Private Law Relations Research Articles

PARTICIPATION OF THE STATE IN INTERNATIONAL COMMERCIAL TRANSACTIONS (INTERNATIONAL COMMERCIAL ACTIVITY): IMMUNITY ISSUES

The article examines current trends in the development of state immunity in international commercial relations. The author characterizes and defines the concept of a commercial transaction while identifying the peculiarities of the state's participation in these relations as a subject of private international law. International legal instruments and national legislation in this area are analyzed. The author substantiates the necessity of applying limited immunity in international private law relations and places special emphasis on court practices.

Comparative characteristics of virtual assets and other objects of private law relations

Comparative characteristics of virtual assets and other objects of private law relations

Правовий статус страховика як учасника договірних страхових відносин

Despite the regulation of insurance relations by Ukrainian legislation, due attention from both scientists and legislators requires the issue of improving the legal status of participants in insurance relations, determining their place in such relations in order to effectively protect their rights and interests. The purpose of the article is to study the legal status of the insurer as a participant in insurance contractual relations, analyze existing approaches to its determination, establish the features of the insurer's legal personality and provide proposals for further improvement of legislation in this area. A characteristic feature of an insurance contract as an independent type of civil legal obligations within the group of contracts for the provision of services is that the conclusion of insurance contracts is directly the subject of activity of specially authorized participants in civil relations – insurance organizations (insurers). It has been established that the insurer, as a participant in insurance contractual relations, is a legal entity that, being specially created to provide insurance services and having received a license for this in the prescribed manner, undertakes the obligation, in accordance with the terms of the contract or an indication of the law, to provide insurance to the insured for a certain fee, to carry out an insurance payment (insurance compensation) to the insured or beneficiary as a result of the occurrence of a certain event (insured event). In insurance contractual relations, the insurer can only have a legal entity on its side, which is empowered to carry out insurance activities only after receiving a special permit (license), which indicates that legal entities - insurers have special legal personality. An insurance organization is endowed with the general legal capacity of a legal entity with a special scope of legal capacity as a financial institution. Attention is drawn to the fact that a significant factor in the modernization of the civil legislation of Ukraine today is the global trend towards unification and harmonization of private law regulation, the formation of optimal legal norms for many areas of private law relations, including insurance. In this regard, the need is justified to determine at the legislative level the requirements for the insurer when it carries out certain types of compulsory insurance, which have their own specifics and provide for the creation of increased guarantees of protection for those persons who, due to objective circumstances, are exposed to increased risk and the extension of insurance protection to cases possible violation of public interests by the method of guaranteeing receipt of insurance payment (insurance compensation). It is concluded that the recodification of the civil legislation of Ukraine opens up prospects for a qualitative update of the legal regulation of insurance contractual relations and will contribute to the development of the provision of insurance services, strengthening of legal institutions in the field of insurance, raising the standards of providing insurance services and ensuring adequate protection of the rights of participants in insurance relations

Hague choice of court convention: current state of affairs and application issues

The article provides a scientific and practical analysis of international legal aspects relating to the issue of determining the exclusive jurisdiction of a dispute by means of a choice of court agreement, which is quite relevant, since the ratification of the relevant Convention, which was signed in 2014, took place during the martial law regime, which complicates the process of implementing the provisions of the Convention in the Ukrainian legal system. The author analyses the current Ukrainian legislation in the area of determining the jurisdiction of private law relations with a foreign element, in particular, proceedings in cases related to the jurisdiction determination procedure, and international documents in the area of choice of court agreements, such as the Laws of Ukraine «On International Private Law», «On Amendments to Certain Legislative Acts of Ukraine in connection with the Ratification of the Convention on Choice of Court Agreements», the Hague Convention on Choice of Court Agreements and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The author identifies certain problems of enforcement of the choice of court agreement in the judicial system of Ukraine and issues of procedural protection of the parties to the agreement. It is noted that currently there is no definition of an exclusive choice of court agreement in national legislation and there are problems in the enforcement of a Ukrainian court decision by other states where no agreement on legal assistance has been concluded. The difficulty of applying the Convention on Choice of Court Agreements in comparison with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been proven, which may lead to differences in the practice of use among the countries that are parties to the Convention. The author identifies the need to expand Article 4-1 of the Law of Ukraine «On Private International Law» and improve the implementation of disputes involving an exclusive choice of court agreement. The author emphasises the need to resolve problematic issues, as this will positively affect the international legal image of the state and prepare further legislative changes for more effective synthesis of the legal systems of Ukraine and the EU member states.

State participation in investment agreements (international investment activity): issues of immunity and jurisdiction

It is indicated that international private-law relations nowadays are expanding significantly primarily in connection with the internationalization of economic life. The modern world is characterized by the economic interdependence of states, the expansion of not only traditional forms of foreign economic relations, but also relatively new forms such as leasing operations, concessions, franchising, and others. The article examines the current trends in the development of state immunity in international private law relations, in particular, in investment relations. The author defines the scope of these relations and gives their general characteristics, as well as identifies the peculiarities of the State’s participation in these relations as a subject of private international law. The author examines the content, types of international investment relations, development trends and peculiarities of legal regulation. The author pays special attention to the jurisdictional issues of investment dispute resolution involving states. The author analyzes legal acts and shows the role of judicial practice in this area. The author substantiates the need to apply functional (limited) immunity in international private law relations. Expansion of the range of international private legal relations over time due to the development of foreign economic activity, integration processes, and interdependence of States in the second half of the twentieth century contributed to the expansion of State participation in civil (private) relations, which objectively led to the establishment of the concept of functional (limited) immunity in the legislative, judicial and contractual practice of different countries. The concept of limited immunity is becoming increasingly popular in the world, which is explained by the development of economic relations between different countries and the increasing involvement of states in commercial activities, which on their own behalf enter into various foreign trade agreements, obtain loans from foreign banks, use maritime transport for commercial purposes, i.e. by their actions they seem to put themselves in the position of a merchant, trader, private person, which then allows the courts to consider them as ordinary participants in the process. The current policy vector of most continental law states on immunity issues is shifting towards the use of limited immunity of states.

Peculiarities of division of corporate rights of spouses: through the prism of the Supreme Court practice

Introduction. The paper is devoted to the study of the issue of the division of marital property, namely corporate rights, which is the least regulated at the legislative level. The purpose of the paper is to carry out further scientific research of theoretical and practical aspects of the legal regime for division of corporate rights of spouses under Ukrainian legislation. Results. The author analyzes the scientific approaches to the definition of the concept of corporate rights of spouses, and reveals the content and features of the presumption of joint property. The scientific study of the issue of the legal regime of marital property (corporate rights) offers various variations of further development of the approach to the division of marital property at the legislative and case law levels. The paper emphasizes that the property owned by a husband and wife in joint ownership and transferred to the authorized capital of a legal entity becomes the property of the latter and ceases to be the object of joint ownership of the spouses, while one of the spouses receives corporate rights and the other receives the right of claim. The author analyzes the impact of the decision of the Constitutional Court of Ukraine on private law relations, which changed the vector of development of the issue of joint marital property and its possible division. Within the framework of the issue of the legal regime of corporate rights of spouses, the author makes an excursion into the case law on this issue and traces the changes in case law regarding the possibility, procedure and object of division of corporate rights. Conclusion. The author comes to the conclusion that there is no clear legislative regulation of the legal institution of division of corporate rights of spouses, and the dynamic development of judicial practice which establishes different approaches to the practical solution of this issue.

Участие публично-правовых образований в цивилистическом процессе: актуальные проблемы

The article examines the procedural aspects of the participation of the state, its subjects and municipalities, state authorities and local governments, officials as a party in civil and arbitration proceedings. It is shown that in a number of cases public legal entities exercise power within the framework of private law relations. At the same time, the civil procedural and arbitration procedural forms do not contain special rules for the consideration of disputes with their participation as a party to the case or a third party. The forms of participation of public entities in civil and arbitration proceedings are differentiated based on the nature of their interest in the case.

INTERNATIONAL PRIVATE LAW RELATIONS WITH PARTICIPATION OF THE STATE: GENERAL CHARACTERISTICS, CONTENT, TYPES, IMMUNITY

The article examines current trends in the development of state immunity in private international law relations. The author defines the scope of these relations and provides their general characteristics, while also identifying the peculiarities of the state's participation as a subject of private international law. Furthermore, the author explores the content and types of international private legal relations, along with their development trends and regulatory peculiarities. Special attention is given to the development of state immunity and the justification for functional (limited) immunity of states. Legal acts are analyzed, showcasing the role of judicial practice in this domain. Finally, the author argues for the necessity of applying functional (limited) immunity in international private law relations.

Evolution of the Doctrine of Jurisdictional Immunity of a Foreign State

The transformation of doctrinal views on the problem of jurisdictional immunity of a foreign state as an independent subject of scientific research is currently particularly relevant, given not only the qualitative change in the participation of public actors in cross-border private law relations, but also global digitalization and the modern geopolitical situation, suggesting the need to protect national interests in the field of international trade. The objectives of this study are to analyze the institution of jurisdictional immunity of the state as a participant in cross-border private law relations, which involves the consistent solution of the following tasks: to present a retrospective of the formation of ideas about the complete inviolability of a foreign state from internal legal procedural actions; to analyze the causes and development of the idea of the need to limit the jurisdictional immunity of the state; to investigate the approaches to solving this issue that existed in the domestic doctrine at different stages of the existence of the Russian state; to study modern views on this issue, reflected in international normative acts and judicial practice. The methodological basis of the research consists of such general scientific dialectical methods of cognition as ascent from the abstract to the whole, comparison, analysis and synthesis, deduction and induction, etc. A number of special scientific methods are also used: descriptive, comparative legal, systemic, historical-legal, formal-legal and others. According to the results of the study, it can be concluded that the evolution of the legal concept reflected in the judicial practice of national and international judicial institutions illustrates a gradual departure from the idea of jurisdictional immunity of the state in its absolute understanding in favor of a limited one, and in recent years the tendency to expand the list of cases when the state cannot invoke the existence of immunity from the jurisdiction of another state. An innovation in this area, which certainly has a solid conceptual basis and serious prospects for further development, can be considered the denial of immunity on grounds of public order for the protection of human rights. At the same time, in the near future, the growing conflict between the constitutional (internal) law of the state and international norms will require its resolution.

Защита интересов резидентов Арктической зоны

The article deals with the problem of determining applicable methods and procedural forms for protecting the rights and legitimate interests of residents of the Arctic zone. It is concluded that the residents of the Arctic enter into both private and public law relations. The public law nature of disputed material legal relations is determined by the participation of public authorities in them, as well as the management company as an entity exercising public powers in relation to residents of the Arctic zone. Private law disputes involving Arctic residents can be referred to arbitration courts (arbitration). It is proposed to provide for the mandatory participation of the prosecutor in cases of a public law nature with the participation of residents of the Arctic. It is expedient to establish a mandatory pre-trial procedure for settling disputes involving residents of the Arctic.

Prospects for the use of artificial intelligence in civil justice

The article discusses the general prospects for the use of artificial intelligence technology in civil proceedings as a main and auxiliary tool at the current stage of the development of this technology. The main approaches to defining the concept of artificial intelligence were studied and its classification into weak, strong and superintelligence was characterized. It is emphasized that justice is usually administered by professional judges, as high demands are placed on their legal knowledge and life experience. It is argued that equal replacement of a judge in civil proceedings with artificial intelligence technology is currently impossible. The reasons for the impossibility of such a replacement are analyzed, namely the complexity and multifacetedness of controversial private-law relations, the impossibility of taking into account moral and ethical aspects, the need for flexibility in decision-making, the problem of the nature of the initial algorithms of artificial intelligence, the transparency (motivation) of decisions, the problem of determining the guilty party in court cases errors, data protection issue. It is noted that these reasons have a technological and legal basis. A critical assessment of the state’s conceptual approaches to the development of artificial intelligence in the field of justice is provided. The directions of the auxiliary application of artificial intelligence technologies in civil proceedings, which are reduced to the automation of routine tasks, processing and analysis of large volumes of data and evidence, and increasing the accessibility of justice, are considered. It has been proven that the use of artificial intelligence technology provides better opportunities for the participants in the judicial process to realize their rights and obligations, including the processing of large amounts of information. The importance of ensuring a high level of information protection when using artificial intelligence during the administration of justice in civil cases is emphasized. The need for regulatory regulation of the use of artificial intelligence technology in civil proceedings in combination with other spheres of public administration and branches of law is substantiated. It is indicated that the wider application of artificial intelligence in civil proceedings will require new technological solutions and revision of the legal foundations of the judicial branch of government.

Особенности частноправовых отношений в спорте

The article studies private law relations between various sports subjects. Qualitative development of economic and social parameters of sports can be ensured only provided that a stable legal framework is created, including in the sphere of regulation of private law relations. The author also studies sports development prospects through the system of private law institutions implemented, inter alia, at the municipal level. Based on the results of the analysis, the author concludes that private law issues of sports development should be solved in connection with the comprehensive social and economic development of the Russian Federation.

On the Problem of Determining International Legal Responsibility in Public International Law

One of the ways to ensure order in international relations from ancient times to the present day is to use the institution of responsibility. Most lawyers who devote their work to international law in general and to its individual branches. To one degree or another, these works deal with the issue of international responsibility.
 To date, the issue of liability under international law has been one of the least developed, although the problem of international legal liability is becoming increasingly important in the practice of international relations as one of the security institutions that help maintain a certain legal order in the world.
 The issues of international responsibility are equally important both in the field of public law and private law relations. Moreover, liability in these two branches of international law has much in common and is closely interrelated, which is clearly evident in the process of analyzing liability issues in various branches of international law.
 The definition of responsibility in international law is a key topic that determines the legal order and relations between states and other actors of the international community. One of the key aspects is the consideration of the principles of determining responsibility in international law.
 The definition of responsibility in international law is a key topic that determines the legal order and relations between states and other actors of the international community. One of the key aspects is the consideration of the principles of determining responsibility in international law.
 The article examines the essence and main aspects of the concept of international legal responsibility, which is one of the first principles of international law.
 First of all, the article examines the principles of responsibility, such as the principles of sovereignty, equality of states and non-interference, and how these principles shape legal standards and mutual relations between states and other subjects of international law.
 Special emphasis is placed on the current challenges facing the concept of international legal responsibility. In particular, the author analyzes new forms of responsibility, such as cybersecurity, human rights violations and other aspects arising from the development of globalization and technology.
 The article also emphasizes the need for continuous analysis and adaptation of the concept of international legal responsibility to changes in the modern world, emphasizing the importance of developing effective tools and mechanisms to address the challenges arising in a globalized and technologically advanced society.

Частноправовое содержание института резервирования максимальной электрической мощности

This article analyzes the main legal trends in the field of maximum electrical capacity reserve in the Russian Federation in the light of energy law innovations. The article examines the various meanings of the concept of maximum electrical capacity reserve, the development trends of the legal substance of the institution of maximum electrical capacity reserve, and contains a comparative legal analysis of foreign law provisions. The identified aspects of the new institution of Russian energy law allow us to conclude that there is excessive public legal regulation of private law relations in this field. The author substantiates the point of view that the potential development of a standard agreement with a condition for maximum electrical capacity reserve will affect the reduction of the discretion of the parties to the agreement and upset the balance of interests of all parties to the legal relations in question. The article discusses options of using the most balanced mechanism for legal regulation of relations associated with maximum electrical capacity reserve in Russia.

International economic sanctions in civil international law: a theoretical aspect.

Modern international economic sanctions (unilateral restrictive measures) are a unique phenomenon and a vivid example demonstrating how the operation of the norms of private international law can affect the achievement of foreign policy goals. Being a public legal category in its essence, international economic sanctions have a significant impact on private law relations, including relations with a foreign element. Civil law and other relations complicated by a foreign element are subject to the influence of sanctions adopted by the competent authorities of foreign states: contractual, corporate relations, as well as relations within the framework of arbitration, enforcement of foreign court decisions and others. In this regard, private (civil) international law functions as a filter that translates economic sanctions of public law origin into the sphere of private law. Its main task is to choose the applicable law, and conflict of laws rules decide whether a specific international economic sanction applies to contractual relations between the parties or not. The author applies both philosophical and general scientific methods of cognition (analysis and synthesis, induction and deduction, critical and dialectical methods) and methods specific directly to legal science (structural-logical, formal-legal, comparative-legal).The scientific novelty of the research lies in the comprehensive study of international economic sanctions in the context of private and public law. It is precisely private international law that can help to smooth out differences in national judicial practice in cases related to international economic sanctions. The article deals mainly with EU sanctions in the context of private international law, and also provides recommendations for improving and unifying EU sanctions regulation in the context of civil international law. The European sanctions regulation, being one of the most ancient, has a significant amount of judicial practice in the field of application and recognition of sanctions of a foreign state. The study of international sanctions in the context of private law relations can play a significant role in the development of the doctrine of private international law and law enforcement practice.

The action of rights in rem on the relations of merchant shipping

The article explores the legal nature and analyzes the relationship of property, obligation and public law relations arising in the field of merchant shipping. The conclusion about the leading role of civil law in the regulation of these relations is substantiated. At the same time, the basis for the construction of both obligations and public marine legal relations are proprietary relations and rights ("rights in rem"), that establish the affiliation of material objects which are used for merchant shipping. Considering the inconsistency of the current real law regulation with existing socio-economic needs, the author analyzes the content of the bills prepared in the process of reforming civil legislation. In author`s opinion, these bills do not fully solve the tasks of establishing in the Civil Code of the Russian Federation a closed list of rights in rem («numerus clausus») and proper regulation of possession. In particular, the unresolved problems of regulating proprietary rights on natural resources, the controversial approach of the legislator and the authors of the reform to determining the legal status of a sea vessel are noted. The author does not agree with the exclusivity of the principle of a single real estate object and justifies the need to preserve the status of a sea vessel as a real thing. The article defends the position of a consistent distinction between real and obligation, absolute and relative, as well as private law and public law relations. However, the author does not agree with the self-removal of civilists from the tasks of coordinating civil and administrative legislation. The right of ownership and other absolute proprietary rights (rights in rem) are regulated exclusively by civil law. Their connection with such public law obligations as obligations to ensure the safety and environmental friendliness of merchant shipping is realized by concretizing in relative public legal relations the general passive legal obligation of the owner not to violate the subjective rights of other persons. This obligation is enshrined in the provisions of the Civil Code of the Russian Federation and is characterized in modern civil science as a general regulatory and protective obligation of a public law nature. The author of the article substantiates that such an obligation may arise not only from the owner, but also in cases where a person owns a material object on other titles (bareboat charter, possession of cargo, etc.). The above justifies the need to formulate the general provisions of rights in rem not only considering the tasks of ensuring civil circulation, but also taking into account the needs of public law regulation of such areas as merchant shipping.

Отмена нормативного правового акта и институт пересмотра дела по новым обстоятельствам в цивилистическом процессе

Introduction: the article analyzes the possibility of reconsidering a case under new circumstances in the event that a regulatory legal act is repealed. Two grounds for such repeal are distinguished: the recognition of a regulatory legal act as having no effect by a court and the cancellation of a regulatory legal act by the law-maker or by a higher-ranking body in cases provided for by law. The article deals with nonjudicial repeal of regulatory legal acts in the context of the institution of reconsidering a case under new circumstances. Purpose: to describe the authentic and subordinated repeal of regulatory legal acts and the possibility of classifying them as grounds for reconsideration of a case under new circumstances. Methods: the research is based on the general scientific dialectical method of cognition; methods of formal and dialectical logic were used; special legal methods of scientific cognition were also employed: formaldogmatic and historical-legal methods, methods of legal interpretation and legal forecasting. Results: it is concluded that regulatory legal acts can be repealed only for future periods, except in cases where their repeal improves the position of persons brought to public liability, or where the interests of an indefinite range of persons or a party known to be weaker are protected in relations under private law. When a regulatory legal act is repealed retroactively, regardless of the presence or absence of signs of its illegitimacy, persons brought to public liability or weaker participants in private law relations to whom such an act was applied should have the right for reconsideration of their cases under a new circumstance. If, in cases expressly provided for by law, a regulatory legal act is repealed by the rule-makers pursuant to a court decision, then it is the relevant court decision, and not the act of repeal, that will be the ground for reconsidering the case under new circumstances.

THE ROLE OF A NOTARY IN SUPPORTING FAMILY LEGAL RELATIONS AS ONE OF THE WAYS TO IMPLEMENT TRADITIONAL SPIRITUAL AND MORAL VALUES

Today, issues of preserving traditional values are considered much more broadly than simply declaring the need to strengthen them as a certain cultural component; they are perceived as strategically important and relevant, and perhaps even equal to the national security of the Russian Federation. Moreover, this topic, which at first glance lies in the plane of public law, directly affects and affects private law relations. The imperative notarial form for almost many transactions within the framework of marriage and family relations emphasizes the special important place that the notary occupies in the support and execution of such transactions and, which may not lie on the surface at first glance, the role that he plays precisely in implementation of traditional values.

평등의 원칙과 사법 (私法)

The principle of equality has traditionally been a topic in public law scholarship. In recent years, however, it is increasingly discussed in private law scholarship. This paper discusses how the principle of equality operates in private law. The conclusions are as follows: First, private law legislation as well as private law interpretation have been undoubtedly bound by the principle of equality. However, private law relationships between private persons are not. In this area, the so-called horizontal effect of principle of equality or rights thereto shall be denied. Second, there are examples in private law where the principle of equality appears to be applied. Resolutions, decisions, or di spositions by or in corporations, associations or long-term contractual relationship can be illegal if they are discriminatory; refusal to deal, suspension of dealings, or refusal of admission to an organization or long-term contractual relationship can be illegal if they are discriminatory; the exercise of ownership rights or the operation of an organization can be i llegal if it has been open to the publi c while excluding certain persons or groups of persons in contradiction to that practice. These are manifestations of the inherent limits of private autonomy, of the principle of good faith and fair dealing, of abuses of rights, and of the general right to personality, however, rather than of the principle of equality, especi ally constitutional equality. Finally, legislators can still impose obligations on private persons to treat other private persons equally, and many do. Given the inherent tension between private autonomy and equality, however, such legislation should be limited to specified traits and/or specified areas and should not be too broad. Relevant legislations in the United States and Germany demonstrate it. It is questionable whether the drafts for the general equal
 treatment act currently being discussed strikes such a balance.

General characteristics of the crypto industry, assessment of the degree and prospects of its further integration into the national economic sector

The article is devoted to a set of questions regarding the general characteristics of the crypto industry, assessment of the degree and prospects of its further integration into the national economic sector. It is emphasized and proven that the rapid capitalization and popularization of cryptocurrency means of circulation caused the dynamic development of the crypto industry in Ukraine. Attention is focused on the need for meaningful research of this phenomenon, based on a basic understanding of the functional capabilities of its representatives, as well as the potential of cryptocurrencies themselves as promising means of circulation.
 The central category «cryptoindustry» is studied and explored, which also involves a meaningful analysis of the original term «industry». On the basis of the above, taking into account legislative realities and author's considerations, the vision of the concept of «cryptoindustry» is expressed. For the completeness and comprehensiveness of the presentation of scientific opinion, the specified definition is compared with a similar term - «system».
 It is argued that the specified industry in Ukraine is represented by a wide range of subjects of public and private law relations, which are usually structurally and (or) functionally unrelated, but all or part of their tasks (intentions) are oriented towards achieving local goals within the subject area. The features of the crypto industry as an independent legal category have been formed and characterized.
 It has been established that the crypto industry is beginning to be reflected in the economic component by making its significant adjustments. It is emphasized that we are talking about the emergence of new ones, the development and qualitative diversification of some existing spheres of economic relations, integrating more and more noticeably into various branches of the specified sector.
 A natural conclusion was made that, in view of the further capitalization and popularization of cryptocurrencies, as well as the active involvement of the state in these processes, the stable development of the crypto industry itself should be expected. Based on this, the assumption of a decrease in demand for some traditional methods of settlement and turnover in favor of crypto­currency means and, accordingly, its growth and role in economic relations, was also made.