scholarly journals Problems Related to the Abolition of Divided Real Estate Ownership

2016 ◽  
Vol 13 (2) ◽  
pp. 77-88
Author(s):  
Jolanta Dinsberga ◽  
Ilona Tiesniece

Abstract Legal relationship between apartment owners in residential buildings and the land owners, that is, divided real estate ownership, was created in the Republic of Latvia in 1990, within the framework of the Land Reform, restoring property rights of the former owners or their heirs or privatising apartments in multi-apartment residential buildings. The existence of such legal relationship created different lease problems and restrictions on the property rights to the owners of both the building and the land. To abolish the legal relationship related to divided real estate ownership, the Ministry of Justice of the Republic of Latvia has developed a draft law Regarding the Abolition of Mandatory Divided Real Estate Ownership in Multi-Apartment Buildings (hereinafter referred to as Draft Law). Unfortunately, in the opinion of authors of this article, there are serious shortcomings to the Draft Law which must be corrected. The aim of the research is to identify the problematic issues by selecting and analysing the legislation on the abolition of the divided real estate ownership, which is related to the calculation of redemption price, payment method and consequences of non-payment, which are not regulated by the new Draft Law. The article reflects research on the determination and calculation of redemption price reglamented by the Draft Law and also analyses the Law of December 8, 1938, On the Abolition of Divided Real Estate Ownership and its practical implementation, which may significantly influence the redemption price and the method of its calculation; however, the mentioned law has been disregarded in developing the Draft Law. Thus the research has both theoretical and practical significance. For the research purposes general research methods, such as historical, analytical, inductive, deductive, logical-constructive and descriptive methods, are used. For the interpretation of legislation norms, grammatical, systemic, teleological and historical methods are used.

Author(s):  
Arta Snipe

Pēc Latvijas valsts neatkarības atjaunošanas uzsāktajā zemes reformā, atjaunojot bijušajiem īpašniekiem vai viņu mantiniekiem īpašuma tiesības uz zemi, uz kuras padomju varas gados bija uzceltas daudzdzīvokļu dzīvojamās ēkas, likumdevējs radīja pamatu tā saukto dalīto īpašumu pastāvēšanai, pieņemot lēmumu zemes un ēkas īpašnieku starpā esošās attiecības regulēt atbilstoši nomas līguma noteikumiem. Šo tiesisko attiecību nodibināšanas pamats ir likums – normas, kas iekļautas likumā “Par zemes reformu Latvijas Republikas pilsētās” un likumā “Par valsts un pašvaldību dzīvojamo māju privatizāciju”. Šā pētījuma mērķis ir izvērtēt dažādo tiesu praksi un dažādos juridiskajā periodikā paustos viedokļus, interpretējot spēkā esošās tiesību normas un judikatūras atziņas, lai identificētu prasījuma tiesību rašanās brīdi, kas ir prasījuma tiesību noilguma tecējuma sākuma brīža noteikšanas priekšnoteikums. Pētījumā ir secināts, ka jānošķir prasījuma tiesības par zemes nomas tiesisko attiecību konstatāciju vai līguma noslēgšanu un prasījuma tiesības par nomas līguma izpildi – nomas maksas samaksu. Pēdējās rodas vien pēc līguma noslēgšanas vai tiesas sprieduma spēkā stāšanās. Šajā brīdī arī sāk tecēt noilgums prasījuma tiesībām, kas izriet no noslēgtā nomas līguma. Tiesību normu interpretācijas un tiesību doktrīnas un judikatūras analīzes rezultātā pētījumā secināts, ka prasījuma tiesības par zemes nomas tiesisko attiecību konstatāciju vai nomas līguma noslēgšanu pret personu, kas veic daudzdzīvokļu ēkas pārvaldīšanu un apsaimniekošanu, zemes īpašniekam rodas no brīža, kad apsaimniekotājs ir pārņēmis konkrētās ēkas pārvaldīšanu, vai no zemes īpašuma tiesību iegūšanas brīža – atkarībā no tā, kas iestājies pēdējais, savukārt prasījuma tiesības par zemes nomas tiesisko attiecību konstatāciju un nomas maksas piedziņu pret atsevišķiem dzīvokļu īpašniekiem zemes īpašniekam ir radušās vien pēc 2015. gada 1. oktobra, kopš likums pieļauj tiešo maksājumu pieprasīšanu par ēkas uzturēšanai nepieciešamajiem pakalpojumiem. After the restoration of the independence of the Republic of Latvia, within the framework of the initiated land reform, the legislature restored property rights of former owners or their heirs to the land which apartment houses were built on during the Soviet times, thus creating the basis for the so-called divided ownership. Legislator made a decision to regulate relationships between landowners and building owners as lease agreement. Although the legal relationship of compulsory land lease is established by law – the norms included in the law “On Land Reform in the Cities of the Republic of Latvia” and the law “On Privatisation of State and Local Government Residential Houses”, there are different opinions as to whether legal relations between the parties could be classified as a legal transaction, or furthermore – as a commercial transaction, and, consequently, whether claims arising from compulsory land lease relations arise from the law or from a transaction. The aim of the research is to identify the moment when the right to claim has been established, which is a prerequisite for establishing the moment when the limitation period of the claim begins. It has been concluded in the research that it is necessary to distinguish between two claims a landowner can have: a claim to establish a legal relationship of land lease (conclude an agreement) and the claim in respect to execution of a concluded lease agreement – payment of the lease fee. The latter arises only after the conclusion of the agreement – either voluntarily or through the court; the limitation period for the claim arising from the concluded lease agreement begins at that moment. The interpretation of legal norms and analysis of legal doctrine and judicature in the research resulted in the conclusion that the claim to bring an action to conclude a land lease contract against the manager of the apartment house rises for the landowner at the moment the manager has taken over the management of the respective house, or at the moment the land property rights were acquired, whichever comes last, while the claim to conclude a land lease contract against individual apartment owners for the landowner arose only after October 1, 2015, when the law allowed to request direct payments from apartment owners for the services required for maintenance of the building.


2019 ◽  
Vol 16 (1 (3)) ◽  
pp. 185-198
Author(s):  
Sławomir Pawłowski

The subject of the discussion is the legal nature of restrictions on the use of real estate in relation to the protection of environmental resources. Art. 129 of Environmental Law can have the effect that the use of a property or its part is impossible or substantially reduced. In doctrine, the dominant view is that such public-law interference in the right of property assumes the form of restriction referred to in Art. 64, par. 3 of the Constitution of the Republic of Poland. Another interpretation is also possible. Since the depth of the interference with property rights can lead to the effect that this property will become, as the Ombudsman has pointed out recently, “useless” to the owner, it would be reasonable to consider whether or not such property is de facto being expropriated. In such a case, the standard of constitutional control would be Art. 21, sec. 2.


2017 ◽  
Vol 4 (3) ◽  
pp. 167-175
Author(s):  
P N Kobets

Subject of study are the legal and organizational basis of counteraction of corruption crime in the Republic of China and measures for its counteraction. In the process of working on a publication the author uses a set of such General scientific research methods as comparison, analysis, synthesis, and formal-logical, comparative-legal and other methods including: statistical and historical methods. The author attempts to describe the complex of problems of both theoretical and applied nature, related to the functioning and improvement of anti-corruption crime in China. They conducted the analysis of the legal framework, the characteristics of the legal techniques relating to the criminal prohibitions of corruption and number of organizational measures aimed at preventing crimes of corruption. In the process of the study addressed the provisions of existing acts of law-making in the field of combating corruption: the Constitution of the PRC, the criminal code of the PRC, laws and regulations, party and departmental documents. The author comes to the conclusion that criminal and disciplinary sanctions are the most commonly used measures in the fight against corruption worldwide and this feature is most clearly evident in China, where such repressive mechanisms represent the main levers of the fight against the considered phenomenon. The necessity of studying the legislative experience of China in the sphere of counteraction of corruption for its application by the Russian legislator, taking into account national specifics of the domestic legal culture and legal practice. Scientific novelty of research is defined by the system analysis of complex counteraction of corruption crime in China. The practical significance of the work lies in the fact that the mastery of the positive and negative sides of the experience of combating corruption crime in China can be used in the preparation of information and analytical materials, practical issues, building the system of organizational and managerial work in fighting corruption. Keywords: People’s Republic of China, the merging of crime and power, industrial growth, anti-corruption activities, punishment for corruption, ethical norms, criminal law, legal techniques, crime prevention.


2022 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Madina О. Kassimova ◽  
Yerbol A. Omarov ◽  
Ramazan R. Zhilkaidarov ◽  
Yerlan S. Abulgazin ◽  
Ainur A. Sabitova

Purpose The fight against corruption, which undermines the efficiency of the state apparatus and public confidence in public institutions, remains one of the critical present-day tasks. In this regard, the purpose of this study is to identify the available possibilities and real practice of law enforcement of the norms on investigative prevention, the practical significance of this institution and its potential. Design/methodology/approach The study investigated theoretical materials on criminological prevention, legislative norms and available law enforcement practice. Findings It was discovered that, in general, the available statutory regulation is insufficient for the full-fledged practical implementation of the potential of investigative prevention. An exception is specialised prevention, assigned as one of the main tasks to the Agency of the Republic of Kazakhstan for Combating Corruption. Proposals have been formulated to improve anti-corruption investigative prevention in other bodies of pre-trial investigation, considering the identified risks. Originality/value The uniqueness of the situation lies in the fact that the existence of the institution of investigative prevention, in fact, is limited to the post-Soviet space. The elimination of formalism in the approach to this method of crime prevention can contribute to greater efficiency in the fight against crime, including corruption.


Author(s):  
Andrii Hryniak ◽  
Nadiia Milovska

The study of the specific features of recognition of ownership of newly created real estate is conditioned by its purpose, which is to determine the grounds for application of remedy upon recognising ownership of newly created construction object, stipulated by Article 392 of the Civil Code of Ukraine. The purpose of the study also includes identification of gaps and discrepancies in the legislation of Ukraine and judicial practice, which arise during application of the appropriate remedy for a substantive right, and the development of proposals for their elimination. In this regard, the main method of this study was comparative law, which allowed to identify and analyse different approaches to the legislative consolidation and application of such a remedy as the recognition of property rights. Upon concluding an agreement on sale and purchase of property rights to immovable property, the buyer receives a limited real right, under which it is endowed with certain, but not all rights of the property owner. Nevertheless, in recognising the ownership of newly created real estate, the study proves the feasibility of applying the method of protection stipulated in Article 392 of the Civil Code of Ukraine. It is substantiated that the buyer, who has performed its monetary obligations under the agreement on sale and purchase of real property rights, having fully paid the contractual value, is considered to have committed actions aimed at the occurrence of legal facts necessary and sufficient to obtain the legal claim for the transfer of ownership of the construction object. In this regard, it has been proved that the effectiveness of the remedy stipulated by Article 392 of the Civil Code of Ukraine, which is applied upon recognising the ownership of newly created immovable property, is aimed at levelling the possibility of further unlawful actions of third parties in relation to such property, and is achieved through the enforcement of judgement by recognition of ownership of a specific object, and in case of its destruction – by obtaining appropriate compensation. The practical significance of the study of the application of Article 392 of the Civil Code of Ukraine upon recognising the ownership of newly created real estate is that its results are designed to promote further research, to improve the legal regulation of relations, the object of which is newly created real estate, to optimise the implementation of property rights and law enforcement in this area


Author(s):  
Arta Snipe

Arta Snipe savā rakstā analizē tiesiskos darījumus un to noslēgšanas praksi zemes likumiskās (piespiedu) nomas tiesisko attiecību gadījumā. Problēmjautājumi veidojas tādēļ, ka, pieņemot lēmumu zemes un ēkas īpašnieku savstarpējās tiesiskās attiecības regulēt atbilstoši nomas līguma noteikumiem, likumdevējs radīja pamatu t. s. dalīto īpašumu pastāvēšanai. Šo piespiedu nomas tiesisko attiecību nodibināšanas pamats ir likums – normas, kas iekļautas likumā “Par zemes reformu Latvijas Republikas pilsētās” un likumā “Par valsts un pašvaldību dzīvojamo māju privatizāciju”. Autore, interpretējot spēkā esošās tiesību normas un judikatūras atziņas, aplūko daudzveidīgo tiesu praksi un dažādos juridiskajā periodikā paustos viedokļus. Pētījuma mērķis ir izvērtēt, vai zemes piespiedu noma ir atzīstama par darījumu un vai tā ir komercdarījums gadījumos, ja vismaz viena no darījuma pusēm ir komersants, un konstatēt šī darījuma noslēgšanas brīdi un prasījuma tiesību rašanās brīdi. Autore secina, ka zemes piespiedu noma nav atzīstama par tiesisku darījumu Civillikuma izpratnē, tādēļ to nevar atzīt par komercdarījumu Komerclikuma izpratnē. In her article Arta Snipe analyses legal transactions and the practice of creating a legal (compulsory) lease of land. The problems arise due to having decided upon regulating legal relations between land and building owners in accordance with the terms of lease agreement, the lawmakers created the grounds for existence of shared property. The basis for the establishment of such a compulsory lease relationship is the law – norms included in the Law “On Land Reform in the Cities of the Republic of Latvia” and in the Law “On Privatization of State and Municipal Residential Buildings”. The author, interpreting the existing legal norms and case-laws, addresses the multifaceted court practice and the viewpoints expressed in various periodicals dealing with legal issues. The study aims at assessing whether compulsory lease of land can be admitted transaction or commercial transaction if one of the sides is a merchant and stating the time of the transaction and time of the claim. The author has concluded that compulsory lease of land cannot be considered as a legal transaction, according to the Civil Law, therefore it cannot be claimed as commercial transaction according to the Commercial Law.


Author(s):  
Galyna Moroz

Purpose. The article is aimed at analyzing the general theoretical principles and the essential characteristics of legal restrictions in environmental law; defining category of “environmental legal restrictions”, their content, system and the status of the respective legislation. Methodology. The methodology consists in carrying out a comprehensive analysis of the provisions of environmental legislation and formulating relevant conclusions on this basis. During the research, the following methods of scientific research were used: terminological, systemic and structural, comparative legal, structural and functional. Results. The objectively determined necessity of unconditional adherence to the legally established environmental requirements, prohibitions and restrictions as well as their potential scientifically substantiated enhancement in order to achieve environmentally significant goals oriented towards the priorities of sustainable development is substantiated. Restrictive mechanisms are scattered across statutory and regulatory acts of different legal force and even different branches of law, therefore, the need for their systematization and unification as well as generalization of the experience of their practical implementation in order to establish a comprehensive system of environmental restrictions is discussed. In our opinion, the conceptual basis and general essential characteristics of public environmental requirements and restrictions should be reflected in the future Environmental Code of Ukraine. Scientific novelty. In the course of the research, the author defines restrictions in environmental law as a specific sectoral imperative mechanism for regulating relations in the field of environmental safety, which consists in systematically introducing legislation on imperative provisions of environmental law as well as establishing specific legal regimes and mechanisms for their application and implementation. Practical significance. The main conclusions can be used in law-making and law-enforcing activities, as well as in further theoretical and legal research and in the educational process.


2020 ◽  
Vol 10 (1) ◽  
pp. 28-32

The relevance of the work is determined by the fact that the right to life belongs to the basic constitutional human rights, therefore, its observance and protection is the duty of the state. Despite its undeniable importance, today the right to life anywhere in the world is not really ensured in sufficient quantities. The constitutional consolidation of the right to life raises a number of issues related to the concept, nature, legislative and practical implementation of this right. It should be noted that various aspects of the human right to life were considered in the scientific works of G.B. Romanovsky, O.G. Selikhova, T.M. Fomichenko, A.B. Borisova, V.A. Ershov and other Russian authors. The aim of the study is to study and comparative analysis of the legal content of the constitutional norm that defines the right to life, to comprehend and identify possible problems of the implementation of this right. To achieve this goal, this article discusses relevant issues of ensuring the right to life, proclaimed by Article 20 of the Constitution of the Russian Federation and Article 27 of the Constitution of Azerbaijan Republic. The results of a comparative analysis of these constitutional norms and the relevant norms of industry law allow us to determine, that there is no contradiction between Article 20 of the Constitution of the Russian Federation and the norms of the criminal legislation of the Russian Federation, which imply the death penalty as an exceptional measure of punishment, because a moratorium has been imposed on the death penalty in the Russian Federation since April 16, 1997. However, after the abolition of the death penalty in the criminal legislation of the Republic of Azerbaijan in 1998, there was a discrepancy between parts II and III of Article 27 of the Constitution of the Republic of Azerbaijan and the criminal legislation of Azerbaijan Republic that requires the introduction of the necessary changes in the content of the analyzed constitutional norm. The value of the work is determined by the fact that the introduction of appropriate changes will contribute to the further improvement of the Constitution of the Republic of Azerbaijan and the effective implementation of the right to life of everyone.


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