Proprietary Relations Research Articles

Dangerous memories and entangled temporalities: Irish republicanism and the postcolonial politics of time

ABSTRACT In this article we develop a ‘hauntological’ reading of republicanism in postcolonial Ireland. This reading takes as its object the ways in which the politics of remembering – and remembering republican politics in particular – is equally a politics of time. Exploring the politics of republicanism through the lens of entangled temporalities, we develop an understanding of a particular mode of political desire. This republican political desire holds open the demand for a radical interrogation of the (post)colonial given. As such, it takes the form of a ‘dangerous memory’. Through the concept of a ‘dangerous memory’, we excavate a certain republican politics of refusal, that haunts the legitimacy and automatic reproduction of the postcolonial settlement and the attendant proprietary relations of inequality that it formalizes – culturally, politically, economically and legally. This theoretical interpretation of Irish republican hauntology is empirically explored through three historical layers and entangled temporalities that are organized around the ghosts of Roger Casement, a radical republican figure. The dangerous memories of Casement not only disrupt the canonical or official interpretation of Irish republicanism, but also open up the left-republican possibility to further interrogate the postcolonial present, both in Ireland and beyond.

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.

Colonial Intimacies

This paper contends that relations of property and propriety of “western modernity” engender and articulate different forms of violence, crucially including sexualised violence. Going beyond the limits of dominant frameworks and liberal feminism’s approaches to violence, this paper takes seriously the need to trace how modern ways of relating are intimately connected to colonial modes of dispossession and propertisation. Therefore, I draw on historical resources and present a constellation history with fragments from the context of relations of intimacy in German colonial rule. This shows how hegemonic family relations and marriage laws were used to control access to land and resources, as well as workers and their bodies. Logics of imperial intervention in sexuality and the use of sexualised violence extend beyond this specific spatio-temporal context into the present. This highlights how categories of race, gender and sexuality develop with, through and for, proprietary relations. The ambiguous role of white women vis-à-vis colonial relations of ownership reinforces a critique of limited approaches of liberal feminism and stresses the importance of anti-colonial organizing against violence.

Understanding the phenomenon of a real contract: stereotypes, new approaches, and scientific value

The article deals with the definition of a real contract. It is shown that understanding the phenomenon of a real contract is based on the stereotypes: it is defined as an act of transferring a thing in the purchase and sale (tradition). This stereotype does not reflect reality. The transfer of a thing based on the sales contract is not a contract or any other transaction at all. This transfer is an execution of the sales contract. The real contract is a purchase and sale contract. In order to overcome stereotypes in the understanding of a real contract, a new methodological approach based on the doctrine of the subject of civil contractual regulation is required. The basis for classifying civil law contracts is the classification of contracts by the subject of regulation. The real civil contract is a civil contract aimed at regulating proprietary legal relations. Understanding the phenomenon of a real contract has scientific value, since it allows us to identify the legal nature of a real contract, and advances the theory of contract law by classifying contracts by the subject of regulation into obligation, real and real obligation ones.

The limits of the consensual principle and the structure of a contract of obligation in Italian civil law

The Italian legal system belongs to the so-called Roman family law. However the distinction between a contract and an agreement, famously applied in French civil law, has not been adopted by Italian legal system. The peculiar features of the concept of contract adopted under Italian law pertain to the fact that, without borrowing from the French Civil Code, nor from the German Civil Code, the Italian definition of contract expressed in art. 1321 of the Italian Civil Code has plain and concise textual meaning, specifying both the nature and legal consequences of contract making. The Italian Civil Code generally identifies a contract with an agreement of the parties concluded for the so called legal cause of the contract understood as the economic and social function of the contract. The regulation concerning concluding and enforcing contracts in accordance with art. 1324 of the Italian Civil Code have been extended to other legal actc, in particular unilateral ones, provided that they are inter vivos and the terms of contract pertain to obligatory or proprietary relations. The paper focuses on the limits of the principle of contractual consent in Italian law. The principle generally refers to the agreement as the general underlying legal condition for validity of any contract. The principle has a significant impact on the legal effects of a potential ex post collapse of the contract due to its’ invalidity in case of the transfer of ownership concerning both personal property rights and immovable property rights.

Unravelling incoherence: utilizing property theory to challenge the classification of animals as chattels

In law, domesticated animals are chattels, the object of property rights. This classification does not reflect the characteristics and capacities of nonhuman animals that make them unlike other objects of property. The categorization also fails to reflect widely held beliefs that animals deserve some moral consideration. In recognition of these difficulties, a literature has developed to advance the case for animal rights and alternative frameworks for animal protection. Yet the literature has neglected one logically antecedent issue: the normative suitability of property status itself. The property paradigm provides a straightforward legal mechanism for the exercise of control over others, as seen in its historical influence over the treatment of children and married women; yet in the animal context, its suitability has remained unscrutinized. This article does not rely on moral objections to the classification of animals as property. It focuses instead on reasons of legal theory that challenge this hegemony. Consideration of animal welfare legislation provides a preliminary indication that animals’ property status is unsuitable. Regardless of whether property is conceived as the right to exclude or a ‘bundle’ of rights, protection of the interests of objects is inconsistent with other frameworks that regulate proprietary relations. Moreover, a comprehensive examination of traditional justifications for the private property institution reveals that animal property does not serve the purposes for which the institution was established. These analyses expose the normative incoherence of the classification of animals as chattels.

Landscape of Dolní Kounice from the perspective of the authors of the Franciscan (“Stabile”) Cadastre

The aim of this contribution is to refer to the exceptional function of the Franciscan, so-called “Stabile” Cadastre in landscape description of the first half of the 19th century. The Franciscan Cadastre is an outstanding piece of work, both for its high historic and aesthetic value as well as for its detailed depiction of not only land use but also elementary description of social and economic aspects of the settlements during the beginnings of the Industrial and the Agricultural Revolution in the Czech lands. The Franciscan Cadastre is a perfect tool for research on landscape structures, as it consists of the map records in which the actual landscape situation was recorded with the assistance of precise cartographic techniques, and thus allows us to study its spatial structure; the written records provide us with quantitative information about land use and way of farming. The essence of this contribution is the data analysis making use of the Franciscan Cadastre of Dolní Kounice, and creating a compact “picture” of the area on the basis of social, material-technical and economic situation, which is described in the written records of the Franciscan Cadastre of the town. The pillar of such picture is the data concerning population and its way of living, farming methods, crops cultivated and animals bred. Specific attention is paid to ten categories of land use in Dolní Kounice, which are delimited in the written records of the Franciscan Cadastre. They are: arable land, pastures, vineyards, gardens, builtup areas, forest, arable land with fruit trees, pastures with fruit trees, pastures with trees and shrubs, and crop-fallow rotation, with which we can further on specify the way of farming, proprietary relations and the size of land blocks, using the map cadastral records. The landscape structure described in the Franciscan Cadastre (1841) is compared with the data from 1845 that is used when studying long-term changes of land use based on the statistical data (LUCC UK Prague database). <b>Krajina Dolních Kounic z pohledu autorů Františkánského („Stabilního“) katastru</b> Stabilní katastr, podle panovníka který inicioval jeho vznik též Františkánský katastr, je ucelené, na svoji dobu maximálně objektivní a přesné dílo o kvantitativním i kvalitativním stavu půdního fondu a ekonomiky v Č echách, na M oravě a ve S lezsku, ale i R akousku a Dalmácii. Unikátní je svojí podrobností, rozsahem věcným i územním a jednotnými pravidly, podle nichž vznikal a které usnadňují porovnatelnost jeho výstupů i v mezinárodním kontextu. Velice cenný je precizně zpracovaný mapový operát Stabilního katastru, ze kterého doposud ještě vychází 70 % současných katastrálních map (Pešl 2001), což hovoří za vše. Písemný operát je bohatý na detailní historickogeografická data o celém katastrálním území, jež by se dala seřadit do tří kategorií: údaje o sídle a katastru, informace o zemědělské výrobě a využití půdy, údaje o průmyslové výrobě, obchodu a živnostech. Krajina Dolních Kounic, jak ji zachytil stabilní katastr, je krajinou na přelomu barokní a novověké éry. Stále se zde plně neprojevila zemědělská revoluce v podobě systému střídavého hospodářství a dalších intenzifikačních opatření, ale z pohledu průmyslu je tomu naopak, průmyslová výroba se zde již rozvíjí, nejvýznamnějším podnikem je textilní továrna a cihelny, město je hospodářským a obchodním centrem pro blízký region. Krajinné pokrývce dominuje mozaika polí, vinic a pastvin, která je zejména na levobřežní části katastru velmi drobná a pestrá. Z mapového operátu je patrná snaha o využití každého možného pozemku – pastviny jsou v údolích vodotečí i na velmi strmých svazích, neobhospodařované zůstávají prakticky jen holé skály. Město je determinováno reliéfem a řekou, která ho dělí i významově na jádro (centrum města na pravém břehu) a periferii na levém břehu. Špatné dopravní napojení a poloha Dolních Kounic mimo hlavní obchodní cesty a železnici vedla v pozdější době k jeho stagnaci. Srovnatelnost dat o využití půdy vedených v rámci Stabilního katastru, tedy z roku 1841, a z katastrálních výkazů z roku 1845 není v případě Dolních Kounic jednoznačná, protože byly použity z části jiné kategorie využití půdy (některé upřesňující, jiné naopak generalizující) a zřejmě i odlišné postupy při hodnocení jednotlivých ploch. Z porovnání vyplývá, že tyto dva datové soubory nelze mezi sebou porovnávat na základě základních kategorií land use, ale jen pomocí souhrnných kategorií (zemědělský půdní fond, Lesní plochy a jiné), podobně jak to popisuje metodika použitá tvůrci databáze LUCC UK. Vzhledem k přesně danému postupu při torbě Stabilního katastru i při pozdější tvorbě katastrálních výkazů lze očekávat podobné nesrovnalosti také v ostatních katastrálních územích.

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).

Personal Freedom in Estonian Marriage Law between 1918 and 1940

Although Estonia started to develop its own legal system after gaining independence in 1918, many of the old laws from the Russian Empire remained in force in the interim. Soon, Estonia started to develop its own civil code. The old Baltic Private Law Code was highly patriarchal, and various aspects of family law reform were extensively discussed throughout the 1920s and 1930s. While the need for reform was widely accepted, opinions as to its extent varied considerably: female lawyers, inspired by Scandinavian laws, fought for the greatest possible degree of freedom and equality between spouses, while conservative politicians preferred more moderate changes. The article examines two main questions connected with the developments of those times – how much freedom the state gave to spouses for regulating their personal and proprietary relations and how much personal freedom the wife had in comparison to the husband. The norms regulating personal relations, the statutory matrimonial property regime, and the contract related to marital property are analysed in connection with efforts to identify the merits and reasonable limits of personal freedom in marriage. The family law in force in the 1920s and 1930s is compared with draft forms of the Estonian Civil Code, for uncovering how the compilers of the new version achieved balance between modern liberal ideas of personal freedom and traditional concerns about upholding stability of marriage.

Investment system for renewables objects use generating

In this article single legal questions of investment into creating the objects of generation based on renewables are considered. The issues connected with lack of terminological unity in the regulations regulating this sphere are touched; the noncompetitive environment of realization of the relations under the contract of power delivery; the contract subject blurring, lack of the proprietary relations description evolving from RES owing to creating new objects of generation. The relations system of investment for renewables use is considered as a complex of the legal means organized in the most consecutive way for creating objects of generation and obtaining by sellers the right for sale of electric energy and power in the wholesale market. In this regard, features of the parties and subject of the contract of power delivery were studied.

Assessing the environmental impact of 3D public law restrictions

The needs of modern societies require, on the one hand, the most efficient exploitation of land by individual stakeholders and, on the other hand, have set up a variety of restrictions and regulations for the public benefit. Such restrictions are steadily growing in number and apply in various areas. Given the technological development in the construction sector, complex proprietary relations emerge in overlapping private and public rights. Cadastres constitute the core of land administration systems, gradually evolving to development tools that provide multi-purpose land related information. Within this context, incorporation of Public Law Restrictions (PLRs) to cadastral systems is considered a step towards the development of integrated land administration systems. Internationally, PLRs are usually registered in separate registries, under different types and formats, depending on the competent body/authority. These PLRs include, among others, restrictions regarding environment and nature protection, water protection, spatial and land use planning zones, cultural heritage, public infrastructure corridors and zones, public easements/servitudes and mining rights. Until today 3D registration and visualisation of such PLRs is mostly discussed at research level, mainly due to the variety of fields related to each PLR, the need of quantifying qualitative components or “translating” physical attributes to legal restrictions and 3D volumes, as well as to the variety of responsible authorities and types of regulations. This paper focuses on identifying PLRs that pertain either explicit or implicit 3D characteristics, emphasising on the PLRs related to the development of the Trans Adriatic Pipeline (TAP) project. This paper aims to identify the nature of 3D PLRs, based on the legal requirements regarding environmental components’ analysis and mapping defined in Environmental Impact Assessment (ESIA) studies, and to investigate the possibility of compiling 3D environmental models from recorded ESIA data. Economic implications of 3D PLR approach is also considered, at qualitative level, in terms of impact on land value when 3D restrictions are imposed, and regarding the cost-effectiveness of drafting ESIA studies showing 3D PLRs.

Transformation of the Institute of the Source of Increased Danger in the Information and Digital Era

Introduction: the development of the latest information and telecommunication technologies used in the civil law sphere transforms the understanding and application of tort liability for damage caused by a source of increased danger. The identified mechanism requires a scientific analysis to determine the essential changes in the institution of a source of increased danger. The implementation of activities related to the sources of increased danger implies the presence of a threat of harm to the subjects of law. To ensure the greatest protection of subjects, digital technologies are used. The purpose of the study: to determine the characteristics of the concept “owner of a source of increased danger”, to consider the impact of digital technologies on the institution of a source of increased danger. Methods: general method; general scientific method (logical (induction, deduction, analysis, synthesis), system); private law (formal legal, comparative legal). Results: the content of the concept “owner of the source of increased danger”is revealed. The problem of lack of transparency of information about the owner of the vehicle, its causes and consequences is raised. Considered the actual use of digital technologies today in this area and proposed ways to develop the protection of subjects of law from the possibility of illegal actions. Conclusions: the characteristics of the basic concept of “owner of a source of increased danger” are defined, the influence of digital technologies on the institution of a source of increased danger is considered. It is revealed that the identification of the concepts “owner of the source of increased danger” and “owner of the property” can lead to a mixture of proprietary relations and non-contractual obligations, requiring their specific legal regulation. The analysis of the new electronic title is carried out, as well as the further prospects of its development are revealed. The approximate list of data necessary for safety of the subject which enters the legal relationship connected with use by the vehicle is specified.

Legal Status of a Child in Family Legislation of the Russian Federation and CIS: Comparative Legal Analysis

The authors identify characteristic features of how certain children’s rights are exercised under the family law of Russia and the legislation of the Commonwealth of Independent States (CIS). The norms of the CIS family law on children’s rights are specific; they adhere to national cultural traditions and customs that have an impact on the implementation and protection of children’s personal non-property rights. The authors point out that a child, under certain circumstances, can be a carrier not only of the rights and obligations provided for by the family codes of independent States, but also by family law of the CIS. The article points out to the need to define the law applicable to regulating relations where the participants have different or dual citizenship, or legal facts occurred on the territory of one State that is a member of the CIS. The authors describe a defect in Russian legislation regulating the status of a child with dual citizenship. The problem of legislative consolidation of the concept of proper upbringing of a child is addressed, as are ways that children may undertake self-protection of their rights granted in CIS member States. One peculiarity of the family codes of CIS member States is the norms regulating a child’s participation in personal non-proprietary and proprietary relations. Special attention is paid to alimony payments. Moreover, the authors consider the laws that regulate dissolution of a marriage, as well as how such dissolution affects the legal status of the child. The article focuses on deprivation of parental rights as a radical method of breaking the bond between a child and parents, distinguishing the deprivation of parental rights from their restriction. The authors consider adoption procedures, as well as the legal status of the adopted and adoptive parents. Each problem is considered by using the comparative legal research method.

Legal regulation of trade-economic cooperation of Russia and Tajikistan: problems of theory and practice

The article gives an overview of the October 31, 2018 International panel discussion devoted to theoretical and practical problems of trade and economic cooperation legal regulation betweenRussiaandTajikistan. The event was held under the auspices of the Southern Institute of management (Krasnodar,Russia) and the Russian-Tajik (Slavic) University (Dushanbe,Tajikistan). Among the main issues of the discussion were the following: investment policy and protection and promotion of foreign investment; interstate cooperation within the framework of the Shanghai cooperation organization; prerequisites and prospects for the unification of legal norms in the field of obligations and proprietary relations; formation of antitrust rules to protect against unfair competition; development of common approaches to the General provisions and institutions of civil legislation and other topical issues of legal regulation of trade and economic cooperation between Russia and Tajikistan.

Socijalna funkcija svojine u kontekstu održivog razvoja

The subject matter of this paper is the constitutionalization of the right to property in the comparative constitutionalism, within the context of sustainable development, as a long-term prospective of a community existence and advancement. The first part of the paper points out to social and ecological functions of sati and considers, from the comparative perspective, the constitutional guarantees on the right to property, the forms of property ownership, and the title holders of property rights. The second part is devoted to constitutional solutions related to the regime of using the natural (developmental) resources, through the prism of the social function of property ownership, the public interest and the environment protection. The authors also discuss the legislative authority allocation in this field of proprietary relations between the various levels of authority in federal and regionally organized states. The third part of the paper provides a comparative analysis of the conditions for expropriation permissibility and limitations to property rights.

Occurrence of Resolutive Condition of a Deed as a Juridical Fact in Civil Law of Ukraine

Resolutive condition of a deed was researched in this article. It is a particular circumstance of reality which occurrence terminates rights. Simultaneously this circumstance may not depend on will of the parties of a deed. Therefore it’s not the circumstance which should be deemed a resolutive condition but the fact of its occurrence. It’s the fact of occurrence of particular condition, performance of act, occurrence of certain phenomenon, which is a finishing point in shaping process, existence or termination of such phenomenon. Termination of a law in deeds with resolutive condition is juridical consequence in form of occurrence of resolutive condition. Essence of resolutive condition would mean that it is obligatory to be reflected in each and every civil legal agreement or in a particular group of agreements. Therefore, considering above mentioned information a conclusion may be drawn that resolutive condition in a deed is a concept used by its parties exclusively on their free will. Its distinctive feature is a temporal separation of moment when deed is made or amendments are implemented as well as when it is terminated. Generally, it can be stated that occurrence of resolutive condition of a deed is juridical fact terminating right with suspensive mechanism of action. In such case, a mechanism to terminate right of civil proprietary relations works as ‘delayed bomb’. It is nature of such deed which stipulates that circumstance that there is a particular period of time between a moment when it is made and when its consequences occur. For proper functioning of respective mechanism to terminate right the deed itself ought to meet all necessary requirements regarding its validity foreseen by regulations of civil legislation of Ukraine. Otherwise, such deed becomes defective which may affect functioning of the mechanism of legal settlement of civil proprietary relations.

The Round Table "Legal Regulation of the Economic Function of the Family in Modern Russia": An Overview of Reports

The article provides an overview of the work of the Round table "Legal Regulation of the Economic Function of the Family in Modern Russia" held on April 6, 2017, at the Kutafin Moscow State Law University (MSAL) within the framework of the IV Moscow Legal Forum. The review outlines the main points of the reports devoted to contemporary theoretical and practical problems of the legal regulation of family proprietary relations facilitating the implementation of the economic function of the family. The reports of the Round table participants addressed such issues of Family Law as socio-economic and legal enforcement of alimony obligations, the balance of interests of family members and participants of civil transactions, formation of community property as exemplified by the legislation of Baltic countries, contradictions between the rules of constitutional and military laws in the sphere of securing housing rights of the family members of military personnel, the definition and legal protection of family secrecy, as well as proposals for family law improvement.

Recovery of Damages as a Sanction in Family Law

Family conflicts are seldom resolved by legal means due to the personal and trust nature of family relations, and the moral and ethical means are used to regulate them. Only extreme, socially dangerous forms of conflict lead to the participation of the state in their resolution. The potential of the private law means of resolving such conflicts is not implemented to full extent. The article examines the possibility of recovering proprietary damage and compensating moral damage in family relations; it is noted that the RF FC lacks proper and sufficient regulation of these sanctions in the RF Family Law. The paper justifies the conclusion according to which tort obligations between the members of the family have a specific nature that is predetermined by a specific nature of proprietary relations (between spouses) and a high level of fiduciarity of family relations. Having examined Family Law in a number of foreign countries (Estonia, Germany, Belarus, Ukraine), the author concludes that it is necessary to pass a law to entrench in the RF FC the opportunity of compensation for proprietary damage and compensation for moral damage as a general method of protecting family rights.

Проблемы статуса частного образовательного учреждения в свете реформирования законодательства о вещных правах

In the light of the reform of the legislation on proprietary rights and improvement of the provisions on legal entities, a question arises on the necessity to preserve, in the Russian law and order, the structure of private institutions based on the right of operational management. The problem is becoming relevant because this form is widely used for the creation of private educational institutions (schools, higher educational institutions, etc.), and any reforms in this area will affect the customers, the contractors and the consumers of the educational services. The article considers the notion, the significance and the place occupied by private institutions within the system of legal entities according to the Russian civil law, both from the viewpoint of trends of development of civil law and the legal stance of judicial authorities and from the viewpoint of traditions of the Russian science of private law. The author pays special attention to the analysis of the legal nature, structure and scope of application of the right of operational management in proprietary relations. The author substantiates that during the reforming of the legislation on proprietary rights, only governmental (municipal) enterprises and institutions should remain the subjects of the right of operational management. The author analyzes the topical issues of legal bonds between founders in case of a creation of a private institution by several persons, as well as the topical issues of legal bonds between the institution and its founders.

Проблемы вещного права в современном российском праве

The article analyzes the progress and further prospects of development of the Russian civil legislation in terms of actual and appropriate improvement of the proprietary legal regulation. The author notes the historical prerequisites of and, substantiates the possible areas for, development of the Russian civil law in terms of traditions of the European private law which originates from the Roman law and the law of pandects; in this connection, the author substantiates the necessity for systemic development of the legislative regulation of limited proprietary rights. In line with the existing specific features of legal regulation of proprietary relations in the Russian law, the author considers advantages of regulation of rights to land plots, which are in the public domain, by means of forms and types of limited proprietary rights; in this connection, the author demonstrates inefficiency of extending mechanisms of law of obligations only, mainly the models of lease contracts, on land relations. The author analyzes differences between legal regulation of homogeneous relations within the civil legislation and the land legislation as a temporary phenomenon and a feature of the transitional stage in the development of the Russian civil legislation.