Private Law Subjects Research Articles

Subject of authority as a plaintiff in administrative cases

This scientific article examines the subject of power in the administrative process on the basis of Ukrainian legislation and practice of the European Court of Human Rights. In accordance with the tasks of administrative proceedings, the subject of power is mainly in the procedural status of the defendant. In administrative proceedings, public and private interests are opposed, the powers of justice are combined and the authority of the public authority is responsible for the control of the law of the public authority. In a dispute between a citizen and the state, a fair objective assessment of the actions of a public authority is of particular importance for a judge, taking into account the priority of human and civil rights and freedoms. To date, a number of issues remain relevant that determine the grounds for applying to the court of a subject of authority, its status and the level of parity between the plaintiff and the defendant in the administrative process. The article is aimed at establishing the legal status of the subject of power in the system of administrative proceedings through the prism of protection and the performance of delegated functions. The subject of power is classified on the grounds of belonging to the authorities and management and in accordance with the official functions aimed at the exercise of power. Acts in court mainly as a defendant party in an administrative process, proving the legality of its actions or inaction in the case. According to the law, only in some cases acts as a plaintiff in administrative cases. The task of administrative proceedings in such cases is achieved by eliminating the threat of unjustified interference and violations the of the rights of the subject of power. The subject of power has the right to appeal to the administrative court only in cases specified in the Constitution and the laws of Ukraine and in order to implement the powers vested in it. Judicial practice indicates that the authorities are endowed with authority not acting on an equal footing with other participants in the relevant relations and perform managerial functions aimed at providing state guarantees. In court cases where the subject of power acts as a plaintiff to the subject of private law, the court is guided by the principle of proportionality as a universal general legal system aimed at ensuring a balance of private and public interests in the legal regulation.

Peran Vicarious Liability Dalam Pertanggungjawaban Korporasi (Studi Terhadap Kejahatan Korupsi Yang Dilakukan Oleh Kader Partai Politik)

This study aims to identify and analyze: first , the position of political parties as private law subjects; second , the role of vicarious liability in the effort to convict legal entities of political parties. The research method used is normative juridical with a statutory approach. This study concludes that first , political parties as legal entities which are also legal subjects can be held accountable for acts of human rights violations, based on the theories and formulations of the laws and regulations that have been regulated in the Republic of Indonesia. Second , vicarious liability plays a role in efforts to punish legal entities such as political parties in the form of fines or additional penalties, which in practice experience difficulties or weaknesses .

Institutional Provision of Protection of Property Interests of Private Law Subjects during Enforcement of Court Decisions

The necessity of determining a coordinated system of institutional support for the protection of the rights, freedoms and legally protected interests of the participants of personal non-property and property relations is substantiated. The substantiation of the national model of organization of execution of decisions of courts and other bodies as an integral part of the institutional mechanism of protection of property interests of private law was further developed. The classification of various systems of organization of execution of court decisions on various criteria is given: on a way of the organization of a profession of the executor, on a place of bodies and officials of execution, depending on whether bodies of execution are uniform structure, or there are some independent organizations, depending on bodies are empowered to enforce decisions. Based on the analysis of the existing model of organization of execution of court decisions, the need for clear definition of the status of enforcement bodies, separation of their participation from other authorized bodies (persons) that ensure the implementation of court decisions and other bodies, as well as increasing the status of state executor the subject of execution, and not the body of the state executive service. There are arguments that the Ministry of Justice of Ukraine, as a regulator, cannot act as a subject of execution at the same time, as in this way an obvious conflict of interests can be traced. It is concluded that the process of creating an effective and efficient institutional structure for the implementation of decisions of courts and other bodies is not completed, the modern mixed model of enforcement should be considered transitional with the need to develop a capable organizational structure of enforcement bodies. Keywords: enforcement of judicial decisions, organization of enforcement of a decision, enforcement proceedings, state enforcement service, state executor.

Sources of Property Formation of a Public Law Company

As part of the civil legislation reform, a public not-for-profit company is recognized as an independent form of non-profit organizations. Its intermediate position between a legal entity as a subject of private law and a public authority shows the existence of features in the methods of its property formation. In the article the author has analyzed the sources of formation of the property of the public not-for-profit company, investigated doctrinal approaches to understanding the essence of the sources of formation of the property of the organization under consideration. The peculiarities of property formation of public law companies operating in Russia have also been determined. According to the results of the analysis, the author has drawn the conclusion about a predominantly public nature of the property component of public not-for-profit companies, the main source of formation of which is the state property or funds received under statutory provisions. The author makes the interest of the founder in the property component of a public not-for-profit company conditional upon implementation of the state and public interests and public law functions imposed on it. On the basis of the study, the author has determined a conflict in the legislation regulating the investment of temporarily free funds of a public not-for-profit company as a revenue-producing activity and has made proposals to resolve it.

The civil status of entrepreneurial associations in the context of European and Russian legislation harmonization

The article contains a study of the question of the correlation between the legislative definition of the subject of Russian private law and the requirements of modern international economic turnover. A review of the laws on business associations and the practice of their application in Russia makes it possible to identify the tendency to spread the doctrine of control and the doctrine of a single economic interest. These doctrines can effectively protect corporate interests while entrepreneurial associations have only organizational and economic unity. For the practical activities of entrepreneurial associations both in Russia and in Europe, these characteristics are necessary and sufficient. In general, it should be recognized that the concept of a legal entity, its civil status, its legislative features and legal personality are important only for the resolution of contractual disputes. And, as the practice of applying corporate norms shows, the design of a legal entity in relation to entrepreneurial associations becomes an encumbrance that hinders, on the one hand, the effective conduct of business, and, on the other hand, effective state control over the financial, tax and competitive activities of participants in the economic turnover. Taking into account the fact that each collective entity finds its activity both in the sphere of contractual regulation and in the sphere of corporate relations, the norms currently contained in the Russian Civil Code on the classification of subjects of law, the notion and features of a legal entity cover only one aspect of the life of collective actors and limit its manifestations in the sphere of corporate relations. It is proposed to expand the idea of collective subjects of private law. The practical expediency of giving civil status to entrepreneurial associations is substantiated.

Организационные основы социального предпринимательства: особенности договорных конструкций

The article is devoted to the research of the Institute of social entrepreneurship. The authors identify the features of the organization of contractual relations in relations mediating the provision of social services. Attention is drawn to the fact that the legislation does not have a unified approach to understanding social services, as well as an exhaustive list of services related to social services. Based on the analysis of current legislation on social entrepreneurship, the article identifies problems related to determining the legal nature of the state (municipal) social order. The authors consider various theoretical approaches to defining the concept of state order. In the doctrine, the state order is considered as a managerial administrative act, as a set of administrative and legal acts, as a task or assignment of the state, and even as a public law institution for implementing the Constitution, laws, and functions of the Russian state in the form of an administrative regime of relations between the state and private law subjects. As a key category that links together all other components of the procurement process, the state order has not found conceptual certainty either in legislation or in legal science. It is proved that a social order by its nature is a private legal act, and the placement of such an order should be considered as a unilateral transaction to provide the authorized body with the right to meet the needs of citizens in social services. At the same time, such a transaction is aimed at organizing relations between state authorities, local self-government bodies and service providers. It is concluded that actions for placing a state (municipal) social order aimed at creating preliminary relations for the provision of social services are a one-sided organizing transaction.

Mechanism for Ensuring Children’s Rights in Ukraine: Problems of Subject Composition

The purpose of the scientific article is a comprehensive analysis of the nature and subjective composition of the mechanism for ensuring the rights of children in Ukraine. Тo achieve it, the following tasks are formulated: first, on the basis of doctrinal sources to reveal the approaches of modern scientists to the nature and essence of the mechanism of ensuring children’s rights; secondly, based on the existing legal sources of Ukraine in this area to analyze the structure of the mechanism for ensuring the rights of children; thirdly, to classify the subjects of the mentioned mechanism, to consider the principles of their legal status and functional-competence characteristics; fourth, to highlight the features of general and special subjects of children’s rights, based on existing law enforcement practices. Scientific novelty. The mechanism for ensuring the rights of children in Ukraine have undergone a long period of formation, has undergone some reforms marked by the implementation of international legal standards, modernization of the subject structure, which includes two main groups – public and private, designed to regulate, implement, protect and safeguard children’s rights, and in case of their violation – proper and timely recovery. Conclusions. The mechanism for ensuring the rights of children in Ukraine are a complex entity. The Verkhovna Rada of Ukraine, the President of Ukraine, through the Plenipotentiary of the President of Ukraine for Children’s Rights, the Cabinet of Ministers of Ukraine, the Ministry of Social Policy, the Ministry of Internal Affairs, the National Police of Ukraine, their structural subdivisions and territorial bodies, local state administrations and bodies are called upon to exercise a number of powers local government, through children’s services. These are known to be public law entities. In turn, the subjects of private law involved in ensuring the rights of children and the protection of children are labor collectives, charities and other public organizations, individuals. At the same time, there are a number of problematic issues that lie in the plane of its functioning of this mechanism and need to be addressed in the interests of children

Moratorium on Debt Recovery in the Context of Ensuring Property Interests of the State and Subjects of Private Law

The content of moratorium on debt recovery as an element of state regulation of civil relations, which significantly affects the usual course of civil obligation, and its impact on ensuring interests of the state as the owner and other participants in civil relations is investigated. The relevance of the study is determined by the uniqueness of the national legal system, where a moratorium is becoming less the exception than the rule, can become a means to protect the interests of an entity, a group or a cluster of them, what, in turn, may encroach on the property status of creditors, including those who have exercised their right to judicial protection of the violated, unrecognized or disputed right. The author analyses the types of introduced moratoriums on debt recovery, including the extended classification criteria, regulatory consolidation, peculiarities of their application. It is stated that the introduction of moratoriums by the state is done not only and not so much for individual debtors who are unable to fulfill their obligations, but mainly due to imperfections of legislation in other areas (e.g. property management) or to prevent deterioration of socio-economic and political situation in the country in the result of instability in the property sphere provoked by economic crises and armed conflict (war) on the territory of Ukraine, which significantly affects the entire property sphere, especially of those individuals and legal entities related to the occupied and frontline territories. The need to revise the state policy on the application of moratoriums on debt recovery as a tool for regulating property relations and enforcement proceedings is accentuated. Emphasis is placed on the necessity for more detailed justification of the introduction and application, coercion, justification, real temporality of moratoriums on debt recovery, establishing a clear balance of creditor (debt collector) and debtor given the high interests of their introduction in order to respect constitutional and conventional human rights and fundamental freedoms on protection of property rights, the right to judicial protection, etc.

Доступ адвоката до персональних даних свого клієнта у сфері надання медичної допомоги

Regulatory competition between the Law of Ukraine "On Personal Data Protection" and the Law of Ukraine "On Advocacy and Advocacy" has given rise to misinterpretations about a lawyer's access to information about the health of his client, his medical records and other confidential personal data. The analysis of law enforcement practice shows that the subjects of law have different understanding of the provisions of the Law of Ukraine "On Advocacy and Advocacy" and the Law of Ukraine "On Personal Data Protection" in terms of access to personal data of the client in the field of medical care. The essence of the problem is that today in the legal environment there are two opposing legal positions on the implementation of the right of a lawyer to access confidential information about the client. The lack of consensus on this issue, in our opinion, is due to the different understanding of law enforcement agencies of the concept of "restricted information", which is mentioned in the provisions of paragraph 3 of Part 1 of Art. 20 and Part 2 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy". According to Part 2 of Art. 21 of the Law of Ukraine "On Information" states that confidential information is about an individual, as well as information to which access is restricted by a natural or legal person, except for subjects of power. Clause 3, Part 4 of the same article of the Law of Ukraine “On Information” stipulates that information on medical care cannot be included in information with limited access. According to Art. 59 of the Constitution of Ukraine: “Everyone has the right to professional legal assistance. In cases provided by law, this assistance is provided free of charge. Everyone is free to choose a defender of their rights. " A lawyer is one of the key figures in jurisprudence, which stands for the protection of the rights, freedoms and legitimate interests of citizens. In order for a lawyer to be able to act confidently and effectively within the scope of his or her powers, the law confers on him or her rights that correspond to his or her functions. In accordance with Part 1 of Art. 20 of the Law of Ukraine "On Advocacy and Advocacy" a lawyer has the right to perform any actions not prohibited by law, rules of ethics and legal aid agreement, necessary for the proper implementation of the legal aid agreement, in particular: to make legal inquiries, including the receipt of copies of documents. However, as noted earlier, in practice, it is not uncommon for a lawyer to refuse to receive confidential information about his or her client. Judicial practice is dominated by decisions to bring to administrative responsibility for violations of legislation on personal data protection. The Constitutional Submission on the Conformity of the Constitution of Ukraine (constitutionality) with the provisions of Part 2 of Article 26 of the Law of Ukraine “On the National Police” [1] stipulates that the Law of Ukraine “On Personal Data Protection” is a framework law establishing general principles and requirements for personal data processing. While special laws should establish the rules of personal data processing in the relevant areas, taking into account the principles of the Law of Ukraine "On Personal Data Protection", taking into account the peculiarities of regulated relations, as well as provide appropriate mechanisms for protection against arbitrary restriction of privacy. It is obvious that one law cannot regulate the peculiarities of personal data processing for all spheres of activity of both public bodies and subjects of private law. The Law of Ukraine "On Advocacy and Advocacy" defines the legal basis for the organization and activities of advocacy and advocacy in Ukraine. Thus, all the features of the activity of lawyers, the legal limits of such, are established in a special law, the Law of Ukraine "On Advocacy and Advocacy". Therefore, in competition with the Law of Ukraine "On Advocacy and Advocacy" and the Law of Ukraine "On Personal Data Protection", in the activities of a lawyer when requesting copies of medical documents and information with limited access special rules are the Law of Ukraine "On Advocacy and Advocacy". The constitutional right of a person to professional legal assistance guarantees proper legal protection of his rights and interests in a manner prescribed by law. A lawyer has an unconditional right given to him by the client to receive information about his state of health, but we must not forget that the client's right to legal aid is not unlimited and ends where confidential information about another person begins.

Some Question Marks of Private Law on the State-Owned Companies in Hungary

Abstract The state can be an actor in Hungarian private law in several ways: on the one hand, by its organs (e.g. the Office of the National Assembly, ministries), on the other hand, by the organs of public law the state creates (e.g. budgetary organs), thirdly, through business associations operating with the participation of the state, fourthly, exceptionally, the state itself can also act as a subject of private law. In this study we call the attention to that the terminology used in case of business associations operating with state/local government participation is not sustainable and we focus on some issues where the private and public law discrepancy can be found in Hungary.

UNSUR KERUGIAN DALAM UNJUSTIFIED ENRICHMENT UNTUK MEWUJUDKAN KEADILAN KOREKTIF (CORRECTIVE JUSTICE)

Recent development to claim damages on the basis of either wanprestatie or onrechtmatige daad would not provide saticfactory grounds to the question of justice. There will be a situation in which that no one shall be unjustly enriched at the expense of another which all outside the scope of contract and tort. This has led to the existence of an independent legal doctrine known as unjust enrichment. It is among the most debated private law subjects today in asking for justice. Corrective justice brings to the remedial relation between the plaintiff and the defendant; it is solely concerned with the norm of justice that provides reasons to restitution. Corrective justice properly evaluates the structure of injustness to the both sides, the plaintiff and the defendant. It gives effect to restitutionary proprietary interests rather than compensatiton. This article elaborates the law of unjust enrichment as ground for restitution in conjunction with the corrective justice. Furthermore, this article focuses on the theoritical foundation of corrective justice to meet the unjustified enrichment criteria.

Specificity of Private-Law Responsibility

Legal systems dynamic development encourages researchers to focus on basic categories of jurisprudence and to rethink them in the light of changes in social and humanitarian reality. An objective necessity to ensure the interests of the State and society, on the one hand, and private interests, on the other hand, have predetermined the existence of relatively separate legal areas: Public and private law. The issue of the existence of specific types of legal responsibility adapted for the protection of public and private interests, is being developed. A unique set of measures of legal responsibility under the joint name of "private-law responsibility" scrutinized in theory and widely applied in practice needs in its consistent understanding by the legal community in the light of its nature and main content. The paper provides complex approach revealing peculiarities of private law and its main protective instrument, i.e. private-law responsibility. Based on the analysis of normative, scientific, educational and reference literature, and approaches to law enforcement, the author comes to the conclusion concerning an independent importance and role of private-law responsibility in the legal regulation. The author has examined the purpose of its determination and application, the sphere of application, forms of manifestation (types), legal confirmation, factual foundation, participants involved, the form and mechanism of private-law responsibility implementation. In the course of the research the author scrutinised the issues of interrelation between objectives of private law and private-law responsibility, penetration of private-law responsibility in the sphere of public law, interrelation between the structure of private law and the types of private-law responsibility, its forms depending on the possibility of specifying a sanction in a legal contract. The paper determines the content of a private-law tort applied as an factual basis for responsibility, enumerates peculiarities of primary and derivative subjects of private law, i.e. participants of legal relations of responsibility, and reveals specific criteria of implementation of private-law responsibility in voluntary and involuntary orders. The author draws generalized conclusions in accordance with the results of the study conducted by the author.

REZEKNE SEZ – 20 YEARS OF ACHIEVEMENT AND FUTURE CHALLENGE

Rēzekne Special Economic Zone (RSEZ) was established in 1997 as state stock company in order to promote trade, develop production and transport, as well as import and export of goods through Latvia. RSEZ administers state aid in form of tax allowances. During the 20 years of the history of RSEZ several substantial changes have taken place, determining overall development of RSEZ. In 2004 the legal status of the organization was changed due to amendments in legal acts of Latvia. It was reformed from a non-profit organization into a stock company. The ministry of Economics of the Republic of Latvia handed over its stocks of RSEZ to Rēzekne city; subsequently from 2004 to 2010 55% of the stocks were owned by Rēzekne City Council. Regardless of the fact that the control interest was owned by public institutions, RSEZ was a subject of private law and that contradicted the aim of the establishment of RSEZ i. e. promotion of regional development. It determined the necessity to make changes in the functioning of RSEZ. As a result the legal status of RSEZ was changed again in 2010 from stock company to joint municipal institution and amendments with regard to the territory of RSEZ were made. Simultaneously with the aforementioned transitions the economic and politic situation in the country changed – in 2004 Latvia became a member state of the European Union and harmonization of legal acts was performed in accordance with the requirements of the EU. Since 2004 several times substantial amendments have been made in the legal acts regulating the operation of RSEZ and overall its competitiveness and attractiveness for the investments has decreased. Nevertheless the last five years had been the most successful since the establishment of RSEZ. It is possible to distinguish two stages in the development of RSEZ 1) 1997–2010; 2) 2010 – up to nowadays. Altogether RSEZ enterprises (since 2001) have invested almost 150 million euros, from which 120 million euros had been invested in last 10 years and 80 million euros – in last 5 years. The turnover of RSEZ enterprises in 2016 was 84.5 million euros (70.5 million euros – in 2015). In comparison with 2009 the turnover of RSEZ enterprises has increased by 60 million euros or more than 3 times. In the recent years prospects of growth and investment attraction in Latvia and Europe are encumbered by political instability and slow economic growth of Eurozone. Certainly an important factor for investment attraction is developed and qualitative business infrastructure. Therefore significant is the role of the initiatives of municipalities related to implementation of EU Structural Fund financed projects in RSEZ territory as well as proactive work of RSEZ in investment attraction. The paper describes the RSEZ regulatory framework, activities and results achieved in the past, as well as future challenges. The research has been based on the database of RSEZ business research and analysis information system, as well as on the European Union and Latvian policy and development planning documents, laws and regulations. It was found that the RSEZ results and performance indicators have improved after the change of the legal status of RSEZ in 2010. RSEZ enterprises make an important contribution to the development of Rēzekne city and Rēzekne region.

Contractual Forms of Agreement Between the Bodies of the Executive

The governance system that is adequate to modern social realities dictates the need to review traditional views about the extremely powerful and imperative specifics of managerial actions in favor of recognizing the admissibility of the tools and tech-niques of a private nature in the field of administrative and legal regulation of social relations. The determinants of such transformation include, firstly, the general legal trend synthesis of private and public beginning in the legal system, and secondly, the formation of a fundamentally new concept of interaction between the state and the society, which involves the delegation of powers by public authorities to the subjects of private law, reserving, mainly powers of coordination, control and supervision. Accordingly, we are seeing an increase in the number of relationships, traditionally of subordinate nature, which are formed on the basis of self-regulation of discretion-ary items. Actively, by shaping the forms and mechanisms of coordination and co-operation between the subjects of the public administration, which in the future will harmonize administrative activity, expands the system of horizontal transactions be-tween entities of public law. One of the manifestations of these trends is the devel-opment of an administrative contract institute (Erastova, 2016). The main hypothesis of the author, according to which, deep doctrinal study requires the construction of an administrative contract, as evidenced by the absence of its system of legalization given the presence of certain indications of situational charac-ter of the legislator to the possibility of using a number of administrative and con-tractual forms (Ivanova and Bikeeva, 2016).

Соотношение методов государственного регулирования и саморегулирования

Regulation of economic relations is not homogeneous both in terms of its contents in statics, and in terms of specific methods, forms and means of legal influence in dynamics. An important role in regulation of economic relations at the present stage of their development belongs to self-regulation institutions. This entrusted science with a task of justification of this form of economic interaction and integration within the economic activity regulation mechanism. The issues of correlation of state regulation and self-regulation are debatable and still unsettled definitely: development and transformation of forms of state regulation of economy; understanding of self-regulation as an antipode of state regulation. The authors came to a conclusion that self-regulation is a specific instrument of regulation of economic relations which cannot be considered as a derivative of state regulation or be defined at the discretion of private law subjects. As a consequence, methods of state regulation and selfregulation shall differ. Tasks and methods of self-regulation and state regulation of economic relations are different. At state regulation, an authorization-based method prevails, while at self-regulation the principle “everything which is not forbidden is allowed” is used. This is manifested in the following aspects of correlation of these two mechanisms of regulation of economic relations.

Rembrandt e o Direito Privado

Breves reflexões sobre temas de Direito Privado, inspiradas na obra O projeto de Rembrandt, da historiadora da arte Svetlana Alpers.

Judicial Intervention to Corporate Governance: Causes and Approaches

A corporation is a legal person with group personality created by the law and is considered to have the freedom of autonomy as a subject of private law. A corporation is also considered as shareholders’ tool to pursue profit just like a kite flown by shareholders especially substantial shareholders. A corporation is considered as a contractual combination, a gathering place of stakeholders and constituting a cell of society. A corporation is described as a Utopia. …With different interest claims, subjects such as management, shareholders, directors, creditors, employees and others who coexist in a corporation through the certain formal structure of corporate governance.

THe problem of delegation of state authority of the subjects of private law: current practice and doctrine

In the article legal problems of delegation of separate state-imperious powers to the nonstate organizations are considered. The basic blanks are revealed, ways of their permission are offered. The general rules of delegation by which the legislature should be guided at acceptance of the corresponding legal certificate are presented.

Interregional Organizations (IROs) in Europe: New Subjects

Interregional organizations appeared in international relations and consequently in international law quite recently. The development of technology in the previous decades enabled not only the public and private law subjects including individuals from different States to co-operate directly across the States’ borders, but in the same time it led to the enlargement of the scope of international issues that central governments have been faced with. This situation has resulted in the co-operation on the sub-State, i.e. inter-regional level i.e. between regions and other sub-State entities from different States. Such a process resulted in creation of numerous interrregional organizations, particularly in Europe. Nowadays, these organizations already participate in international legal relations with States and other subjects of public international law. For these reasons, the topic of this paper is an analysis of some aspects of international legal personality that might be achieved by these organizations.

Interregional Organizations (IROs) in Europe: New Subjects

Interregional organizations appeared in international relations and consequently in international law quite recently. The development of technology in the previous decades enabled not only the public and private law subjects including individuals from different States to co-operate directly across the States’ borders, but in the same time it led to the enlargement of the scope of international issues that central governments have been faced with. This situation has resulted in the co-operation on the sub-State, i.e. inter-regional level i.e. between regions and other sub-State entities from different States. Such a process resulted in creation of numerous interrregional organizations, particularly in Europe. Nowadays, these organizations already participate in international legal relations with States and other subjects of public international law. For these reasons, the topic of this paper is an analysis of some aspects of international legal personality that might be achieved by these organizations.