Code Provisions Research Articles

O prawnym pojęciu pracy zdalnej

Changes taking place in labor markets, society and the global environment have contributed to the search for new solutions. The COVID-19 pandemic has largely indicated the current legislative and organizational shortcomings of remote work. Attempts to regulate remote work were made in a hurry, without taking into ac-count significant terminological problems. It became necessary to regulate and specify this institution in the provisions of the Labor Code. The purpose of this article is to analyze the concept of remote work in the legal regulation before April 26, 2023 and in the amended Labor Code. The method of defining the concept of remote work by the legislator was indicated, its essential elements and attention was drawn to what problems may arise in this connection.

THE ISSUES OF LEGAL LIABILITY IN TRANSFER RELATIONS

A transfer contract is a specific type of legal contract, which can be regulated not only by civil law but also by the corporate rules of sports federations. The regulation of transfer contracts in football is particularly relevant, as the Russian Football Union (RFU) regulates each stage of transfer relations in detail. Specifically, the RFU Regulations establish sanctions for violating the procedure of athlete transfer. These sanctions can be applied to both sports clubs and athletes. At the same time, the legal nature of these sanctions remains ambiguous, as the RFU is not a governmental body authorized to hold individuals legally liable. Nevertheless, the doctrine often highlights the concept of sports liability as a unique type of liability because the RFU has the authority to hold individuals liable under this type of liability. In addition to sports liability, the possibility of holding participants in transfer relations liable under civil law remains debatable. On the one hand, a transfer contract is a civil law agreement and, accordingly, the general provisions of the Civil Code of the Russian Federation on obligations should apply to it. On the other hand, questions arise about the possibility of combining civil sanctions with sports sanctions and about the possibility of considering civil liability prior to sports liability. In this article, the authors answered the above questions and structured the liability systems in transfer relations. Conclusions were made about situations in which sports or civil liability is applied, as well as about the possibility of applying both types of liability for a single violation by a sports club or a football player.

Shortcomings in the Regulations of Criminal Law on Cyber Crime and Recommendations

In the modern digital space, personal data can be attacked and used for illegal purposes. On 17 April 2023, the Vietnamese Government passed Decree No. 13/2023/ND-CP on Protecting Personal Data. The Criminal Code of Vietnam 2015 (amended in 2017) set up cyber-related crimes to protect the safety of cyber activities in general and personal data in particular. However, there are a number of shortcomings in the Criminal Code in the comparison with the Decree 13/2023/ND-CP and international treaties on cybercrime. This article analyzes these shortcomings and provides recommendations to revise relevant provisions of the Criminal Code.

손해배상에 관한 민법 개정 예비초안 검토

This article introduces and reviews the content of the preliminary draft prepared by the Civil Code Amendment Committee, established in June 2023. The focus is on the amendments related to damages in Chapter 1, Section 2 of Part III of the Civil Code, which deals with the effectiveness of obligations. Specifically, it examines the proposed revisions to Article 390 (Non-performance of Obligations and Damages), Article 393 (Scope of Damages), Article 394 (Method of Compensation for Damages), Article 396 (Comparative Negligence), Article 397 (Special Provisions for Monetary Debt Default), Article 398 (Liquidated Damages), and the newly proposed Article 395-2 (Reimbursement of Expenses). The primary perspective for this review is to ensure the continuity and connection of discussions on the amendment of the Civil Code by comparing it with the 2004 amendment proposals and the 2013 revision draft. Additionally, in order to enhance the efficiency of the discussions, the review will focus on the modifications in the preliminary draft compared to previous amendments, as well as the alternatives proposed by the review committee. This review will be conducted with reference to domestic legal theories, precedents, and foreign legislative examples from a legislative standpoint. From a practical perspective, the most crucial aspect of the current Civil Code revision is to codify established doctrines and case law to prevent further interpretive disputes and clarify legal expressions. Particularly, as in the case of the preliminary draft concerning the regulations on damages, where the abstract nature of the Civil Code provisions has led to the resolution of cases through interpretation, codifying established case law can enhance predictability. However, in the process of codifying case law, it is necessary to consider whether such codification may hinder the development of legal principles through interpretation by fixing the doctrines in a manner that could affect the future evolution of legal theories and case law.

Enhancing shear capacity in reinforced concrete deep beams with openings using textile reinforced concrete

This paper showcases shear testing conducted on seven reinforced concrete deep beams featuring square openings, aimed at demonstrating the efficacy of a shear strengthening approach utilizing textile-reinforced concrete (TRC). This experimental program researches two types of openings of 150 × 150 mm and 200 × 200 mm at the centre of the shear spans. The solid beam undergoes testing for comparison with both the unstrengthened and strengthened beams containing openings. The study evaluates the effectiveness of TRC through a comparison of load-displacement curves, cracking patterns, and strains in reinforcements between the strengthened and un-strengthened beams. The experimental results indicate that the TRC strengthening technique effectively boosts the shear-carrying capacity of beams. Examination of the tested beams reveals a significant enhancement in stiffness at the point of maximum force, with improvements ranging from 22% to 86%, depending on the opening size and the number of reinforced textile layers. Rupture in TRC and crushing in the concrete strut are observed in the strengthened beams, whereas the un-strengthened beams show severe crushing in concrete at failure. The test results are compared with calculations based on code provisions, revealing that the prediction model consistently yields values 11 to 44% higher than the experimental results.

О коллизии норм гражданского законодательства в части определения порядка управления автономной некоммерческой организацией

Introduction. The article is devoted to the comparative legal analysis of the civil legislation norms establishing the requirements to the management of an autonomous non-profit organisation, which allowed us to identify the conflict of certain provisions of the Civil Code of the Russian Federation and the Federal Law ‘On Non-Profit Organisations’. Resolving the identified contradictions requires amendments to the special legislation on non-profit organisations to bring it into line with the requirements of the Civil Code of the Russian Federation. The aim of the work is to propose improvements to the Russian legislation on non-profit organisations, in particular, determining the procedure for managing autonomous non-profit organisations. Methods. When writing the article, the author used the dialectical method of cognition, general scientific methods of cognition, namely, analysis and synthesis, as well as such specific scientific methods as comparative-legal, formal-logical and other methods. Results. Based on the study of the norms of the Civil Code of the Russian Federation and the Federal Law ‘On Non-Profit Organisations’, the measures to resolve the identified conflict regarding the definition of management of an autonomous non-profit organisation are proposed. Guided by the principle of priority of a codified normative act, the author proposes to exclude from the Federal Law ‘On Non-Profit Organisations’ the norms that contradict the Civil Code of the Russian Federation, which will make it possible to distinguish the competing norms of the above legal acts and preserve the norms concerning public legal aspects of the status of a non- profit society.

Міжнародно-правові та національні гарантії реалізації права особи на захист життя і здоров’я

This article analyzes the norms of international and national legislation concerning the right of individuals to life and health protection, through the lens of their practical implementation. The study identifies the positive and negative aspects of the legislative regulation of the right to protection, examines the reasons for states’ non-compliance with certain international legal treaties, and offers several remarks on the effectiveness and feasibility of the established legal provisions. In particular, the publication emphasizes the high efficacy of the norms of the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child in light of the practice of the European Court of Human Rights and the activities of UN specialized committees. At the same time, the paper criticizes the effectiveness of the provisions of the Geneva Conventions and their additional protocols due to the lack of proper mechanisms for their implementation and identifies the main reasons for states’ violations of the aforementioned international treaties. Among the main issues of the implementation of the norms of these conventions, the author identifies the lack of political will of the states, insufficient training and awareness of military personnel, non-compliance by states with international justice mechanisms, and the lack of effective control and monitoring of compliance with the norms of the conventions. Additionally, based on the analysis of the practice of applying the legal rules on necessary defense, the article highlights the urgent need to define the time limits of the defense situation and the criteria for determining the proportionality of actions during defense at the legislative level. Furthermore, to improve and eliminate inconsistencies between the provisions of the Criminal Code of Ukraine and the Constitution of Ukraine, the author proposes specific amendments to the Basic Law.

Incorrect interpretation of the law by the court

The subject of this study is the main trends that have developed in judicial practice related to the assessment of the correctness of the interpretation of the norms of law by the court. The purpose of the study was to identify the main approaches used by law enforcement agencies, primarily courts, in assessing the possible existence of an error in the interpretation of the applied law by a lower court.General scientific and special methods of scientific cognition were used in the research. Among them are analysis, synthesis, deduction, induction, the systematic method, the hermeneutical method and the legal-dogmatic approach. In particular, published court decisions were analyzed, scientific literature and current legislation were studied, after which conclusions were drawn about the state of law enforcement practice and the prevailing trends when considering by higher courts the issue of a possible error in the interpretation of the law committed by a lower court.The main content of the article is the results of the analysis of judicial practice, the purpose of which was to identify the main trends in judicial practice related to the assessment of the correctness of the interpretation of the norms of law by the court. The practice of applying the provisions of the procedural codes of the Russian Federation, providing for the consequences of a misinterpretation of the provisions of normative acts by the court, is considered. As a result of the conducted research, the main problems that courts face when assessing the correctness of the interpretation given by their colleagues from the lower court were identified. During the analysis, special attention was paid to such aspects as the causes of erroneous interpretation, ways to detect and eliminate the identified error, and the consequences of making an error.Based on the results obtained, conclusions were formulated, among which it is worth noting that judicial errors in the interpretation of normative acts are quite common. At the same time, procedural legislation regulates such situations in different ways in different types of legal proceedings. Having discovered a judicial error in interpretation, the higher court most often does not indicate specific norms that have been misinterpreted, but offers its own solution to the dispute. The errors of the courts in the qualification of those mistakes made by the lower courts were also noted.

Compressive Strength Characteristics of Compressed Stabilized Earth Block (CSEB) Units and Walls

This paper is mainly focused on compressive strength behavior of Compressed Stabilized Earth Block (CSEB) units and CSEB walls. Compressed Stabilized Earth Block (CSEB) is a rectangular block used in wall construction. The ingredients of CSEB are soil, cement, fine aggregate, crusher dust, and a small amount of water. These blocks have less energy consumption and carbon emission, and they provide improved thermal insulation. In addition, they use local resources and disseminate appealing aesthetics with elegant profile and uniform size. Due to these advantages CSEB can be used as a green construction material. This research aims to study the strength characteristics of CSEB wall in compression and evaluate the suitability of CSEB walls as load bearing walls in structures. This research studies physical and mechanical characteristics of CSEB units made from red residual soil of Lele (Lalitpur) with 8% cement for stabilization. This paper discusses the compressive strength behavior of walls constructed of size 0.660m x 1.100m x 0.220m using CSEB units in cement sand mortar and stabilized mud mortar separately which were tested after 28 days. The experimental values after laboratory testing of CSEB masonry wall with height to thickness ratio 5:1 for cement sand mortar (1:6) and stabilized mud mortar (stabilized with 8% cement and 16% extra sand) separately are compared with relevant values from different codes. Results obtained from compressive strength tests of masonry walls constructed in the laboratory and those values from different codes concerning the strength of masonry unit and mortar are compared and found to be in agreement. The comparison of laboratory results with codal provisions of design of masonry walls illustrate that CSEB masonry walls can be designed in the similar way as brick masonry walls.

Moment redistribution capacity in prestressed concrete continuous beams

In prestressed concrete continuous beams, building code provisions often allow for a reduction in the moment at a critical section (calculated through elastic analysis). This reduction is permitted as long as the moments in all other sections are adjusted to maintain equilibrium and support the designated loads. However, the allowable moment redistribution percentage (MRP) for prestressed concrete beams (PCBs) remains a topic of debate. Many codes currently assign a similar MRP limitation to both PCBs and reinforced concrete beams (RCBs). This approach might be over-simplistic for PCBs due to their unique behaviour. A method for identifying the maximum available MRP is proposed in this article. An in-depth study was conducted on the maximum available MRP of PCBs based on calibrated finite-element models. The results showed that parameters such as the passive reinforcement ratio, steel yield strength, slenderness ratio, eccentricity of prestressing tendons, concrete grade and load pattern, which are not considered in the codes, influence the maximum available MRP to an extent. Using the same permissible MRP as RCBs may thus be inappropriate. An equation is proposed to estimate the maximum available MRP for PCBs.

Historical outline of the development of the principle of good faith in civil procedure in Germany and France

The article analyzes the concept of good faith on the example of its development in civil proceedings in Germany and France. The author traces the relationship between the good faith of Roman civil procedure and the good faith of continental European countries, which was developed through the reception of Roman law. he author examines a number of sources of the so-called barbarian law in the context of good faith and its negative manifestation - bad faith in procedural communication and counteraction thereto. The author defines good faith as a condition for proper procedural behavior in the sources of law of the Holy Roman Empire of the Germanic nation and traces the history of the term Treu und Glauben. The author examines the concepts of correlation between the Roman term bona fides and the German term Treu und Glauben, which has become a general principle of various branches of law, including civil procedure law. The author examines the presence of the good faith principle in the modern German Code of Civil Procedure. The author also analyzes the concept of the formation of the principle of good faith in civil proceedings in France, for which purpose the medieval rules of customary law contained in such legal sources as the Coutumes Beauvais are studied. Special attention is paid to an important source of French procedural law of modern times - the Ordinance of Louis XIV of 1667 (Louis Code), which was the basis for the Civil Procedure Code of Napoleon of 1806 and whose provisions contained measures to counteract the abuse of procedural rights, and in some cases the term good faith as a measure of exemplary procedural communication. The author also reviews the provisions of the current French Code of Civil Procedure, which entered into force on January 1, 1976, where the principle of good faith is applied both as a counteraction to unfair procedural behavior and as a standard of procedural behavior which provides for the proper performance of duties and exercise of rights. The author determines that the principle of good faith is primarily found in substantive law, both in Germany and France, from where it is integrated into procedural law.

Efficacy of IS Code Provisions for Design of Eccentrically Loaded Single Angle Compression Members

In practical applications, steel single angles are often subjected to eccentric loading when connected to a gusset plate through one leg only, resulting in complex compression behaviour. This behaviour has not been as extensively studied as that of concentrically loaded members. Various international codes of practice offer differed approaches for designing these elements. The literature indicates that the Indian Standard Code IS 800–2007 accurately predicts the axial capacity of eccentrically loaded single angle columns. However, a recent amendment to IS 800 in 2024 introduced modified design provisions. This study is the first to explore the implications of these latest design provisions by comparing them with earlier provisions and experimental strengths reported in the literature. Initially, the design strengths as per the previous and latest design provisions for various Indian Standard Angles (ISA) were presented and compared accounting for varying slenderness ratio, plate slenderness ratio (b/t), and different types of end connections and restraints. The findings reveal that the latest design provisions generally result in much higher design strengths compared to the earlier provisions, with a maximum increase of 104.84%. Upon noticing the significant variation, this study is further extended to compare with the reported data available in the literature. The nominal strengths calculated using the latest provisions were often higher than the strengths reported in the literature considered in this study, indicating potential unsafe design.

Search for a Standard of Proof in the Lithuanian Civil Procedure

The article analyses the issues related to the standard of proof in the Lithuanian civil procedure. The study reveals that the social school of the civil procedure, on which the Code of Civil Procedure of the Republic of Lithuania is based, and the objective of establishing the substantive truth justify the application of the intime conviction standard in Lithuanian civil proceedings.The first part of the article analyses the historical sources of the Lithuanian civil procedure law which lead to the conclusion that, since the 19th century, the Lithuanian civil procedure has followed the ideas based on the social civil procedure school.The second part reveals that the concept of substantive truth, which means that the Court is fully or almost fully satisfied as to the correctness of the decision to be given in a case, has the closest connection with the social civil procedure school. This notion of truth determines a specific standard of proof, i.e., the application of the intime conviction standard.In the third part, by taking into account the social school of the civil procedure, the purpose of substantive truth and the provisions of the Lithuanian Code of Civil Procedure, it is concluded that the standard of intime conviction must be applied in Lithuanian civil proceedings.The fourth part reveals the Case Law of the Supreme Court of Lithuania concerning the standard of proof and its developments.

The Procedure for Appointing a Forensic Examination: Problems of Legal Regulation and Law Enforcement Practice

The procedural procedure for appointing a forensic examination is not clearly defined and raises a number of questions. The analysis of procedural legislation made it possible to identify aspects that need clarification for law enforcement practice: the grounds for appointing commissions, complex and additional forensic examinations, the procedure for appointing forensic examinations in court, the definition of a forensic institution. The need for standardization of forensic examination based on the unification of its main provisions in industry procedural codes is shown. The introduction of additions and changes to the procedural legislation regulating forensic examination is justified.

Rules on Family Enterprise in Czech Law

For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominant in the category of today’s Small and Medium-sized Enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that hasn’t solved many of the problems associated thereto. Only in 2012, the new Czech Civil Code, Act. No 89/2012 Sb., introduced the institute of a family enterprise as a completely new institute in Czech Civil law. The present paper aims to analyse the key rules of the existing legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as to highlight the potential weaknesses in the regulation itself.

成年监护范式的反思与进路：从替代决定到协助决定

Substitution decision and assistance decision are the two classic paradigms of adult guardianship. Article 22 of the Civil Code points out the position of applying partial guardianship to adult wards based on the integration of Article 47 of the former Contract Law. Article 35, paragraph 3, of the same law expresses the new concept of guardianship in a textual sense, which is “based on independence, supplemented by safeguards and assistance”. Both articles make it clear that adult guardianship is not full guardianship, but there is a dispute as to whether it should be primarily independent and assisted guardianship or non-independent and substituted guardianship. The understanding of the adult guardianship paradigm should be based on the systematic interpretation of Chapter 2 of the General Provisions of the Civil Code, and the direct interpretation of Article 35(3) as assisted guardianship lacks the value support of other articles. This paper will start from the argumentation of the Civil Code’s legislative technology for the guardianship model and the paradigm it adopts, analyze the problems of the adult guardianship system under the substitute decision, such as the ill-defined scope, the re-marginalization of the elderly, and the emphasis on property rather than human beings, etc., and then finally, through the expansive interpretation of Articles 22 and 33, achieve the unity of the value concepts and scope of exercise with Article 35, paragraph 3, and construct the space of the law for the transformation of the assisted decision.

In and out of plane behaviour of TRM strengthened heritage masonry elements

This paper presents detailed experimental and analytical investigations into the influence of textile-reinforced mortar (TRM) strengthening on the in-plane and out-of-plane response of unreinforced heritage masonry (URM) elements. The URM wall elements consist of hydraulic lime mortar and fired-clay bricks, and the TRM reinforcement employs mortar-embedded layers of alkali age-resistant glass meshes. Apart from the material characterisation tests on mortars, bricks, and TRM coupons, the experimental programme includes axial compression tests on wallettes, diagonal compression tests on square panels, as well as four-point bending tests on rectangular panels. In the latter, the bending loads are applied either parallel or perpendicular to the bed joints in order to assess the joint layout effect on the behaviour. With the aid of digital image correlation, the in-plane and out-of-plane enhancement in stiffness, strength, and ductility of the masonry elements due to the TRM strengthening is quantified, while the TRM influence on the crack patterns and failure modes is also examined. The results show that the number of mesh layers has a significant influence on the behaviour for the out-of-plane bending tests but plays a less pronounced role in the in-plane shear cases. Modified analytical models for the in-plane shear and out-of-plane bending capacities of reinforced masonry elements, of the type examined in this study, are also proposed and assessed alongside existing codified procedures. The application of current code provisions results in overly conservative estimates. In contrast, the proposed analytical approaches for determining the in-plane and out-of-plane strength provide close prediction of the experimental capacities from this study as well as those from a wider collated database of previous tests, and are therefore suitable for implementation in practical assessment and rehabilitation guidelines.

Threat in the context of identifying the victim

It is indicated that an important feature of the injured person, which allows to distinguish him from other persons, is related to the infliction of damage. The etymological and semantic analysis of the term «victim» shows that damage is an integral feature of a victim. The article examines the possibility and expediency of recognizing a person as a victim in the criminal law field in the event of a threat to cause harm to him. Provisions of the current Criminal Code of Ukraine, the project of the new Criminal Code of Ukraine, national judicial practice are taken into account. It is argued that in context of the injured person, term damage is understood in two meanings: 1) narrowly (includes only real damage); 2) in a broad sense (includes both damage and the danger/threat of causing it, as well as the threat). At the same time, attributing the threat as an independent action to a type of harm, as suggested by authors of the draft Criminal Code of Ukraine, seems debatable, because in such a case the term «threat» will denote both an action and a consequence. It is also worth paying attention to whether there is a need to use both the term «threat» and the term «danger» in the draft Criminal Code of Ukraine. It has been established that the term «threat» in the context of the definition of the victim means both actual moral or other types of harm to him, as well as the threat/danger of his task. It has been proven that victim in a certain composition of a criminal offense can be characterized not only by harm in its narrow sense, but also by threat or danger of its occurrence, that is, harm in the broad sense, as well as the threat of harm. The threat in the context of the criminal-legal understanding of victim is important, first of all, if there is no implementation. In case of the implementation of a threat, which is provided as an independent crime and is a stage of a single criminal activity, united by a single intention and aimed at causing damage to the same object, qualification under the article providing for responsibility for the threat is not required, and therefore and there is no need to establish the victim of the threat. If a threat is a way of committing an act, then the victim is determined in the context of act in general, taking into account the threat as a way of committing it.

Inheritance Law as interpreted by the Supreme Court in Albania

Abstract In Albanian civil law, inheritance is established as a cornerstone institution within the legal framework. It arises upon the death of an individual and is categorized in two forms: legal inheritance and testamentary inheritance. This legal concept encompasses all state-issued norms that regulate property relations arising from an individual’s death and governs the transfer of assets from the de-cuius (the testator) to their heirs. This process confers civil rights and obligations upon the inheritors. Within civil law, inheritance pertains to property relations that commence posthumously, defined as “the lawful or testamentary transfer of the deceased’s property to one or more individuals in accordance with the provisions of the legal code.” The legal relationship of inheritance in Albania is contingent upon the death of the testator, marking a pivotal legal fact. This relationship is characterized by its dual nature: it encompasses both property and familial dimensions. The property aspect becomes manifest at the moment of the testator’s death, as their rights and real property are transferred to their heirs. Meanwhile, the familial dimension pertains to specific qualities required of heirs, such as blood relations, adoption, or marital status. A will has legal effect only at the moment of the testator’s death, when the inherited property automatically transfers to the heirs by operation of law. The death of the specified individual is essential for initiating these legal effects.

Numerical study on concentrated load capacity of chosen HC floors

Precast prestressed hollow core floors are able to distribute concentrated loads due to the presence of cast on site joints and torsional stiffness of individual units. By considering this phenomenon in design, the directly loaded element is able to withstand loads much higher than in case of a single element analysis. The current design method provided by European Standard EN 1168 as well as different analytical methods can provide results that do not fully represent the actual performance of the floor. Due to that fact that a sparse amount of experimental data on full scale floor exists, out of which just a handful is documented well, the results of code provisions and analytical models are difficult to evaluate. Based on previous numerical analyses, validated by existing experimental data, numerical models of three hollow core floors were prepared which were used to design new experiments on full scale hollow core floors. Analysis focuses on the Ultimate Limit State of the HC floors, obtained failure loads are compared to single element results and with the results of the EN 1168 standard calculations.