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Безвъзмездните разпоредителни сделки с чужди права

Author(s): Ivan Ruschev / Language(s): Bulgarian Publication Year: 0

The purpose of this report is to show, frequently encountered in practice, hypotheses of legal transactions, defective due to non-ownership of the right by the grantor. It concerns hypotheses in which the regulation (or rather the interpretation of legal texts adopted in the case-law) sometimes leads to clearly unfair results. Views of the theory and the practice of the Supreme Court of Cassation are shared on examples that represent gratuitous dispositions with foreign (not owned by the grantor at the time of the disposition) rights, on which contradictory case-law has been formed over time.

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Историческо развитие на крайната нужда през Средните векове

Author(s): Teodor Peshterski / Language(s): Bulgarian Publication Year: 0

With the rediscovery of the Corpus iuris civilis by the Bolognese glossators in the early twelfth century, the process of the actual development of the concept of gross disparity, named by them as laesio enormis, began. From its limited field of application in the post-classical Roman law it transforms itself into a universal remedy for establishing the just price and restoring the equality in exchange. The glossators managed to develop a rule, which is enforced by means of the ius commune in the secular and ecclesiastical courts throughout Western Europe in the course of more than five centuries.

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Гражданскоправни аспекти на криптовалутите в Република България

Author(s): Yordanka Noneva-Zlatkova / Language(s): Bulgarian Publication Year: 0

The development of law is faced with many challenges, one of which is the creation and testing of new information and communication technologies. At the same time, the law must quickly react with a set of legitimate means of regulation in order to guarantee legal certainty in relations. Cryptocurrencies are a manifestation of rapidly developing technology that is entering civil circulation at an increasingly rapid pace. The paper aims to examine the concept of cryptocurrency, comparing it to the millennia-old fiat money. In addition, the research examines possible hypotheses of practical application.

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Понятие за съсобственост

Author(s): Ventsislav Stoyanov / Language(s): Bulgarian Publication Year: 0

The study focuses on a fundamental issue in property law – co-ownership. It is not intended to displace the scientific works on the subject that abound in our legal literature. The study is oriented towards a comprehensive analysis of the institution known in all legal systems. The issue is also of a considerable practical value, as the majority of civil panels in the district courts deal with issues of judicial partition [2]. Co-ownership is generally seen as a temporary phenomenon and the legislation creates a number of possibilities for its termination. The French Civil Code is particularly explicit in this respect, as it provides in Article 815 that no one may be obliged to remain in co-ownership. This optimistic notion does not happen so easily in reality. On the one hand, legislations create hypotheses of compulsory co-ownership, for example in condominiums, and partition proceedings are usually very lengthy. The essay does not pay attention to partition because many studies have been devoted to this issue. Rather, the presence of partition in the work is incidental. The clarification of the notion of co-ownership is central to the study. A number of legislative decisions in different countries are analyzed both in comparative and historical perspective. Particular attention is paid to the opinion on co-ownership of Acad. Lyuben Vassilev, which, although isolated, is of considerable interest. This is logical, because although the question of co-ownership is valid for many legal systems, it is the decisions of Bulgarian property law and our legal theory that are of significant importance. The methods of acquiring co-ownership are also examined, and here the focus is on the Bulgarian legal system. Necessary terminological remarks are also made to distinguish the concept of co-ownership from co-possession of property rights or other rights. Considerable case-law is also touched upon.

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Тенденции при разпореждането и управлението с държавна и общинска собственост

Author(s): Lyuba Panayotova-Chalakova / Language(s): Bulgarian Publication Year: 0

Actions of disposal and those of management of state and municipal property give a more complete picture of the division of property into public and private. It also outlines possible perspectives for future legislation taking into account past experience. A characteristic feature of public state or municipal property law is, above all, the disposal regime, which distinguishes it from private state or municipal property. The mode of management of public property is also important in comparison with private state and municipal property. In spite of the preserved principled positions in the regulation of disposal and management actions in Bulgarian legislation after the period of return to the division of ownership into public and private, some interesting trends can be observed. One of them is the increasingly obvious inclusion of public property in the economic turnover and, accordingly, ‘blurring the boundaries between public and private’ through amendments to the laws. These processes are based on economic, political and social reasons. Future legislation must follow the line of seeking a balance between public and private, between what should be preserved as public domain and the need for private ownership for the state and municipalities. This is also the recommendation to the legislator in this matter.

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Относно правното положение на трети лица, придобили вещни права в хипотеза на отменено конститутивно съдебно решение на праводателя им

Author(s): Dimo Hadzhiev / Language(s): Bulgarian Publication Year: 0

The subject of this report is the legal situation of third parties who have acquired real rights in the case of a reversed constitutional judgment of their grantor. The report focuses on the level on which the competition of rights between the petitioner in the proceedings for the annulment of a final constitutional judgment and the third party who acquired a real right from the defendant in the annulment proceedings could be resolved. The relevance of the report is dictated by the fact that there is no adequate means to guarantee security in the civil turnover in the considered hypothesis in the current real property law framework. The purpose of the report is to examine and comment on the case-law of the Supreme Court on the issue raised. The report deals with opinions and comments on controversial issues related to the subject of research, as set out in the legal doctrine, and comments on them and expresses a position. Minor interpretative changes have been made to the text of the judgments analyzed for the purposes of the report, without affecting the content of the statements made by the SCC Chambers in the cases under consideration.

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За уговарянето на вещни права върху недвижими имоти при договора в полза на трето лице

Author(s): Petar Topurov / Language(s): Bulgarian Publication Year: 0

The report will consider the issue of whether it is possible to negotiate real property rights by contract in favour of a third party, the effects of such a contract, and the need for legislative changes to guarantee legal certainty.

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Digital Distribution and the First Sale Doctrine

Author(s): Ergysa Ikonomi / Language(s): English Publication Year: 0

The first sale doctrine (FSD) originated as a rule to preclude the copyright owner’s continuous right of distribution. It was initially applied by the court and later introduced into law as a legal and fair balance between the copyright owner, who ensures the reward for a copy of the work, and the acquirer of the copy, who becomes the owner of that particular copy, having the right to dispose of it without the authorization of the copyright owner. The doctrine was clear and accepted as fair. The digital era brought a severe challenge to the doctrine. The copies of the works are tangible and intangible, they can be sold or communicated to the public easily from a place and at a time individually chosen by them, and the copies are qualitatively undeterrable. Although the legal efforts to update the laws, the role of the Courts in determining the proper conditions for the FSD application has been pivotal. The paper addresses the digital distribution of copyrighted copies of the works from the perspective of the U.S courts and CJEU, whose decisions have established the rules of a potential e-FSD.

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За систематизацията и системите на източниците на задължения

Author(s): Krassen Stoichev / Language(s): Bulgarian Publication Year: 0

Systematization of the sources of obligations is essential since it pivots the entire structure of civil law. As practice also indicates, systematization prescribes the structure of the Civil Code, or the general Civil Law; finally, it also consolidates the legal-facts group in Civil Law. From the historical and comparative perspective three systems have been devised for presenting the sources of obligations. The first one is the familiar quaternary classification, classification offered by Gaius and later elaborated on in Justinian’s codification. The latter provided a sound basis for Pothier and Savigny in their works. Likewise, this system was adopted by the French Civil Code of 1804. The next systematization described the contract as the principal source of obligations. The first variant sets contract against all other sources of obligation, making it clear that the domination of contract was meant to replace all the other sources of obligations since the latter were jammed together in a group of enforced by the law sources of obligations. Some authors interpreted it another way and spoke about contracts and non-contractual sources of obligations. One can trace back its ideas in the times of the Natural Law School, which later was joined by some German jurists during the second half of the XIX century. The original synthesis between it and Gaius’ systematization led to the formation of the triple classification we can see in the Italian Civil Code of 1942. In the Civil Code of the Netherlands in force the sources of obligation were defined by the law; hence their systematization was made pointless. The third well-known systematization of the sources of obligations placed them amid civil law legal facts no matter of their specificity. The Bulgarian Obligations and Contracts Law adopted the pragmatic approach shown in the simple outlining of the five basic sources of obligations where contract obligation serves as a model. Whenever necessary, this Law introduces in its general section specific rules referring to tort obligations as the result of deviation from contractual obligations. Elaborating the proper system of the sources of obligation is not an easy task. Instead of generalization, one should consider the fact that there are typical sources of obligations and sources which give rise to obligations existing only in the context of another civil relationships.

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Поглед върху историческото и сравнителноправно развитие на развалянето на договорите

Author(s): Hristina Tancheva / Language(s): Bulgarian Publication Year: 0

The right to rescind a contract has not always been available to the creditor in case of non-performance. Over the years, the rescission has established as a convenient means of protection, as its development went from recognizing the possibility of rescission only of certain contracts and for non-performance of certain obligations – in Roman law, through judicial rescission – established in the Middle Ages as a rule for all bilateral contracts to arrive at a prevailing unilateral rescission today not only in our country, but also in other reviewed countries. The rule, constructed on the basis of the relationship between the rights and obligations under a bilateral contract, is formed slowly and cautiously, because it is a kind of withdrawal from the hard-established and jealously guarded principle of pacta sunt servanda. The comparative legal review shows certain differences in the regulation comparable to the Anglo-Saxon system, but also within the framework of the continental legal system.

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Прекратяването на договора за отглеждане на дете в приемно семейство при прекратяване на настаняването на дете извън семейството

Author(s): Galina Dimitrova / Language(s): Bulgarian Publication Year: 0

The article analyzes the issues of termination of the contract for raising a child in a foster family upon termination of placement outside the family. The grounds for terminating the placement and the fate of the contract with the foster family were subsequently examined. It is indicated when the contract is terminated before the placement is terminated and when it is terminated at the same time. It was concluded that the contract with the foster family is terminated on the basis of the termination of the placement outside the family, if it was not terminated earlier.

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The Capacity to Inherit of the Adoptive Child Vs the Conceived Child in Albania

Author(s): Jonada Zyberaj / Language(s): English Publication Year: 0

In the light of the principle of equality of children, the law promotes the same rights between children, regardless of their status as born out of wedlock or as adopted ones. Even though the importance of this principle is not questioned, in some cases the inheritance rights and the ability to inherit is linked with the moment of conception, excluding so the possibility of their application in the cases of adoption. The Albanian Family Law, aiming at guaranteeing the best interest of the child, provides for a favorable treatment of the child in an adoption process, by giving him the right to inherit his adoptive parent even if the latter dies before the court’s decision, if the court will approve the adoption. The law does not provide the same right for the adoptive parent in vice versa. The adoptive parent can inherit his adoptive child only after the court has approved the adoption. Even though the Albanian legislation guarantees the equality between children and provides favorable provisions in order to fulfill the best interest of the child, some provisions of the inheritance law are based in the moment of conception which makes them explicitly applicable only in cases of the biological child. The capacity to inherit belongs also to the child who has been conceived before the death of the deceased, but who is born alive, and also to the non-indirect children of a person, who was alive at the time of the death of the testator, even if those children were not yet conceived. Both of these provisions linked the moment of the acquisition of the quality as an heir, to the moment of the child’s conception. This has drowned the attention of the doctrine to the discussion of whether the term “non-direct children” will refer only to biological children or even to adopted ones. The paper aims at analyzing the ability to inherit of the adopted child by interpreting the way the above dispositions should be implemented in accordance to the equality principle and by comparing them to other legal systems that have influenced the Albanian legislation.

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Improving Family Mediation Training in England and Wales

Author(s): Amel Ketani / Language(s): English Publication Year: 0

The purpose of this paper is to consider how to make improvements to the current family mediation training in England and Wales in the way in which it assesses trainees. The current training is eight days and trainees have three years from the date they start their family mediation training to submit a portfolio. Passing the portfolio will lead to an accreditation awarded by the Family Mediation Council (FMC). According to paragraph 22 of the Practice Direction on MIAMs, this full accreditation will enable the family mediator to practise all aspects of family mediation including MIAMs and sign court forms. The portfolio requirement and the supervision of this portfolio will be considered in this paper. The views of family mediators on the portfolio requirement will be considered as well. A further purpose of this paper is to demonstrate that there is scope to improve the way trainees are assessed in the family mediation training. Proposals and recommendations are put forward in this paper on the current portfolio requirement.

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Нов отпуск за бащите в Кодекса на труда

Author(s): Yaroslava Genova / Language(s): Bulgarian Publication Year: 0

With the last amendments to the Labour Code, made only this summer, a new leave has been introduced, as a right for fathers of children up to 8 years of age. It is a paid leave. This comes from the obligation of transposing Directive 2019/1158 that Bulgaria has as an EU Member State. The article deals with the conditions for using the leave but also raises the question whether that kind of leave is the best way to cope with the requirements of the Directive.

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Недействителност на споразуменията при упражняване на колективни трудови права

Author(s): Maria Dimitrova Chochova / Language(s): Bulgarian Publication Year: 0

The Labour Code regulates cases where, in order to establish certain rights and obligations, or to fulfill a statutory procedure, it is necessary to conclude an agreement between statutory parties. These agreements are regulated by labour legislation, the content of which should correspond to the law, not circumvent it and not contradict good morals. These agreements do not in all cases have the characteristics of contracts. The paper studies the agreements under Art. 3, Para 4, Art. 7c, Para 4, Art. 130, Para 5, Art. 51b, Para 2 and Para 4 of the Labour Code, concluded in connection with the exercise of collective labour rights.

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Гаранции за защита на работника и служителя при прекратяване на трудовото правоотношение на плоскостта на европейското и националното законодателство

Author(s): Vanya Miteva / Language(s): Bulgarian Publication Year: 0

The termination of the employment relationship, along with its origination, is one of the most important and key issues of Labour law. It may have significant consequences for the employee, initially recognized as the weaker party in the employment relationship. Their release from work can reflect both on their financial and social status. This necessitates the introduction of mandatory legal restrictions to ensure a balance between the interests of the employer and the employee. Employees’ protection upon employment termination, although often associated with the legislative mechanisms for implementing the preliminary protection in case of dismissal under Art. 333 of the Labour Code (LC) and the subsequent methods for contesting the legality of dismissal under Art. 344 of the LC, also includes a number of other protective mechanisms. These can be found both in European Union law and in national employment legislation regulations related to: the right to reasonable notice period, the right not to be dismissed from work without a valid reason, the right to non-discrimination upon dismissal, the right to advance protection in case of dismissal, the right to compensation upon termination of the employment relationship, the right to appeal to an independent authority, the right to request reinstatement.

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Изисквания за редовност на исковата молба в производството по Закона за противодействие на корупцията и отнемане на незаконно придобитото имущество

Author(s): Milen Marinov / Language(s): Bulgarian Publication Year: 0

In civil proceedings the Plaintiff is bound by the norm of Art. 127, Para 1 of the Civil Procedure Code which regulates the requirements that each claim must meet in order to be considered by the court. Among these requirements /most of which can also be defined as ‘requisites’/ through the prism of the proceedings for confiscation of illegally acquired property, the most prominent one is that of item 4 of the cited provision, according to which the claim should contain precise and clear statement of the circumstances on which the claim is based. At the same time, the special law, namely the Law on Combating Corruption and Confiscation of Illegally Acquired Property, sets out specific characteristics for this type of claim proceedings which, in practice, expands the catalogue of requirements for the regularity of the claim. The purpose of this report is to analyze and clarify in full the statutory requirements that a claim under the LCCCIAP should meet in view of the general and special legal regulations.

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Критерии за преценка на стандарта на доказване по граждански дела

Author(s): Anastas Punev / Language(s): Bulgarian Publication Year: 0

The article analyses the criteria which the court must consider when interpreting whether a certain fact has been proven. The general rule that the party bearing the burden of proof shall provide ‘complete’ proof in order to substantiate its claim is too abstract to be unequivocally applied in quite different cases, so an attempt is made to single out more precise rules to fulfill the principle of complete proof in view of the peculiarities of the disputed right. For this purpose, the role of related civil procedure concepts such as burden of proof and means of proof is examined, as well as the impact of more fundamental provisions of law of evidence and the basic tenets of civil procedure. The article ultimately arrives at general conclusions which a court must consider in the reasoning of its decisions.

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Относно някои проблеми на отговорността за вреди вследствие на обезпечение на иск

Author(s): Andrean Slavchev / Language(s): Bulgarian Publication Year: 0

This research deals with some issues of the liability for damages caused by unjustified security for a claim subject matter under discussions in doctrine and jurisprudence. Many basic courses in civil procedure law examine that liability. There is also an independent complete study of the institution of security for claims. The main issues there are related to the procedure of the security for a claim and the general requirements under Art. 403 of the Code of Civil Procedure (previous Art. 322 of CCP /repealed/ and Art. 378 of the CCP /repealed/) as well. The others deal with the nature and scope of the liability, the contributory negligence by the defendant, failure to mitigate the damages, etc. The application of the general rules of non-contractual liability in these cases, especially the application of Art. 51 of the Obligations and Contracts Act (OCA), is still controversial. The article discusses precisely the controversial opinions on that issue, as well as the application of Art. 59, Para 1 OCA by analogy to the liability for damages under the Art. 403 CCP.

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Извънсъдебното решаване на спорове като насърчение на бизнеса в Република Армения

Author(s): Maria Hovsepyan / Language(s): Bulgarian Publication Year: 0

Out-of-court dispute resolution methods are popular in the Republic of Armenia because they represent an additional guarantee for business interests, reduce the workload of the courts and increase trust in the government. Business representatives are assured that out-of-court dispute resolution will resolve conflicts quickly and fairly.

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