Transfer Of Ownership Research Articles

Regarding the concept of sale of the debtor's property in bankruptcy proceedings

The article substantiates the theoretical and legal provisions on the concept of sale of the debtor's property in the bankruptcy process. It is established that at the legislative level the interpretation of the term "sale" is quite broad, because it covers the conclusion of sales not only contracts of sale. It is noted that it is impossible to identify the concept of "sale" and "sale", because the content load of the concept of "sale" is much wider than the content load of the term "sale". It is emphasized that the concept of "sale of the debtor's property in the process of bankruptcy" should be considered as a direct conclusion of an agreement on the alienation of the debtor's property. It is argued that the inclusion in the contracts, which mediate the sale of property at auction only agreements that provide for the transfer of ownership. Emphasis is placed on the fact that civil law contracts of sale and business contracts can be concluded in the same way at auctions for the sale of the debtor's property. It is emphasized that the provisions of the Bankruptcy Procedure Code establish an exception to the general rules on the form of these types of agreements and provide for the conclusion of auctions for the sale of property of the debtor in a simplified manner, ie by taking implicit actions. It is determined that the protocol on the auction and the act of acquisition of property at the auction are documents that state the fact of victory of the buyer under certain conditions. Based on the finalization of the provisions on the sale of the debtor's property in bankruptcy, its revised doctrinal definition is formulated as a stage in the process of selling the property, which involves concluding a contract of sale at auction in a simplified manner, on commission or direct alienation to the buyer.

Własność znalezisk – wybrane zagadnienia związane z cywilnoprawną sytuacją poszukiwacza zabytków

Ownership of finds – selected issues related to the civil law situation of a monument finder The subject of this paper is the analysis of the civil law situation applying to those who acquire a find in Poland (i.e. finders). Legislators have differentiated the civil and legal situation of a finder depending on whether the find is, in particular, a historical monument or an archaeological monument. The regulations governing the ownership of finds have a direct impact on the level of their legal protection. This applies especially to archaeological monuments owned by the State Treasury. The elimination of risks associated with the illegal export and transfer of ownership of archaeological artefacts acquired as a result of an illegal search should result not only from regulations of an administrative and legal nature, which are discussed in the article, but also to ensure the security of the trade in cultural goods by regulating the functioning of the art market in Poland.

ВЫКУП КАК ЮРИДИЧЕСКИЙ ФАКТ В ГРАЖДАНСКОМ ПРАВЕ

The article is devoted to the problem of redemption as a legal fact. In its external form and in its legal consequences, it represents a paid transfer of ownership of a thing and thus primarily resembles a contract of sale, so that it could be considered as a special case of it. However, at the doctrinal level, there is a completely different picture, where the redemption under its civil law regime is not only not identified with the purchase and sale, but sometimes does not even receive unambiguous recognition as a transaction. It is noted that the comparison of various options for redemption, enshrined in the norms of civil law, allows us to identify one common feature for them: in all cases, the decision to transfer ownership or to terminate the obligation (as in the case of an annuity contract) is made not by mutual will, but unilaterally. At the same time, the transfer of the right or the termination of the legal relationship in all cases is carried out on a strictly reimbursable basis. The universal property of redemption is precisely the legal effect, the emergence of a new legal relationship is only optional. Therefore, it is possible to formulate the definition of re-demption as a paid termination of a real or binding legal relationship at the request of one of the parties or a third party. In determining the redemption price, the agreement of the parties one of them is obliged to pay the agreed amount and the right to appropriate the thing from another – an obligation to provide the item and receive the agreed amount. Thus, the relation-ship of the participants in the buyout fits the description of the obligation. Moreover, the existence of an agreement between the parties indicates that this obligation is of a contractual nature. In the case of a buyout, such an integral element of the freedom of contract as the ability to decide at its own discretion whether to enter into this contract or not to enter into it is not maintained. More precisely, only one of the parties to the contract, namely the initiator of the purchase, is entitled to such a right, and this violates another fundamental principle of civil law – the equality of the participants in the legal relationship. The overall buyout model is a complex factual composition and includes the following elements: 1) the Base purchase (for example, abandoned the maintenance of cultural values, the mistreatment of animals, disagreeing with the decision of the shareholders meeting, etc); 2) treatment with the ransom demand, the transaction; 3) determination of the redemption price of: a) by agreement – a contractual obligation; b) court – ordered non-contractual obli-gation; 4) Payment of the purchase price (optional characterized proprietary and joint rela-tions, is the transfer of property to the payer; 5) Termination of a pre-existing legal relation-ship (with or without a new one).

The new “global”: the role of cargo maritime transport of goods with focus on the transportation corridor between Southeast Asia and Northwestern Europe

Research background: Our research is framed by the new institutional theory reflected in: the property rights theory [1] and transfer of ownership of goods and the transaction costs theory that might be associated with economic exchange theory. Overall, we need to consider occurrence of deglobalization and the COVID-19 crisis, which recently not just decelerated growth of the world economy, but even put it to a halt; one might conclude that (de)globalization [2] and the COVID-19 crisis are behind the new “global” [3]. Purpose of the article: We investigate the impact of connectivity between selected countries by cargo maritime transport on costs to import of 1 TEU container transporting a specific commodity in a specific transportation corridor. Methods: Our research is based on a regression analysis creating a model of UNCTAD statistics; the Liner shipping connectivity index (LSCI); and the WEF Global Competitiveness Index (GCI). We consider the Belt and Road Initiative (BRI) that converges with the global maritime transportation corridor between (Southeast) Asia/China – Northwestern Europe/EU (the North Sea Region) in this respect, bearing in mind the 2017 round of the International Comparison Program recently released by the World Bank. Findings & Value added: Our research reveals correlation of the costs to import of 1 TEU container vis-à-vis the quality and intensity of liner shipping connections and the quality of the business environment determining the transaction costs in import price. Value added of the paper is our focus on sustainable development reinvigorated by prestigious international organisations and European Union institutions.

Nationalisation and Reprivatisation of Forests in Poland after World War II

The article concerns the transfer of ownership of forest property, nationalized after World War II. It covers the process of property acquisition by way of nationalization decrees and dilemmas related to the issue of reprivatisation. Nationalization of forests throughout the country was mainly based on the Decree of the PKWN of December 12, 1944. on the takeover of some forests under the ownership of the Treasury. This decree was a supplement to the decree on agricultural reform, which initiated changes in the system and ownership after the Second World War. In a sense, it crowned the ‘task’ of nationalization, covering forests with a smaller area, not subject to the takeover under the agricultural reform decree. Different legal grounds for the nationalization of forests determined different re-privatization procedures initiated after 1989. The work includes issues proposed over the years and existing statutory solutions, as well as case law affecting the interpretation of legal norms.

Theoretical and legal aspects of understanding scientific and technical information as an object of civil relations

The author emphasizes the complex nature of legal regulation of information relations with the priority of using the tools of civil law. It is also argued that STI as an object of intellectual property rights includes such a set of features as: creative nature; originality; novelty; objective form of expression. In addition, the article proves, that information (or scientific and technical information) may fall under the legal protection of both copyright law and legislation on the protection of industrial property rights, provided that they have signs of these objects of intellectual property law. The article analyzes the basic concepts of understanding the rights arising from the objects of intellectual property rights: 1) the theory of understanding the objects of intellectual property rights as objects of property rights (the so-called proprietary theory); 2) the theory of exclusive rights to objects of intellectual property rights, including scientific and technical information. Also the author proves the correctness of the transition to the concept of exclusive property rights to information as an object of intellectual property rights, in connection with a set of such arguments: 1) the right to scientific and technical information and ownership of the thing in which it is embodied, do not depend on each other; b) when the right to scientific and technical information is transferred, there is no transfer of ownership to the form in which it is materialized; c) a thing that is a form of materialization of scientific and technical information is a document, information product, information resource, etc. The author argues that the concept of exclusive intellectual property rights is characterized by such a set of features as: a) includes both property and non-property rights to the objects of intellectual property rights; b) the absolute nature of exclusive rights; c) a specific set of powers, including: the right to use and the right to dispose of this use. d) the right to dispose of an exclusive right, exists in two forms: granting the right and transfer of the right; e) the ownership of all rights to the object of intellectual property rights only to the subject of this right.

PROBLEMAL ASPECTS OF ACTIVITY OF THE REGISTER OF PROPERTY RIGHTS ON REAL ESTATE IN UKRAINE

Property is one of the central institutions of economic relations. Namely, real estate remains one of the main means of preserving and accumulating capital. Due to the importance of real estate in public relations, any state needs to establish a special regime of legal regulation of relations related to this area. The existence of real estate in the legal field implies the need for state registration of the emergence and transfer of ownership of real estate. Problems that arise during the State registration of rights to immovable property and further work with the register complicate the process of free possession, use and disposal of their property. The stability of the economic situation in Ukraine depends on the confidence of citizens in protecting their property rights. Recently, the process of state registration of real estate rights has been constantly reformed. It is not the essence of registration actions that changes, but the names of the bodies that conduct them and the powers of these bodies. This situation does not improve the process of property registration for owners. The article examines the problems that arise during the State registration of rights to real estate and further work with the register. After analyzing these problems in the activities of the Register of Real Property Rights, a connection was established between the quality of work of the register and the protection of the rights of the owner of his property. Since the stability of the economic situation in the country depends on the protection of citizens’ property rights, this issue is quite relevant. Today, unfortunately, there are still a large number of problematic aspects that need to be analyzed and refined at both the legislative and practical levels. The article will suggest possible ways to improve the system of registration of real property rights to ensure the protection of real estate in Ukraine.

Transfer of property based on property law rules and contract law rules under forthcoming Kosovo draft-civil code

In most civil law jurisdictions, the contract is the most used derivative title for the transfer of ownership (movable and immovable property). Very often, the law of property and law of contract are seen as distinct and one can envisage their role from different legal perspectives. This is closely connected with the type of transfer system based on whether the (Austrian) causal system, (German) abstract system or (French) consensual system is applicable. Kosovo is in the process of civil law codification and the Kosovo Draft-Civil Code which has followed the application of the causal system of transfer of property and such an above mentioned interaction of these two branches of civil law is mandatory, and only with a common survey can the contractual transfer of property be illustrated. The aim of this paper is to focus solely on the influence of contract law rules in connection with the acquisition of ownership over movable and immovable property determined by Kosovo Draft-Civil Code.

КУПЦЫ И ДВОРЯНЕ ЛУГИНИНЫ: ТРИ ПОКОЛЕНИЯ ВЛАДЕЛЬЦЕВ ЗЛАТОУСТОВСКИХ ЗАВОДОВ ВТОРОЙ ПОЛОВИНЫ XVIII В.

The article presents the history of the ownership of Zlatoust mining plants by three generations of the Luginin family. It shows direct dependence of the dynamics of ownership and inheritance of plants on the vicissitudes of the family history. It is established that the founder of the Zlatoust factory farm, L. I. Luginin, relied in his business activities on the help of his son Maxim, who took over the management and control of a new part of the family business — the Ural factories in 1769. M. L. Luginin died in the middle of 1770s and L. I. Luginin was left without an assistant and a trained heir. The grandchildren of the factory owner, due to the life circumstances associated with their new noble status, character traits and age, failed to adopt the grandfather’s experience and did not become an equivalent replacement for their father. After the death of the founder, during the period of guardianship management of the factories, the middle grandson, Larion Maksimovich, showed interest in the factories, but he also died before he had been in the factories for two years. The transfer of ownership of the district to the most unworthy of the heirs, I. M. Luginin, eventually led to the exit of the estate from the possession of the family. Zlatoust factories, located far from the rest of the family’s possessions, required constant control of the owner, his participation in the management. In this case, the succession should have been manifested in the active participation of the heirs in the management of the district, personal control over the execution of orders. It is concluded that the succession of generations of the family is of great importance in the early stages of the organization of the business, when the personal control of the owner is a significant factor in the preservation of the business in the hands of the family.

Glosa do wyroku Naczelnego Sądu Administracyjnego z 21 kwietnia 2016 r., II GSK 2566/14

Gloss to the Supreme Administrative Court of Poland judgment of April 21, 2016 – case file no. II GSK 2566/14 The gloss is an analysis and evaluation of the judgement of the Supreme Administrative Court of 21 April 2016, case file no. II GSK 2566/14. In this judgement, the Supreme Administrative Court of Poland adopted a view that distance sales of alcoholic beverages, including those made via the Internet, are illegal under the current provisions of the Act on Upbringing in Sobriety and Counteracting Alcoholism. In its interpretation of the law, the Supreme Administrative Court of Poland also referred extensively to the regulations of the Polish Civil Code on the sale agreement and the transfer of ownership of the sold item. The author critically evaluates the standpoint adopted by the Supreme Administrative Court of Poland. In author’s opinion, the interpretation of the law presented in the reasons for the judgement is law-generating in nature, leading to the creation of a legal norm which is not supported by the provisions of the Act. In author’s opinion, the Supreme Administrative Court of Poland wrongly equated the notions of a sale and the occurrence of the dispositive effect of a sale agreement, wrongly assuming that they occur at the same time and in the same place, which results in the assumption that the sale of an alcoholic beverage is effective upon the delivery of its object to the buyer at the place where the beverage is to be delivered. The position taken by the Supreme Administrative Court of Poland limits the constitutionally guaranteed freedom of business activity in a manner not supported by the Act.

Zabezpieczenia rzeczowe dotyczące spółdzielni w orzecznictwie sądowym – wybrane zagadnienia

The article presents the issue of securing cooperative claims against the background of selected judgments of the Supreme Court. Such claims may be secured by establishing a mortgage, a registered pledge or the transfer of ownership for security. A cooperative, especially a housing cooperative, may be a beneficiary of such securities as a creditor. The assets of a cooperative can also be encumbered. It is not possible to establish security on a real estate with an unclear legal status. Establishing a mortgage on a separate ownership of the premises for which a land and mortgage register cannot be established is excluded. In a case of a title transfer for security, it is crucial to contractually define the mechanism of clearance for the parties and the issue of the so-called oversecuring.

SPOUSES' OWNERSHIP OF LAND: PROBLEMATIC ISSUES

The paper is devoted to the theoretical and practical problems of the spouses' ownership of land plot, especially in cases where this land plot is the personal (separate) property of one spouse, but on this land plot is built the real estate object belonging to both spouses as joint ownership. It is stated that there are several approaches to the legal regulation of civil turnover in relation to the land plot and real estate object built on the land. In particular, the concept of a single object of civil rights (usual as to European countries) and the concept of following the land plot after the real estate object built on it (usual as to Ukraine) are studied. The court practice of applying the Civil and Land Codes regarding transfer of ownership of land plot in cases on division between spouses the real estate object that is built on the land plot is analyzed. It is emphasized that in these cases the transfer is non-payable. The author argues that this approach contradicts the provisions of the Constitution of Ukraine and the European Convention for the Protection of Human Rights and Fundamental Freedoms regarding the inviolability of property rights, as it provides for free of charge (i.e. volunteer) confiscation of property from its owner against his will. The concept of a single object of civil rights is proposed to adopt in Ukraine. Regarding the distribution property between spouses, the author proposes to introduce a rule for determining the ownership of land plot as the personal (separate) property of one spouse or as joint property of both spouses that is based on the principle of the higher value of the object (land plot or real estate built on it). Accordingly, if the value of the land plot is higher, then the real estate object acquires the same legal regime as the land. Conversely, if the value of the land plot is lower, then it acquires the legal regime of the real estate object located on it. In any case, the other spouse must receive compensation due to the termination of his ownership of the share in the property.

Актуальные вопросы государственной регистрации перехода права собственности на недвижимое имущество

Актуальные вопросы государственной регистрации перехода права собственности на недвижимое имущество

ДЕМИДОВЫ НА ПУТИ К ПРОМЫШЛЕННОЙ ДИНАСТИИ: СТРАТЕГИИ ОБЕСПЕЧЕНИЯ ПРЕЕМСТВЕННОСТИ СЕМЕЙНОГО ДЕЛА

On the example of representatives of the first two generations of the Demidov family, the paper shows how one of the most successful entrepreneurial dynasties of the first half of the 18th century ensured the succession of development of the family business. The strategies of its transmission by inheritance are traced in detail. The legacy of Nikita Demidov, the dynasty’s founder, was divided according to the “Law on single inheritance” (1714): the transfer of property was conflict free, but gave rise to hidden grievances that influenced the further relations of the heirs. The division of the inheritance of the middle son, Grigory Demidov, who was murdered in 1728 and did not determine his heir, also gave rise to a long-term enmity among family members. Akinfiy Demidov’s choice of a successor with careful preparation for the transfer of the undivided industrial economy to him also turned out to be unsuccessful, since most of the heirs were not satisfied. It was only the youngest son, Nikita Nikitich, who managed to carry out the operation of transferring property rights in such a way that this transfer could be considered “equalizing”, “amicable” and therefore “sinless”. The author claims that the circumstances and forms of ownership transfer by each member of the clan influenced the strategies chosen by the other members. With this in mind, the implementation by N. N. Demidov of the option, which ensured the conflict-free transfer of the family business, is regarded as a result of taking into account the mistakes and failures of his predecessors. The influence of external factors on these processes, in particular, changes in legislation regulating the field of family law, and transformations associated with a change in the estate status of actors, is also noted.

Sale and lease of an enterprise including agricultural property. Civil law and tax problems

The article concerns the issue of the sale of an enterprise which includes agricultural real estate. It was found that the provisions of the Act on shaping the agricultural system should be applied when transferring ownership of an enterprise, which includes agricultural real estate or shares of companies that own real estate with an area of more than 5 ha. This means, the sale of the enterprise must be divided into two binding contracts, and when the State Treasury does not exercise its pre-emption right – an ownership transfer contract must be made. Alternatively, the sale of an enterprise may be split into several contracts for agricultural property and other components, but this leads to difficulties in the tax classification of the entire transaction, i.e. whether it should be taxed with civil law transactions tax or each contract for the sale of a part of the enterprise with the tax on goods and services.

Estimation of the Compensation Amount in the Process of Expropriation of Real Estate in the Republic of Moldova

Expropriation is the transfer of assets and ownership rights from private to public property, after a fair and previously determined compensation. The Constitution of the Republic of Moldova, the Civil Code and the Land Code stipulates a “fair and previously determined compensation” in case of ownership transfer. The existing legislative acts in the Republic of Moldova explain the expropriation procedure, but do not cover the estimation process of the compensations and damages caused by the expropriation. In the present study, the authors examine the existing legislative and methodological framework used in the process of estimation process of the compensations amount. The notions of “normative price” and “market price” as “fair compensation” are examined. The challenges and legislative gaps that exist at each stage of the compensation assessment process in case of expropriation of real estate are analyzed. It has been found that the national practice of estimating the damage in case of expropriation for public utility does not ensure the compliance with the principles of equivalence and fails to achieve equitable treatment of the interests of both the private owners and the public administration bodies. It has been observed that the state is damaged by the lack of certainty regarding the valuation date for the assessment of compensation, the owners by not considering some categories of losses, and both parties by the lack of methodological provisions on assessing compensation for expropriation. Based on the research carried out, the authors propose their own methodology for assessing the compensation amount in case of expropriation for public utility in the conditions of the Republic of Moldova.

A security protocol of RFID communication system based on password authenticated with provable security

Radio frequency identification (RFID) technology is a non-contact automatic identification technology. However, due to the limitations of RFID equipment, RFID technology still has hidden safety hazards that cannot be ignored. This paper presents the security architecture of RFID system based on trust chain. According to the RFID system level, the RFID equipment is layered and safely managed to construct a model that directly proves the authenticity of the logo without the need for third-party certification. A new access authentication protocol and a security association protocol supporting fast handover are proposed. Aiming at the privacy leakage of label ownership transfer, a privacy protection model for label ownership transfer is proposed. A prototype protocol for label ownership transfer based on public key encryption is presented. The results show that the prototype protocol meets the label privacy protection and is suitable for tags that support public key encryption.

Risk factors and mitigation measures in public-private water sector partnerships: lessons from the Asutifi North District, Ghana

Abstract Public-private partnerships (PPPs) are promoted as a practical option for developing countries to meet their water sector infrastructure gaps. Despite their appeal, PPP projects have been described as complex and challenging, and the water sector PPPs are particularly associated with high failure rates. Risk analysis and evaluations have been identified as critical to the success of PPPs. In this paper, we examine an on-going PPP arrangement for piped water supply in the Asutifi North District of Ghana under a Build, Operate, and Transfer arrangement. Safe Water Network will provide the supply systems and transfer ownership to the District Authority at the end of the contract. We reviewed key project documents to ascertain the measures that would minimize the likelihood of risk occurring during the project cycle. Of 11 risk factors, 7 were anticipated in the project documents. We recommend that project documents be reviewed and amended to address the unanticipated risks.

Procedures for Acquisition of Land Ownership

It is established that the right of ownership of land is a set of powers of individual entities in relation to land plots or the right to them, enshrined in the norms of law, taking into account the restrictions established by law. The subjects of land relations are characterized depending on the form of land ownership. It is proposed to understand the procedure of granting land ownership as the activity of interested persons or state bodies of the relevant levels and other entities, which is aimed at establishing the right of the relevant entity to a specific plot. It is established that the procedure for acquiring a plot of land by a person is clearly defined and includes several methods defined by law. Procedures for acquiring land ownership by a natural or legal person are analysed, depending on the methods defined by land and civil legislation. It is proposed to introduce only an electronic form of land auctions. It is established that an additional condition for the acquisition of property rights in market conditions is the positive results of the inspection for compliance with the requirements established by the land legislation of the potential purchaser or owner of the agricultural land. The inspection procedure needs to be regulated by the relevant by-law to comply with the requirements of the adopted amendments to the land legislation. The most acceptable model for the introduction of the land market is a moderately limited agricultural land market, which restricts access to purchase by foreigners and legal entities. The expediency of ensuring the proper settlement of relations when concluding agreements on the transfer of ownership of land in market conditions is substantiated. The procedure for acquiring the right of ownership of land is the process of acquiring a person, the right of ownership of land for possession, use and disposal on the terms and in the manner prescribed by law as a result of the decision of the authorized body. The classification of procedures for acquiring land ownership is carried out.

Constitutional nature and content of the right to restitution of an expropriated property

The Act of 4 April 2019 on amending the Act on Real Property Management added a provision temporarily limiting the possibility of demanding restitution of the expropriated property. On the basis of the new provision, the right of the previous owner or its legal successors to restitute the expropriated property has ceased to be of perpetual nature. This right may not be exercised, as it previously was the case, at any time, as it expires 20 years from the date on which the decision to expropriate became final. This solution should be assessed negatively, as it deepens the non-constitutional nature of the statutory mechanism of restitution of expropriated real property, which makes the demand for restitution dependent on whether the public objective has been assumed (i.e. started to be implemented). If this is the case, then, in the light of the Real Property Management Act of 1997, the restitution of real property can never be claimed, and therefore even if such an objective in the future ceases to be implemented (e.g. as a result of the end of the operation of the real property as part of a public investment). However, in the light of the constitutional arrangements relating to the guarantee of ownership, the right to restitution of the expropriated property should always be vested in the expropriated owner or his/her legal successors whenever the public objective justifying the expropriation has not arisen as well as when it ceased to be implemented. In any event, the condition for claiming restitution shall be a claim made by the person concerned and a return of an appropriate, indexed sum paid as compensation for expropriation. The constitutional principle of the protection of individual status of property of the owner results in the “conditionality” of the transfer of ownership by way of expropriation to the State or another entity. Any existence and implementation of an appropriate objective justifying the expropriation for a public purpose, grants of the ownership and its permanence on the part of these entities. As a consequence, also the possible expiry date of the claim for the restitution of the property, expropriated after the expiry of the public purpose, should run from the time of such expiry and not from the moment when the decision about expropriation became final.