of the Constitutional Court of the Russian Federation related to the subject matter of this case cannot in itself be considered as excluding the application of the same approach to the distribution of the burden of proof in cases where another subject acts as a creditor, rather than an individual, the obligation of the company to which arose not in connection with the implementation of entrepreneurial activities by the creditor. Illustrating the grounds for ambiguous interpretation laid down in such a phrase, the author concludes that a narrow approach is still preferable, when the clause is interpreted in favor of only such a creditor who is “another subject, the obligation of the entity to which arose not in connection with carrying out entrepreneurial activity”. According to the author, such a conclusion is not only consistent with the idea of fairness in the distribution of the burden of proof in terms of the status of creditors, but is generally consistent with the general prohibition on taking advantage of unfair behavior.

Отдельные вопросы практики применения норм об ипотеке в силу договора

Some aspects of the application of norms in the field of mortgages by virtue of the contract are considered: the interpretation of paragraph 1 of Article 78 of the Federal Law «On Mortgage (Pledge of Real Estate)», the problem of eviction of citizens living with the mortgagor, the legal meaning of the purpose of the loan during foreclosure on property. The article analyzes the possibility of securing the debtor’s non-property obligations with a mortgage, the risks of the mortgagee when issuing a loan (credit) amount. It has been established that regulation of both targeted and non-targeted loans secured by the pledge of housing owned by citizens is of great importance. Thanks to the analysis of the current judicial practice, it was noted that at the moment the courts do not make the decision on the foreclosure of property dependent on the intended purpose of the loan (loan); however, exactly the purpose of the loan is taken into account by the court when deciding on the eviction of the mortgagor and the persons living with him. It has been established that at this stage in the development of civil law relations, the issue of protecting the rights of citizens, including minors, who risk losing their only habitable living quarters, arises.

CONTRIBUIÇÕES PREVIDENCIÁRIAS ORIUNDAS DO CONTRATO DE TRABALHO COMO DIREITO FUNDAMENTAL: TEORIA DO DIÁLOGO DAS FONTES COMO INSTRUMENTO PARA SUA EFETIVAÇÃO

Há uma dicotomia entre o direito do trabalho e o previdenciário provocado por uma interpretação literal do parágrafo 3º, artigo 55 da Lei nº 8.213/91 realizada pelo INSS que não aceita de forma automática os efeitos das decisões trabalhistas para fins previdenciários. Criando, desta forma, um antagonismo entre os subsistemas de justiça especializada que tem potencial de gerar lacuna no ordenamento jurídico, obstaculizando o trabalhador segurado o exercício de seu direito fundamental à previdência social. Essa pesquisa foi desenvolvida a luz de uma abordagem analítica afim de identificar as lacunas provocadas por esse antagonismo normativo, e para promover a heterointegração dos subsistemas, foi proposta a teoria do Diálogo das fontes, sendo esta a relevância social desta pesquisa.

Non-State Law in Chinese Choice of Law Rules

Non-state law are norms or rules that are not domestic law of a particular sovereign country. It is a collective concept, which covers, in general, codified customs and rules, uncodified customs and rules and international conventions that stand alone without being implemented or transferred into any domestic legal systems. The issue of whether non-state law can be applied as the applicable law to decide the substantive rights and obligations in a dispute has generated debates. It has been argued by some commentators that non-state law should be treated, in private international law, as equivalent to state law, which should be able to be applied as the governing law of a contract, because lex mercatoria or other non-state norms has been frequently used in international arbitration as the governing law of an international commercial contract, because non-state law is more appropriate than national law for the purpose of international trade, and because non-state law is neutral. Opponents, however, argue that non-state law is ambiguous and uncertain and, more importantly, it may not be construed as “law” in the concept of choice of law. The status of non-state law in Chinese choice of laws has never been systematically examined in academic writings. In practice, no sufficient attention has been paid to it, either. The judgments vary largely from courts to courts, without sufficient reasoning. This issue has been ignored in the recent legislation of the new applicable law act. The final Act on the Applicable Law to Foreign-Related Civil Relations remains silence on this issue. It is unfortunate that the current uncertainty will remain for a considerable period of time until it is clarified by the relevant authorities. This article aims to explore the application of non-state law in Chinese private international law. Section 2 conducts a literal study of the existing Chinese legislation and judicial interpretation. Section 3 considers the interpretation of paragraph 2 of Article 142 of the General Principles of Civil Law (GPCL) on the status of international treaties in Chinese law and the courts’ practice in applying this provision. Section 4 examines the interpretation and application of paragraph 3 of Article 142 of GPCL, which concerns the status of customs. It is concluded in Section 5 China should adopt the general international litigation practice and only permits the parties to incorporate non-state law into contracts and enforcing them as contract terms.

TRIPS, the Doha declaration and paragraph 6 decision: what are the remaining steps for protecting access to medicines?

BackgroundThe World Trade Organisation's Declaration on the TRIPS Agreement and Public Health (known as the Doha Declaration) of 2001, and subsequent Decision on the Interpretation of Paragraph 6 reached in 2003, affirmed the flexibilities available under the Agreement on Trade Related Property Rights (TRIPS) to member states seeking to protect public health. Despite these important clarifications, the actual implementation of these measures to improve access to medicines remains uncertain. There are also concerns that so-called TRIPS-plus measures within many regional and bilateral trade agreements are further undermining the capacity of the poor to access affordable medicines.MethodsThe paper reviews policy debates among governments, nongovernmental organisations and international organisations from 1995, and notably since 2003, surrounding access to medicines and trade agreements. The provisions for protecting public health provided by the Doha Declaration and Paragraph 6 Decision are reviewed in terms of challenges for implementation, along with measures to protect intellectual property rights (IPRs) under selected regional and bilateral trade agreements.ResultsWhile provisions, in principle, were affirmed for member states under the TRIPS agreement to protect public health, numerous challenges remain. Implementation of the flexibilities has been hindered by lack of capacity in many LMICs. More intransigent have been stark inequalities in power and influence among trading nations, leaving LMICs vulnerable to pressures to permit the globalization of IPRs in order to protect broader trade and economic interests. Such inequalities are apparent in proposals or adopted TRIPS-plus measures which re-establish the primacy of trade over public health goals.ConclusionDespite being hailed as a "watershed in international trade", the Doha Declaration and Paragraph 6 decision have not resolved the problem of access to affordable medicines. The way forward must begin with a simplification of their content, to enable actual implementation. More fundamentally, once agreed, public health protections under TRIPS must be recognised as taking precedent over measures subsequently adopted under other trade agreements. This requires, above all, setting aside such protections as a basic need and shared goal from trade negotiations at all levels.

Legal Interpretation of Paragraph 242 of the Report of the Working Party on the Accession of China Under the World Trade Organization Legal Framework

Legal Interpretation of Paragraph 242 of the Report of the Working Party on the Accession of China Under the World Trade Organization Legal Framework

The Eligibility of British Subjects as Judges of the Permanent Court of International Justice

The object of the present article is to attempt an interpretation of paragraph two of Article 10 of the Statute of the Permanent Court of International Justice in order to discover, if possible, the position of the British Empire and of the British Dominions in regard to the election of judges of the Permanent Court.