Provisions Of Civil Legislation Research Articles

Законодательство о деликтной ответственности: проблемы согласованности актов и защиты прав предпринимателей

The systemic analysis of the provisions of certain regulatory acts used in entrepreneurial activity and the Civil Code of the Russian Federation allowed to assess the prospects of application of novelties of special legislation. Taking into account the legal positions of the courts of higher instance, the author finds confirmation of examples of the lack of coordination of the norms of certain laws with the provisions of civil legislation. The article proposes options for harmonising the norms of Russian legislation in order to improve the effectiveness of protection of the rights of entrepreneurs in cases of harm caused to them.

Good faith in employment relations – between standard and duty

The current Labour Code of the Republic of Moldova does not regulate the principle of exercising constitutional rights and freedoms in good faith. Exercising of these rights is complemented by the other dispositions contained in the labour legislation and, insofar as they are not incompatible with the specifics of the labour relations provided by the code in question, with the provisions of civil legislation. The civil legislation in the matter of good faith stipulates that this institution is a standard of conduct of a party, characterized by fairness, honesty, openness and taking into account the interests of the other party to the legal relationship. In the sense of the invoked principle, it is assumed that an employee exercising his rights at work fairly and honestly, must take into account the employer’s interests. However, in terms of the content of the legal employment relationship, the interests of the parties differ. The purpose of this paper is to analyse some aspects regarding the implications of the principle of good faith in the execution of employment contracts, a principle which is valid for the parties to employment contracts.

Информационные обязательства сторон договора страхования предпринимательского риска

In order to protect one’s property interests, entrepreneurs can take advantage of the benefits of the entrepre-neurial risk insurance contract. Despite the effectiveness of minimization of damage from situations against which they have insured themselves, when considering the provisions of civil legislation, as well as a special law regulating the sphere of insurance services, a problem is revealed. The authors point out the absence of established obligations among the participants in the business risk insurance contract, when one of the parties does not have the necessary information that is essential for insurance. Conclusion dwells upon the fact that the policyholder has difficulties in understanding the content of the insurance contract, which leads to an in-crease in the number of disputed cases in judicial practice, as well as to abuses of the insurer as a professional participant in insurance. Amendments are proposed to the current civil legislation, obliging the insurer to inform the insured about certain information in cases established by law, as well as to make changes related to restrictions in the protection of insurance organizations of their right in the event of a dispute with insured persons regarding the reliability and correctness of the information they received.

Invalidity of the employment contract and recognition of the employment contract as not valid as a promising way to protect labour rights

The study is devoted to the substantiation and formulation of proposals for the implementation in Russian labour law of a promising way of protecting individual labour rights — invalidity of the employment contract and the recognition of an employment contract as inactive in court, as well as their ratio. Based on the analysis of the labour legislation of the Russian Federation and other states of the EAEU, an analysis is made of the current state of the normative legal regulation of the issues of the invalidity of an employment contract. It is proposed to fix in the Russian labour legislation the concept, specific grounds for the nullity of an employment contract and its consequences. When considering the provisions of civil legislation on the consequences of the invalidity of disputed transactions, as well as special literature, the author expressed the opinion that the method of protection provided for in paragraph 3 of Article 167 of the Civil Code of the Russian Federation should be considered precisely as a mechanism for the transformation (termination for the future) of the legal relationship that arose from the voidable transaction. It is concluded that the partial extrapolation of this model to the labour law reality will allow to form an original way of protection for the employee and the employer, eliminating the grounds for discussion about the subsidiary application of civil law norms on the conclusion and execution of an employment contract. The main results of the study are the formation of a number of proposals aimed at improving the effectiveness of primarily Russian labour legislation. In particular, a distinction is proposed between the grounds and consequences of the nullity of an employment contract and the recognition of an employment contract as inactive. It is stated that the rights and responsibilities of the parties to the employment relationship, formed before the recognition of the employment contract as inactive, should be considered properly executed. It is also proposed to some of innovations in the Labour Code of the Russian Federation, including a fine (penalty) in favor of a minor employee in cases of violation by the employer of the prohibitions on concluding an employment contract as a preventive measure and one of the consequences of recognizing it as inactive.

Freedom and obligatory performance of a contract in the civil law of Ukraine

An analysis of the legislation of Ukraine, as well as doctrinal approaches and judicial practice regarding the understanding of freedom and obligation to perform a contract in the civil law of Ukraine, has been carried out. It has been concluded that the legislation in many respects creates situation where the principle of freedom of contract is restricted. At the same time, neither legislation nor law-enforcement practice contain any reservations that would allow changing the relevant state of affairs in favor of the principles of dispositive regulation of private law relations.
 It has been noted that the principle of freedom of contract within civil law relations does not have an absolute nature, which is confirmed by the provisions of civil legislation that ensure the procedure for conclusion, execution and responsibility for individual contractual structures regulated by the Civil Code of Ukraine (e.g., a public contract, an accession agreement, etc.), as well as relations connected with consumer protection.
 Based on the conducted research, it has been proposed to single out two main models for restriction of contract freedom: 1) establishment of direct restrictions by the state, by indicating which specific conditions the parties are forbidden to agree on in the contract; 2) consolidation of general evaluation standards that the transaction and its terms must meet by the legislator or higher courts at the level of law or law enforcement practice.
 Attention has been focused on the fact that the ability to realize interests under one’s own responsibility is the basis of the contract, and that contractual binding and responsibility are its inevitable consequences. Despite the fact that the legislation provides for the obligation to perform the contract (Article 629 of the Civil Code of Ukraine), it also provides for cases of contract parties’ release from the performance of their obligations (from the obligation of the contract).

Каршеринг непоименованный: правоприменитель vs законодатель

Introduction: civil legislation, as litmus of the economic relations that have developed in society, fixes the most well-established and frequently implemented legal relations. At the same time, the “mobility” of civil circulation, its digitalization, the emergence and application of new objects of civil rights, new groups of property relations dictate modifications, selective transformation of certain provisions of civil legislation. The deliberation and slowness of the legislator in carrying out reforms are the guarantor of the stability of civil circulation. The situation with a non-defined civil law agreement, the carsharing agreement, is different. In the conditions of well-established applied practice, the approaches developed by legal science, the formed heterogeneous case practice, the legislator has not yet determined the legal fate of contractual carsharing relations. The justification of the normative consolidation of the legal nature of the carsharing agreement, its essential conditions and content to achieve unity of practice and law, is the purpose of this study. Methods: the methodological framework for the research is a set of methods of scientific cognition, among which the main ones are analysis, synthesis, generalization and comparative jurisprudence. Results: new civil legal relations, which are not regulated by the legislator, known as carsharing, are currently interpreted through the prism of analogy in the framework of dispute resolution, by classifying carsharing as the closest legal relationship. The judicial practice reviewed and analyzed in the paper makes it possible to determine the trends of the law enforcer, developed at the level of case law, which, at the same time, do not correlate with the opinion of the representatives of the scientific sphere. The author has identified the following approaches to determining the legal essence of the carsharing agreement and its place in the system of civil contractual relations: 1. The carsharing agreement has all the features of the rental agreement; 2. Carsharing relations should be regulated by the norms of the civil legislation on the lease of a vehicle without a crew; 3. Carsharing relations are of a mixed nature, but tend more towards service relations. Conclusions: the existing heterogeneous judicial practice does not allow coming to an unambiguous interpretation of carsharing relations, determining the essence and place of the studied relations in the system of civil law. Due to the frequent applicability of the carsharing agreement among consumers, its popularity, the author believes there is an urgent need to overcome the legal vacuum in the civil legislation and fix the concept and essential terms of the carsharing agreement in such a way as not to “stifle” new civil legal relations. In the process of lawmaking, when determining the fate of the carsharing agreement, the legislator must resolve a number of controversial issues: what is the legal nature of the carsharing relationship; is the carsharing contract a public contract; what are the limits of the principle of freedom of contract when establishing the rules for using a vehicle; the method of concluding the carsharing agreement.

The place of the NBU in the mechanism of protection of the rights of depositors of commercial banks

The article highlights the problematic issues of implementing the right to protection of depositors of commercial banks, which have been liquidated recently. Fulfillment by banks of obligations to return deposits of individuals is studied comprehensively, taking into account the doctrinal provisions of civil, administrative, economic and banking law. Certain provisions of civil legislation are analyzed when interpreting the content of duties of a commercial bank, under the contract of bank deposit and responsibility of a bank for non-fulfillment of obligations assumed under the deposit contract. The public-legal status of the Central Bank of Ukraine and possibilities of bringing it to responsibility are studied in the light of the latest achievements of administrative and legal science. The article examines different scientific and theoretical legal positions concerning the qualification of actions or negligence of the National Bank of Ukraine. The proposal to hold the central bank liable for inaction and failure to take timely preventive measures to commercial banks, which were subsequently liquidated as insolvent, is formulated. The article provides an overview of the materials of judicial practice and legal position of the Supreme Court of Ukraine, which allowed to state the ambiguity and inconsistency of judicial decisions. As a result of the study the main causes of massive violations of the rights of depositors of liquidated commercial banks, to which the author attributes: the improper implementation of preventive, control and supervision functions of the National Bank of Ukraine; lack of financial resources in the Deposit Guarantee Fund of individuals. Improvement of national legislation, harmonizing it with European standards of banking services will contribute to the protection of the rights and legitimate interests of depositors of commercial banks.

ՍԵՓԱԿԱՆՈՒԹՅԱՆ ԻՐԱՎՈՒՆՔԻ ՊԱՇՏՊԱՆՈՒԹՅԱՆ ԵՎ ԻՐԱՎՈՒՆՔՆԵՐԻ ԻՆՔՆԱՊԱՇՏՊԱՆՈՒԹՅԱՆ ՓՈԽՀԱՐԱԲԵՐԱԿՑՈՒԹՅՈՒՆԸ

Main aim of the article is to analyze the correlation of the institutes of protection of property rights and self-protection of rights. The natural course of civil rights is also due to the fact that this right lies in the sphere of ownership, control and predictability of the rightholder. The legal possibility of self-defense in the system of property rights protection is applicable not only on the basis of the circumstances of self-defense of the rights enshrined in the general provisions of civil legislation, but also in accordance with special norms. The chapter entitled "Protection of property and other property rights" essentially provides for at least two measures of self-defense of the rights enshrined in articles 274 and 277 of the Civil Code. It is necessary to clearly coordinate self-defense measures and the scope of their application in the RA Civil Code, otherwise there are problems with the practical application of self-defense rights. There are no clear legislative delimiters regarding the system of protection of rights. Are the defense guarantees of individual legal institutions part of the system of protection of private law? Can the right holders of rights protected by private law institutions that have a separate system of protection use general forms of legal protection, for example, self-defense of rights? In the course of the study, a comparative legal method was applied. We have come to the conclusion that the protection of property rights on at least two legal grounds can be carried out through self-defense of rights, being enshrined in both general legislative and special parts.

К вопросу о юридической ответственности за информационную и психическую ятрогении и их соотношении

We consider various approaches to understanding and classifying such phenomenon as “iatrogenesis”. Taking into account the specifics of the stated theme, we highlight informational and mental manifestations of iatrogenesis, we identify approaches where these types differ, as well as approaches where they are identical. Due to this, we analyze informational and mental iatrogenesis from the juridical science point of view. We define the reasons for the criminal liability of a medical worker for “classical” mental iatrogenesis as highly controversial. At the same time there is a civil liability, namely, the issue of causing moral harm. In the context of the consideration of informational iatrogenesis, we propose to pay attention to the provisions of Article 137 of the Criminal Code of the Russian Federation and Article 732 of the Civil Code of the Russian Federation, as well as the provisions of criminal legislation on offenses to which medical workers may be subject, and the provisions of civil legislation on redress for the non-pecuniary damage as a civil liability. The conducted research led to the conclusion that it is impossible to identify informational and mental iatrogenesis from a legal point of view. We substantiate the necessity of conducting work at the legislative level on a clear classification of iatrogenesis as a basis for further research on its individual differentiations, which have legal significance both in doctrinal and practical terms.

Das konzept der handlungsfreiheit im ukrainischen und deutschen zivilrecht

The article focuses on researching into freedom of action and freedom of contract in civil law of Ukraine and civil law of the Federal Republic of Germany. The author makes a detailed study of the provisions of civil legislation of Ukraine, namely Articles 6 and 627 of the Civil Code of Ukraine (Ukraine’s CC) which define the essence of the principle of freedom of contract. It is established that the only limits of freedom of contract are peremptory norms which may establish special requirements in respect of the parties to particular contractual relations, and also restrictions ensuing from the need to respect the rights and interests of third parties, as well as public order. Based on the findings of the research, the author draws the conclusion that freedom of action is wider than freedom of contract, since it also covers, for example, unilateral legal transactions, such as freedom to establish the will and etc. At the same time, “freedom of contract” refers to a range of potential opportunities of the parties to particular contractual relations. The author asserts that in terms of the issues under research German civil law has no fundamental differences from Ukrainian civil law. It is noted that freedom of action and freedom of contract, and also their limitations prescribed by the German Civil Code (BGB) are generalized by the concept of private autonomy (as a rule, it is a component of free development of an individual and general freedom of action). At the same time, the author believes that in the German Civil Code there is no equivalent to Articles 6 and 627 of Ukraine’s CC, since BGB does not contain any provisions defining the principles and limits of freedom of contract, freedom of action and private autonomy. An attempt is made to present the juridical, historical and legal philosophical prerequisites of private freedom of action and private autonomy, and also the dangers which threaten them with digitalization. The author believes that the objective of finding implementation of subjective freedoms in private autonomy of civil law, at the same time discarding any reflections on efficiency, is inconsistent with the current state of development of society and the legal system. Particular attention within the framework of private-law regulation is given to the category of “efficiency”. The author notes that currently there is a trend towards perception by the scientific community, the legislator and judicial authorities of the basic provisions of the doctrine which is referred to as “economic analysis of law”. In the author’s opinion, objectivity and development of the concept of reasonable participant to legal relations which lawyers and judicial authorities base their own rational ideas on, do not contradict the foundations of private autonomy. Particular attention is given to development of smart-contracts, which the author believes to help the participants to civil relations to get rid of distrust of the counterparty, and also to avoid the insecurity of subjective rights and interests, information asymmetry, and etc. The article provides a review of the legal nature of the smart-contract, its characteristics and specific features. The author notes the rapid development of the blockchain technology and analyzes its impact on the development of civil law.

Protection of Intellectual Property Rights in Russia: Novels Civil - Legal Regulation

The article is devoted to new provisions of the Russian civil legislation in the intellectual rights protection sphere. The legal analysis of the specified short stories gains relevance and the importance in connection with entering of essential changes into the fourth part of the civil code of the Russian Federation regulating the legal protection of intellectual property. The research objective was definition effective civil – legal rights mechanism protection for objects of the intellectual property taking into account changes in the legislation. The specified purpose defined need of the solution of the following tasks: to investigate relation, and also protection and responsibility measures specifics in the considered sphere; to reveal features of application of new legislative designs in the field of protection of the intellectual rights; to consider features of collecting monetary compensation for violation of an exclusive right. The specified tasks were solved with the use of general scientific and private scientific methods. In the research are formulated the offers and recommendations promoting uniform application of norms of civil law in the case of violation of the intellectual rights. In particular, the conclusions of the distribution of the provisions of the civil legislation of the Russian Federation about the increased responsibility of entrepreneurs in the field of non-contractual breach of intellectual property rights. In general is supported the aspiration of the Russian legislator to the improvement of legal categories in the intellectual rights protection field. DOI: 10.5901/mjss.2015.v6n3s6p257