The Abuse of Ownership: A Social Justice Perspective

2021 ◽  
Vol 10 (2-3) ◽  
pp. 263-276
Author(s):  
Aleksa Radonjić
Keyword(s):  
Social Justice ◽  
Property Rights ◽  
Property Right ◽  
Private Law ◽  
Value System ◽  
Political Analysis ◽  
Extensive Property ◽  
Justice Theories ◽  
The Right ◽  
The Way

Abstract Given that property rights are politically sensitive, and that the right of ownership is the most extensive property right, this article undertakes a political analysis of the so-called abuse of ownership doctrine as a private law limitation to the right of ownership. The notion of the abuse of rights as is defined and described by the Serbian academic, Professor Vodinelić, is explained, and examined with respect to how it fits into four different social justice theories. This analysis shows that the doctrine of abuse of rights would change in structure, and in the way it is applied, depending on the underlying value system which is adopted in a society.

Third Party Effects in Private Law

2020 ◽  
pp. 107-136
Author(s):  
Ben McFarlane ◽  
Andreas Televantos
Keyword(s):  
Property Rights ◽  
Property Right ◽  
Third Party ◽  
Private Law ◽  
Party Autonomy ◽  
Practical Operation ◽  
Different Types ◽  
The Law ◽  
The Right

This chapter identifies and explores a core task of private law: to determine “third party effects” of transactions. We ask to what extent an A–B transaction may affect C, a party who enters into a subsequent transaction with A, or otherwise interferes with the right claimed by B. We show first that such third party effects are controlled not only by rules relating to legal property rights and equitable interests, but also by parts of the law of agency, of partnerships, and of tort. Secondly, whilst a range of doctrines thus share this function of controlling third party effects, it is important to distinguish between the precise legal form used by each doctrine. Thirdly, we argue that even when considering one particular form, such as that of a legal property right, third party effect is determined by the interaction of different types of rules, with the practical operation of one type of rule modified by the application of a different type. For this reason, attention must be paid to the interaction between the different forms used to govern third party effect. There is a question as to whether the law in this area is unduly complex, but we suggest that, so long as the range of forms tracks the diversity of ordinary transactions, private law usefully enhances party autonomy by offering parties these different means of casting their legal relations.

CONSTITUTIONAL AND TRANSLATIVE ACQUISITION OF RIGHTS IN THE CONTEXT OF THE DOCTRINE OF OWNERSHIP TRANSFER

2017 ◽  
Author(s):  
Myroslava Hudyma ◽  
Keyword(s):  
Property Rights ◽  
Property Right ◽  
Legal Capacity ◽  
Close Attention ◽  
Ownership Transfer ◽  
The Right ◽  
Qualitative Characteristics

Within the framework of the general doctrine of constitutive and translational acquisition of rights, the publication made an attempt to identify their suitability for describing the phenomenon of ownership transfer. The general characteristics of translational and constitutive acquisition of rights are analyzed, their differences are highlighted, and it is emphasized that the specified types can cover such legal situations as full transfer of the right (the right as a whole), and transfer of a part of powers (as components of the certain right). The paper underlines that the differences between the types of acquisition of rights are not so much quantitative (one jurisdiction or their complex is transferred), as qualitative characteristics and such issues are especially relevant in the spectrum of research on the transfer of ownership as a right that includes a triad of powers. Close attention is paid to the construction of constitutive acquisition of right, the possibility of use of which is extremely controversial, due to the overwhelming denial of the correctness of separation and alienation of a separate authority from ownership right, because the approval of the latter will lead to theoretical dissonance on the existence of incomplete (split ownership). It is emphasized that the application of the construction of the transfer of authority can take place in different shades of meaning and be combined with the right alienation, and without it. Therefore, the construction of right granting without alienation of the right is quite viable. Moreover, the transfer of one or even several powers of the owner is not only practically possible, but also necessary to establish limited property rights on the basis of full property right (ownership right). However, it is noted that in these cases, the acquirer will not receive the right of the alienator as a whole, but only certain legal possibilities of behavior in relation to a particular good. The legal capacity of the acquirer will not coincide with the legal capabilities of the alienator in content and scope, and therefore to talk about the transfer of ownership is incorrect, only a certain authority (powers) of the owner will be transferred, provided its (their) separation admissibility. The paper concludes that the specifics of property rights, which forms a triad of indivisible powers, determines the possibility of applying the construction «transfer of ownership» only to cases of translational acquisition of right, in which the acquirer receives a right identical to the right of the grantor both in content and volume.

scholarly journals What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

2004 ◽  
Vol 17 (1) ◽  
pp. 61-81 ◽  
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Freedom Of Expression ◽  
Social Democracy ◽  
Recent Attempt ◽  
Private Law ◽  
Human Rights Norms ◽  
The Right ◽  
Higher Law

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.

Intergenerational Wealth Transfer and the Need to Revive and Metamorphose the Israeli Estate Tax

2014 ◽  
Vol 8 (1) ◽  
pp. 59-101 ◽  
Author(s):  
Daphna Hacker
Keyword(s):  
Social Justice ◽  
Property Rights ◽  
Wealth Transfer ◽  
Estate Tax ◽  
Inheritance Tax ◽  
History Of ◽  
The Subject ◽  
The Rich ◽  
The Right ◽  
The Needy

Abstract This article suggests enacting an accession tax instead of the estate duty – which was repealed in Israel in 1981. This suggestion evolves from historical and normative explorations of the tension between perceptions of familial intergenerational property rights and justifications for the “death tax,” as termed by its opponents, i.e., estate and inheritance tax. First, the Article explores this tension as expressed in the history of the Israeli Estate Duty Law. This chronological survey reveals a move from the State’s taken-for-granted interest in revenue justifying the Law’s enactment in 1949; moving on to the “needy widow” and “poor orphan” in whose name the tax was attacked during the years 1959–1964, continuing to the abolition of the tax in 1981 in the name of efficiency and the right of the testator to transfer his wealth to his family, and finally cumulating with the targeting of tycoon dynasties that characterizes the recent calls for reintroducing the tax. Next, based on the rich literature on the subject, the Article maps the arguments for and against intergenerational wealth transfer taxation, placing the Israeli case in larger philosophical, political, and pragmatic contexts. Lastly, it associates the ideas of accession tax and “social inheritance” with inspirational sources for rethinking a realistic wealth transfer taxation to bridge the gap between notions of intergenerational familial rights and intergenerational social justice.

Part I The Nature of Intangible Property, 7 Intellectual Property

2018 ◽  
Author(s):  
Smith Marcus ◽  
Leslie Nico
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Industrial Design ◽  
Property Right ◽  
Moral Rights ◽  
Intellectual Property Right ◽  
Confidential Information ◽  
The Right

This chapter examines intellectual property. The governing principles relating to intellectual property are very different from the principles that underlie other choses, like rights under contracts or debts. Like shares, intellectual property rights are characterized by specific statutory rules relating to their creation, as well as to their transfer. Intellectual property rights can be divided under six heads: patents; copyright; moral rights; industrial design rights; trademarks; and confidential information. In each case, the holder of the right is able—by virtue of ownership—to prevent others from doing what they otherwise could do. Each of these intellectual property rights has four different aspects: the intellectual property right itself; rights of action for infringement; validity challenges; and licensing.

scholarly journals THE MODERN VISION OF THE SYSTEM OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE

2021 ◽  
Vol 75 (2) ◽  
pp. 52-59
Author(s):  
Victoria Shekhovtsova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
The State ◽  
Point Of View ◽  
Property Right ◽  
Intellectual Property Right ◽  
Creative Activity ◽  
The Right ◽  
Intellectual Potential

The article is devoted to the research of the intellectual property rights system in Ukraine. Intellectual property is the result of the creative activity of any person or group of people. The author studied the categories «intellectual property» and «intellectual property right», investigated the principles of intellectual property and the system of intellectual property rights of Ukraine. In Roman law, there was the term «property», because the «property right» in its classical meaning was formed in Rome, and related to private relationships. Intellectual property is the property of a person that arose as a result of her creativity. However, for our Ukrainian legislation, the expression «intellectual property» is «terra incognita». Yes, intellectual property is studied by such branch legal sciences as: civil law, administrative law, international law, and others. Formed the State Service of Intellectual Property, but the organization of the state system of legal protection of intellectual property, in our difficult times, wants a better one. In the legal literature on intellectual property issues various definitions of «intellectual property right» are given. From a subjective point of view – this is a subjective right, and from an objective point of view – a civil law institute, a set of legal norms that regulate relations in the system of creation and protection of intellectual property. Man, his freedom and rights are the most important value of evolutionary development of society, which manifests itself in the growth of the intellectual potential of the population of each country. Only man possesses intelligence, creative potential and creative abilities. In addition to it, on earth, no living creature can create. Creative activity is the most important aspect of human life, which allows you to convey your talent to society. The consequence of this activity is something new, unique, unique and original. The accumulated products of the human mind are the heritage of the nation, which determine its further development.The Constitution of Ukraine guarantees to the citizens of the state freedom of scientific, artistic, literary and technical creativity, protection of intellectual property rights, moral and material interests arising in connection with various types of intellectual activity. Every citizen has the right to the results of his intellectual, creative activity; no one can use or distribute them without his consent, with the exception of the statutory provisions. The intellectual potential of the nation, in the form of improving education, production, culture, science and technology, needs constant support from our state. The Civil Code of Ukraine for the first time in our national legislation was given a formal definition of the right of intellectual property, as the rights of the individual to the result of intellectual, creative activity or other object of intellectual property rights.

scholarly journals EUROPEANIZATION AND RECODIFICATION. USUFRUCT

2021 ◽  
pp. 40
Author(s):  
R. Maydanyk ◽  
◽  
N. Popova ◽  
N. Maydanyk ◽  
◽  
...  
Keyword(s):  
Property Rights ◽  
Operative Management ◽  
Property Right ◽  
Property Management ◽  
Economic Management ◽  
Legal Structure ◽  
Operational Management ◽  
The Law ◽  
The Right

The article examines the features of usufruct in the European countries of Romano-Germanic law, determines the terms for the implementation in the Law of Ukraine of the best practice of usufruct in terms of Europeanization and Recodification. The peculiarities of usufruct in some countries of Romano-Germanic law, particularly in Germany, France, Poland, the Netherlands, Switzerland, Georgia, Moldova and Russia are studied. Usufruct, which is a flexible and universally recognized in the legal systems of Western Europe property right of personal possession for use, which is treated as an independent property right to another's property in the countries of Roman legal family or a kind of easement in the countries of German legal family, remains unknown to most countries – republics of the former Soviet Union. The law of Ukraine also does not provide for the institution of usufruct and regulates the relationship of long-term use of someone else's real estate through a number of limited property rights (emphyteusis, superficies, the right to economic management, the right to operational management) and obligational legal structures (usually land lease and property management). The authors came to the conclusion that it is necessary to introduce the institute of usufruct into the Ukrainian law by supplementing the Civil Code of Ukraine with a new chapter "Uzufruct", the framework provisions of which are proposed in this paper. In the law of Ukraine it is expedient to recognize usufruct as an independent, different from easement, real right of personal possession for use, which serves as a general provision on emphyteusis (the right to use someone else's land for agricultural purposes). In this regard, the provisions of Chapter 32 of the Civil Code of Ukraine on usufruct should be applied to relations under emphyteusis, unless otherwise provided by the provisions of the Central Committee on emphyteusis and does not follow from its essence. According to its purpose, the legal structure of the usufruct can perform any functions of personal possession for the use of another's property, which allows the use of this legal structure in any area of property use, regardless of whether the purpose is income or other socially useful result (charity, etc.). The absence of usufruct in the national law hinders the effective transformation of legal titles on a state and municipal property by waiving the right of economic management and the right of operative management in terms of recodification of the civil legislation, and does not promote formation of the full-fledged land market and its steady development in the terms of cancellation of the moratorium on sale of the agricultural lands, conducting commodity of agricultural production in Ukraine. Regarding the recodification and cancellation of the Commercial Code, usufruct is the most acceptable replacement of the right of economic management and the right of operative management. Along with long-term lease and property management, the usufruct is functionally similar to the right to economic management and the right to operational management. Unlike property management and lease, usufruct provides for paid or gratuitous use of property in the user's own interest (usufructuary), imperatively defined by law, the content of the rights of participants and a list of grounds for their termination under the rules of property rights.

Davidic Kingship in Isaiah

2020 ◽  
pp. 279-292
Author(s):  
H. G. M. Williamson
Keyword(s):  
Social Justice ◽  
Eighth Century ◽  
The Right ◽  
Universal Scale ◽  
The Way

The right of the Davidic dynasty to rule in Jerusalem was assumed by the eighth-century prophet Isaiah. In his own writings, however, he urged that this was not just a position of privilege but a platform from which to uphold social justice in his kingdom. Though later parts of the book transfer the royal status to the community of those who survived the destruction of the kingdom, the role envisaged remains essentially the same, albeit played out now on a universal scale. It is this continuity of role rather than of position that both unites the various parts of the book in relation to Davidic kingship and opens the way to its messianic application.

Original Acquisition and Unilateralism: Kant, Hegel, and Corrective Justice

2012 ◽  
Vol 25 (1) ◽  
pp. 119-136 ◽  
Author(s):  
N.W. Sage
Keyword(s):  
Property Rights ◽  
Distributive Justice ◽  
Property Right ◽  
Corrective Justice ◽  
Private Law ◽  
Legal Institutions ◽  
Unilateral Action ◽  
Civil Condition ◽  
Original Acquisition ◽  
Determine Property

Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else (to respect the property right) through her own “unilateral” action or choice. This article first addresses proposed Kantian solutions to the supposed “unilateralism” problem, which involve the creation of a “civil condition” of public legal institutions to determine property rights. Such solutions make property rights a matter of distributive justice rather than corrective justice. Moreover, they cannot actually solve the unilateralism problem. But in any event, the supposed “unilateralism” problem is in fact no problem at all for Kant. This is because one person’s original acquisition does not limit others’ “freedom” in the Kantian sense of that term. In this respect Kant’s account of property is equivalent to Hegel’s, which contemporary Kantians have criticized for denying any problem of unilateralism. And both Kant and Hegel’s accounts are fully consistent with a theory that explains property as a matter of corrective, rather than distributive, justice.

The Right of Personal Freedom

2019 ◽  
Vol 65 (2) ◽  
pp. 249-262
Author(s):  
Marina L. Nokhrina
Keyword(s):  
Property Right ◽  
Private Law ◽  
Legal Scholarship ◽  
Personal Freedom ◽  
General Ability ◽  
The World ◽  
The Law ◽  
The Right ◽  
Legal Entities

This paper focuses on ‘absolute’ relationships in private law that do not involve any influence exerted by persons - legal entities or individuals - on external items, whether tangible or otherwise. Such relationships are non-property in nature. Their specific feature is that they exist only as long as a person himself exists - in this respect, they are essentially ‘personal’. Therefore, the relationships in question may be classified as personal and non-property relationships. In such relationships, persons are interested in expressing their individuality, which makes it possible to treat such interest as an ‘absolute’ (i.e., available against the world at large) personal non-property right. This right is the right of personal freedom that requires that any conduct in which a person is engaged in the non-property sphere shall be protected by the law, with certain exceptions the law provides. The paper defines the right of personal freedom, describes its content and legal features, and demonstrates that this right is different from the general ability to have rights. The paper puts forward arguments to support the personal and not political nature of certain powers that comprise the right of personal freedom. The author presents both practical and theoretical arguments in favour of the right of personal freedom being introduced as a new concept both in legal scholarship and legislation.

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