scholarly journals PRE-CONTRACTUAL RELATIONS IN INTERNATIONAL COMMERCIAL TURNOVER: SPECIFICITY AND TENDENCIES OF LEGAL REGULATION

2017 ◽  
Vol 3 (3) ◽  
pp. 69-76
Author(s):  
Ольга Муратова ◽  
Olga Muratova
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Late Nineteenth Century ◽  
International Institute ◽  
Private Law ◽  
Private International Law ◽  
Foreign National ◽  
Contractual Relations ◽  
The Law ◽  
Autonomy Of Will

The article is devoted to analysis of specifics and trends of legal regulation of pre-contractual relations in international commercial turnover. The emergence of disputes arising from pre-contractual relations, the recognition of the doctrine of culpa in contrahendo, which appeared in the late nineteenth century and helped to establish the Institute that meets the needs of the international commercial turnover in the XXI century. The determining factor in the formation of the new Institute of pre-contractual relations of the Russian civil law are the successes of the foreign national codifications of private law and the unification of international private law in the European Union in the framework of non-governmental organizations: International Institute for the Unification of Private Law (UNIDROIT), the Hague conference on private international law, etc. These achievements prefaced the inclusion in the civil code provisions on pre-contractual relations by putting the question of formal recognition of their existence as an independent Institute of the civil law on the legal consequences occurring as the result of unfair behavior at the pre-contractual stage. The author also draws attention to the complexity of the recognition of those or other actions of potential contractors of the existence of pre-contractual relations, which raises the question of whether their formalization through written fixation. In addition, the author considers the problem of implementation in the Russian legislation the principle of autonomy of will of parties to select the law applicable to pre-contractual relations. At the end the author comes to a conclusion that the most suited to modern commercial reality is an approach, according to which the principle of autonomy of will of the parties is a fundamental criterion for determining the law applicable to pre-contractual relations. The choice of such rights must be granted to the parties pre-contractual relations, as the conclusion of the main contract or after its conclusion (for example, if you have any pre-contractual dispute).

scholarly journals Contract for the international sale of goods: Principle of autonomy of the will of parties within documents of the Hague Conference on Private International Law

2020 ◽  
Vol 11 (4) ◽  
pp. 972-992
Author(s):  
Tatiana V. Novikova ◽  
Keyword(s):  
International Law ◽  
Legal Regulation ◽  
Private International Law ◽  
External Trade ◽  
Wide Range ◽  
The Hague ◽  
The Law ◽  
International Sale Of Goods ◽  
Sensitive Issues ◽  
Autonomy Of Will

The article is devoted to the analysis of legal regulation dealing with choice-of-law agreements by parties to international sale of goods contracts, namely in two documents of the Hague Conference on Private International Law: the Convention of 1955 on the Law Applicable to International Sales of Goods (in force) and the Convention of 1986 on the Law Applicable to Contracts for the International Sale of Goods (not yet in force). The Convention of 1955 sets a strict standard of autonomy of will (choice of a country’s domestic law; based only on the terms of the contract). Having a small number of participants and characterized by inconsistent law enforcement practice, this convention, nevertheless, is a valid legal instrument which Russian actors in the field of external trade should take into account when cooperating with nationals of member states. The Convention of 1986 establishes a substantively more liberal autonomy of will standard (change of the applicable law; demonstrated by the terms of the contract and the conduct of the parties in their entirety). However, many participants in the drafting procedure led to a wide range of views in regard to parties’ autonomy (including diametrically opposite ones). This resulted in a compromise nature of the solutions (and even the drafters’ direct refusal to address parties’ choice sensitive issues: choice of lex mercatoria, depecage) and, likely, an insufficient adoption for the Convention to enter into force. The Conventions’ basic principles (1955 — irrespective of having a few number of participants; 1986 — irrespective of not entering into force) have the potential for practical application in international commercial arbitration. In the case of parties’ autonomy, such an application would be limited to its recognition as far as the standard of the first is strict and somewhat outdated, whereas the standard of the second has been accepted in the framework of discord between states and avoids addressing sensitive issues in its implementation.

scholarly journals SECURITY PROPERTY OR THE INSTITUTE OF PLEDGE ACQUISITION ACCORDING TO THE CIVIL LAW OF ESTONIA

2015 ◽  
Vol 1 (4) ◽  
pp. 0-0
Author(s):  
Сергей Синицын ◽  
Sergey Sinitsyn
Keyword(s):  
Civil Law ◽  
Legal Framework ◽  
Legal Regulation ◽  
Private Law ◽  
Soviet Space ◽  
The Law ◽  
Security Property ◽  
Insight Into ◽  
Post Soviet Space

Legal regulation of proprietary interest in Estonia is associated with adoption of the Law “On the Proprietary Interest” in 1993, which has established the legal framework of the systemic proprietary interest regulation in the Estonian civil law. It must be noted that this law is distinguished by its substantive elaboration of general provisions on proprietary interest and individual elements of the system of proprietary rights (ownership, limited proprietary rights, possession), is prepared on the basis of consistent terminology and with the use of a ramified framework of categories and concepts of civil law. Insight into contents of the Law “On the Proprietary Interest” leaves no doubt as to its long-term elaboration and discussions, with involvement of the legal community and foreign experts, which, it is logical to assume, should have preceded its adoption. However, the reality is that the adoption of the Estonian law “On Proprietary Interest” was a rapid revolutionary step of the national legislators in the post-Soviet space, in the conditions of the crashed system of the socialist civil law and its guiding principles, which, in principle, had not been aware of any regulation of the system of proprietary rights and its individual elements. It is, certainly, possible to assume that the Estonian legislation has borrowed the provisions and institutions which had been regulated by the 1940 draft Civil Code of Estonia, which had been drawn up on the basis of the 1865 Code of Civil Legislations of Baltic (Ostsee) Provinces. However, it is impossible not to see as well that the Estonian law “On Proprietary Interest” has also apprehended the modern traditions of the continental European private law in regulation of certain institutions of proprietary interest, which evidences another manifestation of trends of harmonization and integration of civil law in Europe.

scholarly journals KAJIAN KRITIS TERHADAP HUKUM PERDATA (KUHPERDATA) DALAM ASPEK FILOSOFIS

2019 ◽  
Vol 4 (1) ◽  
pp. 20-31
Author(s):  
Anwar Hidayat
Keyword(s):  
Civil Law ◽  
Critical Study ◽  
Private Law ◽  
Inheritance Law ◽  
Social Community ◽  
Current Classification ◽  
Race Ethnicity ◽  
The Law ◽  
Important System

Abstrak Hukum merupakan suatu sistem terpenting di dalam masyarakat untuk mengatur kehidupan yang berkaitan dengan sebuat tatanan yang selalu bergerak baik secara evolutif maupun revolusioner. Tatanan diatur dalam hukum itu sendiri meliputi tatanan transendetal, tatanan sosial/masyarakat dan tatanan politik. Hukum perdata yang merupakan ketentuan atau peraturan yang berkaitan dengan pribadi seseorang dengan orang lain, atau juga hukum sipil memiliki ruang lingkup yang luas dalam pengaturannya. Salah satu bidang hukum yang mengatur hubungan-hubungan antara individu-individu dalam masayrakat dengan sarana tertentu. Penggolongan dari hukum perdata yang ada saat ini antara lain meliputi: Hukum keluarga, Hukum harta kekayaan, Hukum kebendaan, Hukum perikatan, dan Hukum waris. Kajian kritis terhadap hukum perdata yang telah berlaku di Indonesia dengan menggunakan metode filsafat (filosofis), maka seharusya yang dijadikan dasar pemikirannya ialah falsafah Pancasila. Sebagaimana diketahui bahwa Pancasila merupakan sumber dari segala sumber hukum negara Indonesia. Hal yang demikian ini dirasa sesuai mengingat falsafah Pancasila adalah merupakan ruh perjuangan dari para pejuang bangsa, sebagai alat pemersatu, dari yang sebelumnya terkotak-kotak oleh suatu daerah/wilayah, ras, suku, golongan dan agama. Kata Kunci: Hukum Perdata, Filosofis, Pancasila   Abstract The law is the most important system in society to regulate life in relation to an order that is always moving both evolutionarily and revolutionarily. Order is regulated in the law itself including transcendental order, social/community order and political order. Private law which is a provision or regulation relating to someone's personal with others, or also civil law has a broad scope in its regulation. One area of ​​law that regulates the relationships between individuals in society with certain means. The current classification of private law includes: Family law, Property law, Material law, Engagement law, and inheritance law. Critical study of private law that has prevailed in Indonesia using philoshopy (philosophical) methods, then the basis for thinking should be the philosophy of Pancasila. As is known that Pancasila is the source of all sources of Indonesian state law. This is considered appropriate given the philosophy of Pancasila is the spirit of the struggle of the nation's fighters, as a unifying tool, from previously divided by a region / region, race, ethnicity, class and religion. Keyword: Private Law, Philosophical, Pancasila.

scholarly journals National Blockchain Laws as a Threat to Capital Markets Integration

2021 ◽  
Author(s):  
Matthias Lehmann
Keyword(s):  
International Institute ◽  
Private Law ◽  
Private International Law ◽  
The European Union ◽  
Legal Rules ◽  
Trade Law ◽  
International Trade Law ◽  
Commercial Code ◽  
The World ◽  
The Usa

Abstract Various states have started providing private law frameworks for blockchain transfers and crypto assets. France and Liechtenstein have adopted the first acts, while a commission of the British government sees no difficulties in extending property protection under the common law to crypto assets. In the USA, an amendment to the Uniform Commercial Code has been suggested, which has not stopped some states going their own, different way. The aim in all cases is to promote the use of modern distributed ledger technology and enhance investor protection. While these initiatives will increase legal certainty, they differ significantly. This has an important downside: there is a strong risk that the blockchain will be made subject to diverging legal rules. Similar to the world of intermediated securities, various national laws will need to be consulted to determine the rights and privileges of investors. This may increase transaction costs, thwart interoperability, and produce thorny conflict-of-laws problems. Markets risk being fragmented into national segments, with an inevitable diminution of their depth and liquidity. As a remedy, this article suggests developing uniform rules for the blockchain. Before national legislators and judges once again divide the world through idiosyncratic rules, the private law of crypto assets should be harmonized to the highest degree possible. Uniform rules should ideally be forged at the global level, by fora like the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL), and the Hague Conference on Private International Law. In the absence of worldwide rules, uniformization of private law should take place at the regional level—for instance, by the European Union. The article makes specific suggestions as to how this can be achieved and what the content of those rules should be.

DIGITAL FINANCIAL TOOLS FOR SOCIALIZING PRIVATE LAW

2021 ◽  
pp. 208-224
Author(s):  
Julia S. Kharitonova ◽  
◽  
Larisa V. Sannikova ◽  
Keyword(s):  
Public Relations ◽  
The United States ◽  
Legal Regulation ◽  
Private Law ◽  
Property Relations ◽  
The World ◽  
The Law ◽  
Private Investors ◽  
The Way

Nowadays, the law is being transformed as a regulator of relations. The idea of strengthe-ning the regulatory role of technologies in the field of streamlining public relations is making much headway in the world. This trend is most pronounced in the area of regulation of private relations. The way of such access to the market as crowdfunding is becoming increasingly widespread. The issuing of the so-called secured tokens is becoming popular for both small businesses and private investors. The trust in new ways of attracting investments is condi-tioned by the applied technology - the use of blockchain as a decentralized transparent data-base management system. Under these conditions, there is such a phenomenon as the democ-ratization of property relations. Every individual receives unlimited opportunities to invest via technologies. Thus, legal scholars all over the world face the question about the role of the law and law in these relations? We believe that we are dealing with such a worldwide trend of regulating public relations as the socialization of the law. Specific examples of issuing tokens in Russia and abroad show the main global trends in the transformation of private law. The platformization of economics leads to the tokenization and democratization of property relations. In this aspect, the aim of lawyers should be to create a comfortable legal environment for the implementation of projects aimed at democratizing property relations in Russia. The socialization of private law is aimed at achieving social jus-tice and is manifested in the creation of mechanisms to protect the rights of the weak party and rules to protect private investors. Globalization requires the study of both Russian and foreign law. To confirm their hypothesis, the authors conducted a detailed analysis of the legislation of Russia, Europe and the United States to identify the norms allowing to see the process of socialization of law in the above field. The generalization of Russian and foreign experience showed that when searching for proper legal regulation, the states elect one of the policies. In some countries, direct regulation of ICOs and related emission relations are being created, in others, it is about the extension of the existing legislation to a new changing tokenization relationship. The European Union countries are seeking to develop common rules to create a regulatory environment to attract investors to the crypto industry and protect them. Asian countries are predominantly developing national legislation in isolation from one another, but most of them are following a unified course to encourage investment in crypto assets while introducing strict rules against fraud on financial markets. The emphasis on the protection of the rights of investors or shareholders, token holders by setting a framework, including private law mechanisms, can be called common to all approaches. This is the aim of private law on the way to social justice.

Legal Regulation of Adjudication in Civil Code of the Russian Federation (Issues of Conflict Rules)

2015 ◽  
Vol 3 (5) ◽  
pp. 0-0
Author(s):  
Татьяна Лазарева ◽  
Tatyana Lazaryeva
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Legal Regulation ◽  
Civil Code ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The Russian Federation ◽  
The Law ◽  
Contractual Obligations ◽  
Rome I

The article deals with conflict of laws regulation of transfer of creditor’s rights to another person (assignment of claims (cessions) and transfer of rights under the law) in terms of amendments to Part III of the Civil Code of the Russian Federation. The author notes that though amendments to the separate article on cession are not fundamental, the amendments of other articles of the Civil Code of the Russian Federation, concerning contractual obligations, do influence regulation of relations between the parties in assignment. The article pays special attention to the new conflict of law rule regulating the transfer of the creditor’s rights under the law. Relevant court practice is analyzed. On the basis of comparing legislations of specific countries, as well as norms of EC No. 593/2008 (‘‘Rome I’’) Regulation and EC No. 864/2007 (‘‘Rome II’’) Regulation the author draws the conclusion that despite some differences in conflict of laws regulation of the transfer of the creditor’s rights, in general the Russian rules comply with modern trends in private international law in the majority of European countries.

Troubled Foundations for Private Law

2008 ◽  
Vol 21 (2) ◽  
pp. 459-476
Author(s):  
Stephen A. Smith
Keyword(s):  
Distributive Justice ◽  
Human Life ◽  
Civil Law ◽  
Corrective Justice ◽  
Property Law ◽  
Private Law ◽  
Wide Range ◽  
Commutative Justice ◽  
The Law ◽  
Historical Comparative

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations (contract, tort, unjust enrichment), though ignored and disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars (thanks in part to Gordley’s earlier work). Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories (e.g., those of Ernest Weinrib or Jules Coleman). In Gordley’s presentation, commutative (or ‘corrective’) justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ’distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations.

scholarly journals An Alternative View of the Legal Regulation of Civil Law Relations in the Digital Economy

2021 ◽  
Vol 16 (8) ◽  
pp. 52-62
Author(s):  
L. G. Efimova
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
Digital Economy ◽  
Civil Code ◽  
Alternative View ◽  
Electronic Document ◽  
Digital Rights ◽  
The Russian Federation ◽  
The Law

The paper substantiates the author’s proposal to amend the Civil Code of the Russian Federation, which is explained by the gradual creation of a digital economy in the Russian Federation. In particular, the author has examined and solved the following problems of the legal regulation of civil law relations in the context of digitalization: the problem of identifying the object of digital rights, the problem of legal qualification of the electronic form of the transaction, the problem of using a smart contract in civil transactions, the problem of using blockchain technology to create mixed payment systems. The paper proposes a non-standard solution to each of these problems—the author has prepared a draft federal law "On Amendments to Parts One and Two of the Civil Code of the Russian Federation in terms of legal relations arising in cyberspace." In particular, the author proposes to define digital rights as the absolute and relative rights to digital property named in this capacity, the content and conditions of implementation of which are determined by the law and the rules of the information system (protocol) that meets the characteristics established by the law. In the author’s opinion, an electronic document can exist in the form of a machine information file of any format or a computer program that meets the characteristics of an electronic document.

scholarly journals Evaluation Concepts in Russian Codifications of Civil Law

Lex Russica ◽  
2019 ◽  
pp. 37-50
Author(s):  
V. G. Golubtsov
Keyword(s):  
Essential Feature ◽  
Civil Law ◽  
Legal Regulation ◽  
Public Law ◽  
Civil Code ◽  
Property Law ◽  
Private Law ◽  
Private And Public ◽  
The Impact ◽  
Basic Evaluation

Based on general legal and civilistic experience in the study of evaluative concepts, the author investigates the general and the specific in their civil law nature. As the result of the study, the author draws the conclusion that the existence of evaluative concepts forms a distinctive essential feature of civil law as private law. It is noted, however, that the doctrine, law-maker and law-enforcer need basic guidelines that will allow to define objective criteria for nominating concepts as evaluative, as well as for determining the boundaries of their systematic interpretation. Also, the author concludes that the impact of evaluation concepts on legal regulation in private and public law is different. In civil law, depending on the localization in the text of the Civil Code, it is possible to distinguish two groups of evaluation concepts. The first group includes the basic evaluation concepts that allow us to see the goals, meaning and specifics of civil law regulation. The second group, in the author’s opinion, includes peripheral evaluation concepts that are utilized by property law and separate contractual constructions and the presence of which allows to avoid unnecessary causality and, at the same time, makes it possible to bring legal regulation closer to real relations.

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