Rights In Rem Research Articles

The law for mini-organ prototypes in a dish. Mapping the legal status options for organoids in Swiss law.

Advances in generating human mini-organ prototypes will further improve fundamental research, disease modeling, drug screening and the development of personalized medicine. Currently, there is no legal definition, identified legal status, or existing regulatory framework for organoids. Ethical discussions regarding brain and embryo-like mini-organ models leave researchers uncertain about the extent to which work on any organoids is legally permissible. The legal protection of human embryos, many other separated human body parts as well as organoids is more complex than the application of the traditional rules of rights in rem or of the law of personality alone. The paper's focus is to examine whether the legal status of organoids or lack thereof, could influence their concrete regulatory framework, or whether a legal status in private law is necessary for their regulation. This paper deliberately chooses not to attempt a unifying theory of law but rather to argue for a possible regulation of organoids using the example of Swiss law. While, at present, there is no comprehensive research addressing either the status or the regulation of organoids, we believe that the argumentation presented could improve the overall understanding of how a potential organoid regulation could be set out within national legal frameworks.

Wybrane zagadnienia dotyczące prawa do odszkodowania za wywłaszczoną nieruchomość pod inwestycje drogowe

One of the important issues in the process of real estate expropriation is defining the group of entities entitled to compensation. This arises from the undetermined legal status of properties, limited rights in rem, claims by banks and bailiffs, and the lack of inheritance proceedings determining the current circle of owners. Another difficulty is the lack of precise legal norms and inconsistent jurisprudence. The aim of the study is to identify the problems related to determining the group of entities entitled to compensation for real estate expropriated by law based on the decision granting permission for the implementation of a road investment. The research thesis is that the legal norms regulating compensation need to be supplemented to streamline and standardise the processes of determining compensation for real estate expropriated for road investments.

Exploring the Evolution of Contractual Concepts within Regulation No 1215/2012 Through CJEU Judgments: Civil and Commercial Matters, Contracts, Tenancies of Immovable Property, and Provision of Services Under Examination

Starting with the ruling of the Court of Justice of the European Union in the Obala case, this article explores: how the Court has redefined the concepts of ‘contract matters’ and ‘tort, delict, or quasi-delict matters’; actions related to ‘tenancy agreements for immovable property’ versus ‘rights in rem’; and the evolving interpretation of ‘services’ within the Brussels I Recast Regulation on jurisdiction, recognition and enforcement of judgments in civil and commercial matters. It also illustrates the discrepancies in the analysis of the term ‘civil and commercial matters’. The Obala ruling has led to changes in how these concepts are understood and studied in certain contexts, thereby reshaping their interpretative contours. As a result, this article conducts a retrospective analysis to grasp these changes and their implications.

Rights against the world

Abstract For philosophers, rights against the world are equivalent to rights in rem. Contrary to what Hart thought, however, this does not make them equivalent to general rights. Rights in rem contrast with rights in personam, whereas general rights contrast with special rights. As I explain, rights against the world can be either general rights or special rights. My explanation follows Waldron’s strategy of exhibiting property rights as justified by Locke’s theory of property as a case of rights in rem that are also special rights. Moreover, despite what ‘in rem’ means in Latin, rights against the world include more than property rights. For example, they also include moral human rights. With moral human rights and property rights alike, the correlative duties are borne by ‘everyone’, understood in a dynamic sense I undertake to specify.

Bridging the Divide between Rights In Personam and Rights In Rem in Land Transactions: A Comparative Perspective of Australian and South African Law

In transactions relating to land a distinction is made between the creation of personal or contractual rights (rights in personam) by contract, and real rights (rights in rem) via the registration process. Historically, additional, or special rights or interests have been conferred upon the vendor and purchaser to provide protection for the time period between the creation of rights in personam and the creation of rights in rem. The focus of this article is to identify and examine the nature and operation of these protective rights and compare their application in Australia and South Africa. These protective rights are recognised in different ways in both Australia and South Africa via common law, equity and legislation. It is concluded that interim protective equitable rights in Australia and a special category of personal rights under South African law provide a bridge to the creation of full in rem rights.

Захист майнових прав подружжя при здійсненні ним прав на корпоративний пай як об’єкт права спільної сумісної власності

The article analyses the legal nature of a share in the authorized capital of a business entity (corporate share) as an object of civil rights. It identifies practical ways to protect the property rights of spouses to a corporate share in cases where it is an object of joint ownership. As a result of the study, the author came to the following conclusions. 1. A share in the authorized capital of a business entity (a corporate share is an object of civil rights that are free in civil turnover, and therefore, it can be both an object of rights in rem and a subject of obligatory rights. Suppose one of the spouses contributes to the charter capital of a business company at the expense of the marital property. In that case, the corporate share belongs to the spouses on the right of joint ownership. 2. The choice of an adequate remedy will depend on the object of the legal relationship in which the corporate share is involved. If the right to a share is violated, unrecognized, or disputed within the framework of a legal relationship, then the appropriate remedies will be in rem. If the right to a corporate share is violated in a legal relationship of obligation, it can be protected using legal methods of obligation. 3. The substantive methods of protecting the rights to a corporate share as an object of the right of marital property include a claim for recognition of the right to a corporate share, a claim for division of a corporate share, vindication, and adverse claims. 4. Obligatory remedies for the protection of rights to a corporate share as an object of marital property include a claim for recognition of a transaction based on which rights to a share in the charter capital were transferred to a third party as invalid if it was made without the consent of the other spouse. However, the court may only satisfy such a claim if the counterparty to the transaction is in bad faith. In other cases, the spouse whose share was alienated without the consent of the other spouse is entitled to compensation of half the value of the corporate share from the other spouse. 5. In case a spouse who is not a member of a business entity receives compensation instead of dividing the share in kind, the market value of the corporate share determines the amount of compensation. Keywords: marital property right, corporate share, share in the authorised capital of a business entity, remedies, property division agreement, property rights, rights in rem, obligatory rights, authorised capital, corporate rights.

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.

Chronology of Practice: Chinese Practice in Private International Law in 2022

Abstract This survey contains materials reflecting the Chinese practice of private international law in 2022. Firstly, the changes in the statutory framework of private international law in China include two legislative acts and one administrative regulation. Moreover, three international treaties in this regard were ratified by the National People’s Congress. Secondly, three judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended, and 56 typical cases in six judicial documents on different topics were issued by the SPC. Thirdly, four typical cases on Chinese courts’ jurisdiction; 14 cases on choice of laws on various issues such as foreign investment contracts and negative lists, rights in rem, life insurance contracts and mandatory rules; one case on international judicial assistance rendered to an Argentinean court; three cases on interim measures; three cases on the recognition and enforcement of foreign judgments; nine cases on international arbitration including international sports arbitration and foreign awards, are selected in this survey for their emerging significance. Fourthly, the provisions regarding the extraterritorial application of Chinese laws have been identified for the first time in this series of surveys, shedding light on this aspect of private international law in China. They include those contained in, inter alia, China’s Anti-Monopoly Law, Anti-foreign Sanctions Law, Export Control Law, Securities Law, the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, as well as the Provisions on the Unreliable Entity List.

Legal Remedies for Government Intervention in Cross-border M&A: A Comparative Research Between China and the United States

The role of the government in cross-border M&A, as well as the intervention means and authority it adopts, have always been the focus of controversy in the practical and theoretical circles. Based on the perspective of comparative research between China and the United States, this paper, and then first analyzes the national security review systems of different countries analyzes the remedies when the governments intervention in cross-border mergers and acquisitions causes damage to private enterprises. At the same time, this paper will also analyze the existing system of government intervention in cross-border mergers and acquisitions of different countries and discuss the development trend of state intervention system in the new era based on the analysis of the TikTok case. Finally, this paper will ultimately propose suggestions for improving Chinas existing national security review system and further propose suggestions for improving the existing relief system based on the analysis of existing remedies. Suggestions for improving Chinas national security review system mainly include the formation of laws with a higher level of effectiveness, the improvement of supervision mechanisms, and the provision of remedial rights for private enterprises. The suggestions on the improvement of the remedy system mainly focus on the improvement of the host country, mainly including the power of judicial review granted to domestic judicial institutions and the improvement of the system of prior consultation agreements.

ISSUES OF DETERMINING THE COMPOSITION OF PARTICIPANTS OF JOINT HOUSE OWNERSHIP IN THE REPUBLIC OF BELARUS AND PARTICIPANTS OF A CONDOMINIUM IN THE REPUBLIC OF KAZAKHSTAN

This scientific article presents a comparative legal study of the concepts of "participants of joint household ownership" in the Republic of Belarus and "participants of a condominium" in the Republic of Kazakhstan, determines their relationship with persons who are obliged to pay for housing and communal and other services in the considered legal relationship. The methodological basis of this work is a combination of general scientific and special legal methods of cognition. The scientific approaches presented in the article testify to the importance of an unambiguous definition in the legislation of the subjects of legal relations that develop in multi-apartment residential buildings. In addition to the owners of premises, apartments or other premises (including non-residential) in multi-apartment buildings may belong to legal entities owning property on limited rights in rem. In the Republic of Belarus, as well as in the Republic of Kazakhstan, the limited property rights of legal entities are the right of economic management and the right of operational management. At the same time, Belarusian legislation does not classify such entities as participants in joint home ownership, which occurs in multi-apartment residential buildings, which creates problems in the distribution of costs in managing the common property of joint household ownership, which are often assigned to the owners of premises (residential or non-residential). The judicial practice of the Republic of Belarus, analyzed in the article, testifies to examples of different application of the legislation on joint household ownership. On the basis of the study presented in this article, the author comes to the conclusion that it is necessary to improve the legislation of the Republic of Belarus, which regulates legal relations on joint home ownership, in terms of clarifying the entities that are obliged to pay the costs of maintaining the common property of joint home ownership

Property rights to others' property in the context of updating the civil legislation of Ukraine

Ukraine has constitutionally established its European integration aspirations, and therefore ensuring effective and proper legal regulation of property rights to other people's property in the context of updating the civil legislation of Ukraine are important issues. Carrying out reforms in the context of European integration processes is intended to change and improve approaches to both the grounds for acquisition and termination of real property rights. Therefore, it is appropriate to identify trends in their development, taking into account proposals for their reform, since any significant change in this area will inevitably lead to a new quality of legal regulation of the studied relations. Regulation of property rights to other people's property should be carried out taking into account the impact on this sphere of legal relations of the "normative content" of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their member states, on the other hand.
 It has been expressed in the article a position on certain aspects of the legal regulation of the acquisition of ownership by acquisitive prescription, servitude, emphyteussis, superficies, acquisition or preservation of property without sufficient legal grounds. The issue of proper legal regulation of forced termination of rem rights to property has become especially relevant in modern conditions. Therefore, special attention has been paid to requisition as a basis for terminating real property rights.
 The author concluded that the departure from the concept of the absoluteness of property rights was dictated by the change and expansion of the list of property rights, which in the modern period cannot be considered closed. The Civil Code of Ukraine emphasizes that other property rights to other people's property may be established by law. Interpreting this provision, one can come to the conclusion that the list of property rights defined in Art. 395 of the Civil Code of Ukraine is established by law, and not by agreement of the participants in property relations.

Situating the Moral Basis for Secession in Territorial Rights: A Dualist and Nonalienation Account

Abstract This article grounds the morality of secession on two forms of collective self-determination: one manifests the communal goods of secessionists and the other the value of shared political institutions. Secession is morally valuable when the two are incompatible such that the claimant confronts persistent alienation. For remedial rights theories, only ‘strict violations’ permit secession. For primary rights theories, ‘broad violations’ grant secession as a last resort, and so this thesis, ‘collective self-determination as nonalienation’, should be accepted regardless. First, as the two collective forms of self-determination develop two forms of territorial rights, it supplements cogent accounts of territorial justification for, and claims to, secession. Second, as persistent alienation can have both strict and broad interpretations, it also provides moral grounds shared by remedial and primary rights theories if they concede the value of collective self-determination. The strict sense refers to persistent coercion that violates personal autonomy and nullifies state legitimacy. The broad interpretation denotes long-term political frustration caused by unreasonable prevention of greater collective autonomy that even legitimate states may achieve. Third, to verify whether this amounts to long-term political frustration and to address persistent alienation, secession should be regarded as a last resort, despite its support from the primary rights account.

RIGHTS OF HOME-BUYERS AS FINANCIAL CREDITORS UNDER THE INSOLVENCY & BANKRUPTCY CODE

Real estate sector of India is a booming sector, and has a very much influence in Indian Economy. For quite a long-time homebuyers/allottees faced hardships for sorting their remedial rights against the default’s actions of the Real estate companies which changed drastically after the evolution and amendments made in The Real Estate (Regulation & Development) Act, 2016 (RERA) and Insolvency and Bankruptcy Act, 2016 (IBC) placing them onto the pedestal of Financial Creditors status which only further strengthen the same. IBC main role is to avert insolvency by revitalizing poorly businesses however, not a retrieval instrument for creditors but a resolution apparatus to blow natural life into strained monies of the CD. The new Reverse Corporate Insolvency Resolution Process (CIRP) concept by National Company Appellate Law Tribunal (NCLAT). However, have fewer-to-one practical implications but such out-of-the-box thinking was direly needed.

Prawa rzeczowe przysługujące obywatelom Ukrainy na tle obowiązujących w Polsce norm kolizyjnych

Mass inflow of Ukrainian citizens into Poland gives rise to many legal issues, including conflict-of-law questions about rights in rem held by such persons both in respect of property left in Ukraine and property brought to Poland. In the context of the prolonged stay of such persons in Poland, one crucial task may be, for example, to establish the law applicable to the disposal of their property brought to Poland under legal acts made in Poland.The Agreement between the Republic of Poland and Ukraine on legal aid and legal relationships in civil and criminal matters, done at Kiev on 24 May 1993, applicable in Polish-Ukrainian relations, devotes several provisions to those questions.However, the Agreement ignores the question of the law applicable to property law relationships having movable items as their objects. In particular, it does not designate the law applicable to contracts transferring the ownership of movable assets and contracts encumbering such assets with limited rights in rem. The relevant norms in this regard are conflict-of-law rules of the Polish Act of 04 February 2011 — Private International Law, and of the Ukrainian confl ict-of-law Act of 23 June 2005, designating the law applicable to property.Accordingly, as long as movable items are located in Poland, Polish law will apply with regard to the respective property law relationships. This is provided for in Article 41 (1) of the Private International Law Act. However, Polish law will not apply to obligational and property rights having as their object immovable properties located in Ukraine, which is covered by Article 32 of the Agreement of 24 May 1993. In this regard, Ukrainian law is exclusively applicable.Under Article 41 (2) of the Private International Law Act, in the assessment of legal relationships relating to a movable property brought to Poland from Ukraine, one should also consider legal events taking place when the asset in question was still in Ukraine. However, the assessment of legal events having an impact on property law relationships taking place in Poland and relating to movable items brought back to Ukraine will be based on the Ukrainian law.

Enfeoffment to Use, Legalism, and Humanism in Gower's Mirour de l'Omme

Enfeoffment to Use, Legalism, and Humanism in Gower's <i>Mirour de l'Omme</i>

Bolstering creditor and shareholder protection under the South African and Zimbabwean amalgamation or merger regulatory regimes: Suggestions for company-law reform

This article critically assesses the efficacy of the South African and Zimbabwean merger regulatory regimes in providing suitable shareholder and creditor protection. The article seeks to balance competing goals. On the one hand, merger opportunities should be promoted by reducing regulatory barriers to merger regulation by, for instance, facilitating the implementation of mergers through a less complex procedure and with reduced court interference. On the other hand, the merger regimes ought to guarantee the appropriate and adequate protection of creditors and shareholders, including minority shareholders’ interests. The article focuses on the two comprehensive target shareholder protections — participatory and remedial rights — and two creditor remedies — the creditors’ notice and the solvency and liquidity test. The study establishes that South Africa offers better protection to creditors and shareholders than Zimbabwe. However, in some respects, both jurisdictions can seek lessons from other progressive jurisdictions, including the United States of America, with the state of Delaware as a particular example, and the United Kingdom.

The Impact of Digital Transformation on Applying Rights in Rem of Trademarks

The Impact of Digital Transformation on Applying Rights in Rem of Trademarks

Are secessionists making the right arguments for independence?

AbstractThere are roughly 70 secessionist movements around the world, and all of them advance arguments for why they deserve independence. These include restorative rights, remedial rights, primary rights, a history of conflict and functionality‐based arguments. However, no one has conducted a comprehensive analysis to see how these arguments (or grievances) match reality. That is, are secessionists making the right arguments given their context? To answer this question, we utilise a data set of potential secessionist grievances to determine what normative arguments each secessionist movement ought to make given their setting. We conduct a content analysis of the normative appeals/grievances that have actually been made by specific secessionist movements since 2000. We then compare the predicted grievances against the actual grievances and summarise the patterns. The results matched our predictions where restorative rights, remedial rights and functionality‐based arguments are concerned. Our analysis returned a positive and statistically significant relationship. However, we found no evidence that those making conflict‐related arguments were more likely to exist in conflict settings. Interestingly, the findings for primary rights were the opposite of our expectations; it is the secessionists with the most political voice, not the least, that are the keenest to stress primary rights.

The Greek Cadastral Law as a Cluster of Rules of Substantive and Procedural Law and its Incorporation into the European Framework

Well-organised property registers play a key role in further promoting cross-border transactions and ensuring their security, so that their proper function is not only a European but also an international requirement. The object of this article is to present the Greek cadastral legal order, in the light of the idea of European harmonisation. In general, cadastral law is made up of legal rules establishing the publicity of the rights in rem over real property, as well as the manner, procedure and beneficiaries involved in the correction of inaccurate cadastral entries. The Greek system, upon completion, will be in the form of an integrated cadastre, where technical and legal information will be kept in a single cadastral base of the institution. There is no doubt that the Greek cadastral system meets the European standards so that, in cooperation with the other countries, the effort of harmonisation and creation of a single property register could bear fruit.

Knowledge Among Class-D Workers Of Hospital In Protecting The Rights Of Mentally Ill Patients

Background&#x0D; Human right is an important perspective which deals in balancing the rights of human beings as distinct within the community.For patients with mental disorders, the rights are freedom and their remedial rights, right of protection against harm and constitutional rights. As per the BBC News report, the mental health institutions itself does not respect the rights of mentally ill patients. Sometimes the patients are found in dreadful conditions like being kept undressed or in dirty or old clothes. These are accounted under the violation of human rights of mentally ill patients.&#x0D; Methods&#x0D; A descriptive study comprised of 03 hospitals located in Sangli, Miraj, Kupwad Corporation area of Maharashtra, India. Non- probability convenient sampling technique was adopted to recruit total of 111 subjects which was determined by power analysis formula for sample estimation. The Class-D workers who have worked/working in psychiatric units and or hospitals were included in the study. The tool included the structured knowledge questionnaire regarding human rights of mentally ill.&#x0D; Results&#x0D; In the present study, it was found that total 82.88% Class-D workers had overall average level of knowledge. In the domain wise assessment of knowledge it was found that the mean percentage of knowledgewas less in area related to the meaning of human rights i.e; 32.33%.&#x0D; Conclusion&#x0D; Information booklet was developed based on the findings to enhance the knowledge of the Class-D workers. The booklet was distributed to the subjects for further reference.