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Квазі-інститут недоговірних зобов’язань з односторонніх правомірних дій

Author(s): V. M. Ignatenko / Language(s): Ukrainian Issue: 14/2018

The location and maintenance of cvazi-іnstitute of non contractual obligations are determined from one-sided legitimate actions. An obligation right is examined as a subindustry of civil law ofUkraine. The last consists of two institutes of contractual and non contractual obligations. Non contractual are all obligations that arise out of any other possible legal proofs after the exception of agreement. On the sign of legitimacy of founding of origin non contractual obligations are divided into those that arise out of wrong acts (restoration) and legitimate actions. In turn one-sided legitimate actions come forward as legal transactions, legal acts. The feature of non contractual obligations from one-sided legitimate actions is determination of their maintenance or by a law or law and will of one side obligation. Therefore as expedient the selection of intermediate structure comes forward between an institute and subinstitute – cvazi-іnstitute, that in turn includes for itself the subinstitutes of separate types of not contractual obligations, as obligations from the public promise of reward, obligation from conducting business in interests of other person without her commission.

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Цивільно-правова характеристика договору емісії електронних грошей

Author(s): Arsen Isaiev / Language(s): Ukrainian Issue: 14/2018

The article is devoted to the analysis of the civil-law nature of the contract of electronic money issue. A civil-law description of the contract of electronic money issue on the main criteria for the classification of contracts in civil law. The author's concept of the contract of electronic money issue is proposed, which reflects its essential features. Some shortcomings of the current legislation have been identified in this area, and ways of improving it have been proposed. The author points out, that legal research on electronic money is more about definition of their economic and legal nature. In the same time, the problems of issuing of electronic money and contractual forms, that mediate such emissions, undeservedly left without attention. The issue of electronic money always precedes their further distribution and circulation, that is why civil-legal analysis of the contract of electronic money issue is needed.The article justifies conclusion, that the contract of electronic money issue is an agreement aimed at providing banking services, mutual, repayable and real. In most cases, such a contract will be public and may be described as an interconnection agreement. In the article author formulates the definition of the contract of electronic money issue.The author states, that the civil-law regulation of electronic money circulation today is at the stage of its formation. Detailed study of the obligations arising from the contract of electronic money issue is required. In general, the dynamics of the development of relations associated with the use of electronic money, mediates global changes in legislation, which provides the regulation of such relationships. Thereby, scientific research in this area will remain relevant for a long time.

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Майнові права кредиторів юридичної особи, яка перебуває в процесі припинення

Author(s): O. Surzhenko / Language(s): Ukrainian Issue: 14/2018

The article reveals the problem of protection of the rights of creditors upon termination of a legal entity through its reorganization. Since the contractual relationship is an obligation, the property right of the creditor is the right to demand fro

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Законодавче забезпечення відновлення кредитування

Author(s): V. P. Yanyshen / Language(s): Ukrainian Issue: 14/2018

The article is dedicated to the research of legal support of the resumption of lending. Based on a conducted systematic analysis of current legislation and special sources, it is argued that the presence of a significant amount in banks is a significant obstacle to the development and reduction of cost of lending in Ukraine are the presence of a significant amount of non-performing loans from banks that are caused by low solvency of the population, a high level of real (effective) interest rates on loans, a high credit risk, numerous conflicts of legislation, certain provisions of the tax legislation. The article emphasizes that the existence of problem loans requires banks to create significant reserves for their coverage, limiting the amount of funds directed to lending, and significantly increases the bank's credit risk (CR).The article contains such ways of settling non-performing loans as restructuring of problem debts and/or partial forgiveness (write-off) of the debt, sale of debt with a discount (below their nominal value), foreclosure collateral (including mortgage), appeal to court with claims for debt collection under loan agreements, initiation of bankruptcy of the debtor, etc.The author considers the main directions of activity on the resumption of lending and acts of active and promising legislation aimed at settlement of debts.Author has been analyzed such acts of Parliament as the law on financial restructuring, which is conducted without court trial through negotiations between the debtor and creditors on the restructuring of monetary obligations to them, the law on the creation and maintenance of the Credit Register, which will help to avoid issuing loans to people with a negative credit history in the future, the law on the resumption of lending which aimed at protecting the interests of the banking sector (creditors) from unconscientious borrowers, as a result of what most of the common loopholes for unscrupulous borrowers can be closedAlso considered bills on settling arreas and debt management, the adoption of which will significantly reduce the level of the problem debt.

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Забезпечення найкращих інтересів дитини при розгляді судом справ про усиновлення

Author(s): Ya. S. Tubolceva / Language(s): Ukrainian Issue: 14/2018

The article is devoted to the study of the concept "best interests of the child" and their providing in the court proceedings on adoption. Analyzes the international and national documents in the field of adoption in terms of the normative consolidation this concept. It is noted that the highest priority is given to the best interests of the child, established in Art. 3 of the Convention on the Rights of the Child. This is an included principle underlying the implementation of all rights enshrined in the Convention. Thus, in the recommendations of the Committee of Ministers of the Council of Europe, guaranteeing the best interests of the child is considered by the court as a guideline for the all actions concerning children and adoption also.Methodological basis for this study is a set of scientific methods, among which the main are the methods of system and comparative legal analysis, logical comparison, and matching.Due to the absence of a complete content of "best interests of the child" in the national legislation, examples of the definition this principle by the domestic scientists are given. The author makes a scientific supposition about the legal nature of "best interests of the child" in the civil process. The national judicial practice of application and interpretation of the principle of "best interests of the child" in the case of adoption cases is analyzed.The result of the study is the discovery of disagreements in the terminology of the national legal framework, and therefore the author concludes that there is a need to make appropriate modifications in order to formulate a uniform judicial practice and further scientific research of the "best interests of the child" at the review of cases on adoption by the court.

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Odwołanie testamentu w polskim prawie spadkowym – przegląd orzecznictwa i poglądów doktryny

Author(s): Michał Krawczyk / Language(s): Polish Issue: 3/2018

Revocability is one of the basic features of testaments. It is also an important manifestation of the freedom of testation. The testator or testatrix may, at any time, until his or her death, revoke the testament in whole or in part. According to the provisions of Article 946 of the Civil Code, revocation of a testament occurs either by the testator drawing up a new testament, destroying the testament or depriving it of the features that determine its validity with the intention of revoking it, or lastly, by altering the testament in a manner indicating his intention to revoke the provisions contained therein.

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Refleksje o wybranych kompetencjach organu ochrony danych osobowych, przed i po 25 maja 2018 r.

Author(s): Sławomir Czarnow / Language(s): Polish Issue: 3/2018

The article addresses selected key issues concerning the powers of the authority for personal data protection (supervisory authority) in light of amendments introduced by way of the General Data Protection Regulation (GDPR). The analysis conducted concentrates mainly on the rules for handling complaints and administrative matters by this authority, with particular attention paid to issues connected with the imposition of fines and the conditioning of complaint consideration on the payment of stamp duty.

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ODRŽAJ KAO NAČIN STICANJA PRAVA SVOJINE NA NEPOKRETNOSTI

Author(s): Katarina Dolović Bojić / Language(s): Serbian Issue: 1/2019

The aim of the paper is to determine the exact field of application of the institute of acquisitive prescription, that is, to find the answer in which situations in practice it is possible to fulfill all the conditions required by the legislator and acquire the ownership by usucapio. The main question raised in the paper is whether there is an actual need for the existence of acquisitive prescription in contemporary Serbian law, bearing in mind that the data in the real estate cadastre has been duly kept. The institute of usucapio has also been analyzed from a perspective of application of the reliance principle on land registry. Certainly one of the most problematic question is the justification (and also the legal basis) of this institute having in mind the idea of the inviolability of ownership.

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ROZWÓJ NORM PRAWNYCH REGULUJĄCYCH WYKONYWANIE POLOWANIA NA ZIEMIACH POLSKICH

Author(s): Roman Stec / Language(s): Polish Issue: 2/2018

An article under the title “The Development Of Legal Standards Governing Hunting in Po-land," shows the evolution of the rules of law concerning hunting in Poland. In the paper there is a discussion on hunting as the activities in the natural environment. In addition, the author demonstrates whether legislation on hunting is a protective and is essential to the functioning of the State and society.

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ODPOWIEDZIALNOŚĆ ADWOKATA I RADCY PRAWNEGO ZA NARUSZENIE ZASAD ETYKI ZAWODOWEJ

Author(s): Anna Chochowska / Language(s): Polish Issue: 2/2018

Practicing the profession of a lawyer involves the need to comply not only with legal norms, but also with ethical standards. These norms included in the framework of ethical codes set the desired pattern of behavior of a legal practitioner. In the case of different types of dilemmas, they indicate the right way to proceed. Attorneys are required, which is understandable in order to protect the broadly understood public interest, to comply with the highest ethical and moral standards. This article presents the essence and importance of the institution of discipli-nary responsibility in ensuring the proper performance of the profession. In addition, it indi-cates disciplinary offenses that may result in the initiation of disciplinary proceedings against a lawyer and types of disciplinary penalties.

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Instanțele de judecată au obligația, iar nu facultatea de a aplica deciziile Curții Constituționale astfel cum acestea au fost pronunțate

Author(s): Mircea N. Costin,Călin M. Costin / Language(s): Romanian Issue: 04/2019

The courts can not censure the decisions of the Constitutional Court in terms of the statements which they contain with regard to the unconstitutionality of a legal norm and the impact they have on the way of settling the ongoing disputes, respectively not finalized through the pronunciation of some irrevocable judgments, following the cessation of the application of that norm by declaring it unconstitutional. They have the obligation to apply the decisions of the Constitutional Court to their letter and spirit and they can not add by way of interpretation elements that are capable of restricting them or, respectively, to extend their scope. By the Decision of the Constitutional Court No 369/2017 it has been stated that all the judgments pronounced after the publication of the decision in the Official Gazette of Romania are subject to appeal, in the cash assessable applications, except for those exempted according to the criterion of matter, expressly provided in the theses covered by Article XVIII (2) of the Law No 2/2013. In the application of this decision, the High Court of Cassation and Justice – the Panel for the settlement of some matters of law, by the Decision No 52/2018 has stated that the effects of the decision of unconstitutionality will concern all judgments pronounced after the date of its publication, but in trials commenced after 20 July 2017. By this statement, the decision of the Constitutional Court No 369/2017 has been amended without justification under the pretext of the settlement of the matter of law concerning the application of that decision over time. By the Decision of the Constitutional Court No 454/2018 it was established that the High Court of Cassation and Justice does not have the power to rule on the effects of the decision of the Constitutional Court or to give binding rulings which are contrary to the decisions of the Constitutional Court, but has the obligation to apply that decision in such a way suitable to its considerations to the case subjected to judgment. The Decision No 454/2018 has an interpretative character and therefore, by way of derogation from the principle according to which the decisions of the Constitutional Court apply only for the future, it has a retroactive effect, in the sense that it is put into application from the date when the Decision of Constitutional Court No 369/2017 began to take effect.

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Abrogarea procedurii de filtru în recursul civil

Author(s): Claudia Roșu / Language(s): Romanian Issue: 04/2019

The study analyzes the opinion on the repeal of the filter procedure when the review in the civil trial is within the competence of the High Court of Cassation and Justice. The author presents the analysis of the manner the filter procedure was regulated by the Law No 134/2010, the Civil Procedure Code and the arguments for which it considers that the repeal of this procedure is not justified. The result of the study is reflected in the opinion according to which the filtering procedure had to be maintained, for the settlement of the reviews in the civil trial, by the supreme court. The filter procedure was first introduced in the civil processual legislation by the Government Emergency Ordinance No 58/2003. Those provisions introduced a new procedure of settlement of the review, irrespective of the court which settled the review, that of the admissibility in principle of the review, prior to the actual settlement of the application for review, which carried out the preliminary examination of the application for review. By the Law No 134/2010 the filter procedure has been regulated only in case the review was settled by the High Court of Cassation and Justice. By the Law No 310/2018, amending and supplementing the Civil Procedure Code, the filtering procedure has been repealed although, in the initial form, it was proposed to put the text of Article 493 of the Civil Procedure Code in agreement with the provisions of the Decision of the Constitutional Court No 839/2015, which has declared unconstitutional the phrase „or that the review is manifestly unfounded”. In this respect, the text of Article 493 (5) of the Civil Procedure Code should have been as follows: „In case the panel unanimously agrees that the review does not meet the formal requirements, that the grounds invoked and their development do not fall within those provided by Article 488, it shall cancel the review by a reasoned decision, pronounced without the summoning of the parties, which is not subject to any means of appeal. The decision shall be communicated to the parties”. Maintaining the filter procedure, in our opinion, contributes to decongesting of the supreme court to settle the reviews that do not meet the conditions for exercising this extraordinary means of appeal.

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Calificarea juridică și regimul juridic al cheltuielilor de judecată. O abordare riguroasă sau relaxată?

Author(s): Cristian Tănasă / Language(s): Romanian Issue: 04/2019

Over time, the claim for awarding legal costs in the civil trial has not been paid due attention. Starting with 1959, following a decision of the Plenum of the Supreme Tribunal, in the practice of the courts, as well as in the specialized works has been taken over automatically, until it has been imprinted in the collective mind, the idea that the court costs can be claimed at any time until the debates are closed on the merits, and the court may even draw attention to this issue, or they may be claimed separately, even if they were initially requested within the dispute.The present study aims to analyze the legal status of awarding the claim for costs, while giving at the same time the correct legal classification of this claim by reference to the texts of the Civil Procedure Code. Thus, we will show that this claim brought to the justice can not be subject to the discretionary will of the parties, but must be circumscribed by the procedural rigors with regard to filing a claim before the court. In the first instance, the party must accordingly request court costs, respectively by way of introductory application, an objection, an intervention, etc. If it did not do it, as a rule, it will not be able to claim them within that litigation. If it did it, but then waives their request in the initial litigation, wishing to claim them separately, it will be subject to the consent of the opponent. In the redress or withdrawal means of appeal, claiming the court costs is conditionned twice, both in the compliance claim before the court of first instance and in the compliance claim before each court that has examined the case (by way of appeal, objection, etc.).The practical implications of the study are some of the most spectacular, since the party that does not comply with the procedural rigors of the claim for court costs will either be in a position to promote separate action for their recovery or in the event of a final impossibility to recover, in whole or in part, the advanced court costs.

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A NEW PERSPECTIVE ON THE BASICS OF CIVIL TORT LIABILITY IN THE CURRENT CIVIL CODE

Author(s): Lacrima Rodica Boilă / Language(s): English Issue: 2/2018

The institution of Tort Criminal Responsibility faced this millennial beginning with a real "crisis" by affirming reformist ideas placed between tradition and modernity, present and future, subjective and objective. The increase and diversification of the damage, on the one hand, but also the real difficulties in identifying the responsible person and proving his culpability, on the other hand, call into question the need to harmonize the legal norm with the realities of social life, providing the legal framework for reparation of all injustice caused. In the evolution of this legal institution three phases have emerged: sanctioning, based on fault, aimed at punishing the guilty of producing damage, reparation, based on warranty, risk and equity, aiming mainly to ensure the legal framework to cover the indemnity independent of the fault to the responsible person for the restoration of the destroyed and preventive social balance, consisting in anticipating and avoiding serious, immeasurable, environmentally damaging, human existence, not yet produced but possible. Our study aims at presenting the main issues regarding the foundation of tort law in the current Civil Code, taking into account the realities of contemporary society, to highlight the innovative, progressive aspects, capable of providing more effective protection to the victims of the illicit deeds.

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CONSIDERATIONS ON COMPENSATORY PROVISION

Author(s): Roxana Maria Roba / Language(s): English Issue: 2/2018

Regulated for the first time by the Civil Code from 2009, compensatory benefit seeks to compensate for asignificant imbalance that the divorce produces it in terms of the innocent husband's living conditions. The present study aims to analyze the necessary conditions to obtain a compensatory benefit according to the current legislation, to make a comparison with other institutions but also with the regulation from other legislation. The study uses the logical and comparative method, analyzes the legal provisions currently in force, as well as the point of view of the doctrine and the solutions derived from the judicial practice. The conclusions are in the direction of expressing concrete proposals to amend the current regulations.

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TORT LIABILITY. DAMAGES AND PENALITY CLAUSE

Author(s): Raluca Antoanetta Tomescu / Language(s): English Issue: 2/2018

Tort liability has always been a constant manifestation of social life in the community, having as its main effect the birth of a new legal obligational relationship established between the author of the deed which caused the prejudice and the injured person. Apodictically, legal liability will result in an attempt to repair the damage created mainly in kind, and when it is no longer possible to repair the damage, it will be in the form of damages established legally or judicially, or in the form of a penality claim in the case of conventional damage. From this perspective, we considered it appropriate to emphasize the effects on the penality clause of the hypothesis of intervention on the contract with another sanction of law, applicable in the case of culpable non-fulfilment of the contractual obligations, namely cessation or termination. The current Civil Code determines that, upon termination of the contract, the parties will be released from any obligation. Therefore, by termination of the contract, as a result of the declaration of termination, respectively of the cessation, the obligations stipulated in the penality clause are abolished, because the source itself was abolished, as we can no longer speak of a contractual obligational liability. Of course, in this hypothesis, the creditor will have at hand to claim non-contractual damages, where the person who considers himself prejudiced has to prove the damage and its source.

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Protection of land ownership of foreigners in Ukraine

Author(s): Dmytro Fedchyshyn,Iryna Ignatenko / Language(s): English Issue: Special/2018

The restrictions and peculiarities of the realization of the right of ownership of land by foreign citizens in Ukraine are considered. The emphasis is placed on the functioning of the principle of proportionality, the provision and criteria of predictability by the law and compliance in relation to the restriction of the rights of foreigners inacquiring agricultural land. The peculiarities of acquisition of the right of ownership on land plots and rights to use land plots in Ukraine by foreign citizens, foreign legal entities and foreign states are revealed. The authors formulate the purpose of legal regulation of restrictions on the right of ownership of foreigners to land. The primary focus of the paperis efficiency analysis of the legislative prohibition on acquiring property rights on agricultural lands (moratorium) by foreigners in Ukraine. The need to abolish this moratorium on acquiring agricultural land in Ukraine for citizens of foreign countries is justified.

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Závazná stanoviska a jejich přezkum po nejnovějších změnách stavebního zákona

Author(s): Alena Kliková,Petr Průcha / Language(s): Czech Issue: 1/2018

The contribution discusses the issue of so-called binding opinions of affected authorities of the state administration, with a particular focus on changes to their procedural regime, which has been brought for the area of their most frequent use by the amendment to the building act, with effect from January1, 2018. Changes relate in particular to the mode of their examination in appeal proceedings and in the so-called review procedure. The contribution of these newly introduced differences of the mode of binding of the opinions in construction law from their general adjustment in the administrative order not only points, but at the same time, from the perspective of its authors, also comments the suitability of the chosen solutions.

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Модель інформаційно-комунікативного впливу суб’єктів забезпечення національної безпеки на джерело загроз

Author(s): Oleksandr Komisarov,Leontii Chystokletov,Valerii Shyshko,Oleksandra Khytra,Kateryna Kostovska / Language(s): Ukrainian Issue: 01/2019

The purpose of the article is to study and develop the main approaches to forming the model of informational and communicative influence of the subjects of ensuring national security in modern states on the source of threats (in response to crisis and emergency situations). On the basis of analysis of literary sources it was determined that the characteristics of the informational and communicative model as the influence of the subjects of ensuring national security on the source of threats presupposes defining its specific features, namely: 1) the existence of the common communicative space; 2) the activity of participants of communication process as subjects of mutual information process, sending information, one participant of communication involves the activity of another, who should also be guided by the motives, goals, intentions of his partner and analyze them appropriately; 3) the activity of the subjects of communication involves an informal “movement of information”, and an active exchange of it; 4) in the process of communication there can be mutual understanding (misunderstanding), which is achieved by the presence of feedback, as well as by the importance of information, provided that the information is not simply received, but also comprehended; 5) the nature of the exchange of information is determined by the possibility of the mutual influence of partners through the system of signs; 6) the effectiveness of communication is measured by the im-portance of the mutual influence of partners; 7) communicative influence is possible only if the person , sending information (communicator) and the person receiving it (the recipient) have a common or similar system of codification and decoding; 8) communication participants should identically understand the situation of dialogue (communication, negotiations; 9) communicative barriers may occur during the information exchange.It was established that informational and communicative influence of the subjects of ensuring national security on the source of threats should be understood as the influence of manipulative nature, not only during communication, but even at distance (overalls, special means, gestures, facial expressions, poses, etc.), due to which it is possible to predict the actions of the offender, as well as further changes in his possible behavioral manifestations in order to prevent and stop illegal actions, where it is obligatory to take into account the qualities which can acquire positive or negative manifestations.

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Структура системы субъектов коррупционных преступлений по законодательству Украины

Author(s): Viacheslav Hladky / Language(s): Russian Issue: 04/2019

As it is known, the phenomenon of corruption, is characteristic of virtually all spheres of human activity. Therefore, it would be logical to assume that anti-corruption legislation will accordingly prohibit corruption acts for all entities that are capable to objectify the fact of the dominance of corruption in objective reality. This question is extremely relevant, taking into account the following fact: if there are groups of subjects that by their actions (or inaction) cause corruption, but they are not considered by the legislator as subjects of corruption crimes, accordingly, one can speak neither about the proper effectiveness of anti-corruption legislation, nor about the proper quality of anti-corruption activities. At the same time, analyzing the laws of various states, we can conclude that there is still no unified list of subjects of corruption crimes in the world, which, on the one hand, is associated with a different approach to understanding the phenomenon of corruption, and, on the other hand, makes it impossible to formulate a corresponding unified definition.In the article the author attempts to systematize an exhaustive list of subjects of corruption crimes under the current legislation of Ukraine. The corresponding systematization of the subjects of corruption crimes is preceded by an outline of the general idea of the subject of corruption crime in Ukraine, within which, the author identifies the main characteristics of these subjects. At the same time, based on the division of crime subjects in the theory of the criminal law into general and special ones, the “Generalized interpretation of the structure of subjects of corruption crimes under the legislation of Ukraine” is formulated for the first time by dividing possible participants of corruption relations, respectively, into groups of general and special subjects of these crimes. The group of general subjects of corruption offense covers all individuals, capable of being considered subjects of a crime in principle. The group of special subjects of corruption offense is a group of people, which includes the following types of subjects: a public official; a person, equivalent to a public official; top managers of legal entities of private law and individuals, providing services; candidates for public elective posts; separate categories of individuals, performing a special role in the life of society and state.

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