VI. The Brazilian civil code of 1916: principles, method and institutional conditions of private law modernization

2021 ◽  
Vol 138 (1) ◽  
pp. 178-225
Author(s):  
Thiago Reis
Keyword(s):  
Civil Code ◽  
Point Of View ◽  
Private Law ◽  
Law System ◽  
Parliamentary Debates ◽  
Institutional Conditions ◽  
Old Order ◽  
Political Perspective ◽  
Legal Methodology ◽  
Prevailing View

Abstract The article analyzes the elaboration of the Brazilian civil code of 1916 as part of a broader political project of Republican modernization, focusing on the relation between private law, politics and economics in Brazil at the turn of the 20th century. The basic argument is that the consolidation of the Republican regime during the presidency of Campos Sales (1898–1902) provided the institutional conditions that paved the way for the codification of civil law. From the political perspective, parliamentary debates indicate that the civil code draft quickly turned into an instrument of political bargain and opposition to the president’s authority. From the legal point of view, the paper argues that, contrary to the prevailing view in Brazilian private law scholarship, the code represented a real attempt to break with the old order and create the conditions for a private law system based on equal juridical freedom. Finally, the paper explores the connections between the reform of legal methodology and legislative modernization, pointing both at the normative principles guiding the civil code elaboration and at the opposition it was faced with in Brazilian society.

scholarly journals Więź emocjonalna ze zwierzęciem a dobra osobiste

Radca Prawny ◽  
2021 ◽  
pp. 148-167
Author(s):  
Karolina Panfil
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Private Law ◽  
Personal Interest ◽  
Monetary Compensation ◽  
Personal Interests ◽  
Legal Consequences ◽  
Prevailing View

Emotional bond with an animal and personal interests The paper looks at the legal consequences of a domesticated animal’s death in the sphere of private law. A prevailing view of the Polish doctrine excludes any claims aimed at monetary or non-monetary compensation of the harm suffered by an owner as a result of an animal’s death. Several recent cases concerning such claims, resolved by the Polish courts differently, have been criticized. In particular, most authors think that the emotional bond between a person and their animal cannot qualify as a personal interest protected by Article 24 of the Polish Civil Code. The article discusses critically the majority view and presents arguments in favor of a different approach to the civil law compensation for harm caused by a domesticated animal’s death.

A.L. MAKOVSKY AND THE REVIVAL OF RUSSIAN PRIVATE LAW

2021 ◽  
Vol 20 (6) ◽  
pp. 8-17
Author(s):  
E.A. SUKHANOV
Keyword(s):  
Intellectual Property ◽  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
Point Of View ◽  
Private Law ◽  
Public Interests ◽  
Private And Public ◽  
The Russian Federation

The article highlights the role of prof. A.L. Makovsky in the creation of the new Civil Code of the Russian Federation of 1994–2006, as well as in the organization of the practice of its application and the development of the Concept for the Development of Civil Legislation of the Russian Federation in 2009. Special attention is paid to the activities of A.L. Makovsky on the preparation of the Fourth Part of the Civil Code of the Russian Federation and the concept of intellectual rights enshrined by it, opposing the traditional archaic concept of “intellectual property”. The importance of the need to increase the attention of civil law to the issue of protecting the rights and interests of citizens and other weakest participants in civil legal relations in their opposition to the interests of large companies striving to take a privileged position in property turnover is shown. From this point of view, the author substantiates the need for a significant adjustment in the understanding of the balance of private and public interests, which is the basis of civil law regulation.

scholarly journals Les droits du mineur en vertu de la Partie VI de la Loi régissant les sociétés commerciales canadiennes

2005 ◽  
Vol 21 (2) ◽  
pp. 399-425 ◽  
Author(s):  
Robert Demers
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Civil Code ◽  
The State ◽  
Point Of View ◽  
Federal Legislation ◽  
Private Law ◽  
Important Trend ◽  
Bona Fide ◽  
A Minor

Transfers of shares in the private law of the Province of Quebec raise numerous questions. The rights of the bona fide transferee for value are not clearly settled by the Civil Code and the provincial Companies Act is silent on the issue. In the first part of this article, the author deals with the state of the civil law on the question, illustrating the discussion with a study of the rights of a minor to proceed against bona fide transferees generally and more specifically, under articles 297 and 1487 C.C. In the second part of the article, the question is viewed from the point of view of the federal legislation. Part VI of the Canada Business Corporations Act is studied in detail in so far as the rights of the minor are modified by the statute. This useful exercise indicates clearly the preference given by the federal Act to bona fide purchasers of securities and the rather precarious position of the true owner in questions of conflicting claims. Viewed from a larger perspective, this study reveals an important trend in recent legislative enactments : where traditional rules tend to protect property rights (nemo dat...), contemporary legislations seem to favour unduly the security of commercial transactions.

scholarly journals Guilt as One of the Grounds for the Prohibition (Suspension) Activities on the Russian Civil Law

2021 ◽  
Vol 2 ◽  
pp. 55-62
Author(s):  
E.M. Senotrusova ◽  
◽  
Keyword(s):  
Russian Federation ◽  
Special Functions ◽  
Objective Assessment ◽  
Civil Law ◽  
Civil Code ◽  
Individual Characteristics ◽  
Point Of View ◽  
Roman Law ◽  
Private Law ◽  
The Russian Federation

The article considers the essence of the category of guilt as one of the grounds for prohibiting (suspending) activities under Russian civil law. The article analyzes the shortcomings ofthe legal definition of guilt stipulated in article 401 of the civil code of the Russian Federation due to the mixing of objectivist and subjectivist concepts. Based on the analysis of the judicial practice of the application of Article 1065 of the Civil Code of the Russian Federation, a conclusion was made about the unsatisfactory state of law enforcement in establishing guilt in a person’s behavior. Monuments of Roman law are studied for the purpose of revealing the category of guilt. A brief overview of approaches to the concept of guilt in the civil legislation of a number of foreign countries and in the Model rules of European Private Law is given. The positions of the Supreme Court of Austria and the countries of the Anglo-Saxon legal family are given on this issue. The article briefly covers the integral theory developed By E. A. Kramer for the objective assessment of individuals ‘ discretion in conducting any activity that may entail adverse consequences for third parties. In connection with the special functions and purpose of the Institute of responsibility in private law and institute for the prevention of harm, the conclusion is defended that it is unacceptable to directly borrow the category of guilt from criminal law to civil law. The article substantiates the need to apply the objectivist concept of guilt in civil law as a deviation from the standard of behavior of an ordinary reasonable participant in the turnover, taking into account individual characteristics of a person. Taking into account the provisions of the current civil legislation on liability, a conclusion was made about the possibility of applying a simplified scheme of forms and types of guilt, including when deciding on the establishment of an injunction. The question of the ratio of guilt, considered from the point of view of the objectivist approach, and wrongfulness is touched upon.

SUBORDINATION AGREEMENT IN THE SYSTEM OF PRIVATE LAW

2021 ◽  
Vol 21 (3) ◽  
pp. 7-107
Author(s):  
M.D. TYAZHBIN
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
Law Reform ◽  
Private Law ◽  
Legal Nature ◽  
The Russian Federation

The article is dedicated to the category of subordination agreements. Based on the concept of conflict of rights in personam, the author makes an attempt to integrate this category into the system of private law, to determine the legal nature of subordination, and from these positions to assess the effectiveness of Art. 309.1 of the Civil Code of the Russian Federation, implemented in the course of the civil law reform.

Dispositive Model of Active Legal Capacity of People with Mental Disabilities in France and Quebec in the Context of the Russian Civil Code Reform (Part II)

2021 ◽  
pp. 80-87
Author(s):  
Terdi E. S. ◽  
◽  
Skrynnik I. K. ◽  
Keyword(s):  
Mental Disorder ◽  
Legal Protection ◽  
Legal Regulation ◽  
Civil Code ◽  
Point Of View ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Legal Norms ◽  
Leading Role ◽  
Legal Method

The article is devoted to the problem of the inconsistency of the Russian imperative model of active legal capacity, according to which the content of active legal capacity in case of its restriction due to mental disability of a person is prescribed by the law, to the Convention on the Rights of Persons with Disabilities ratified by Russia in 2012. The purpose of the paper is to demonstrate the shortcomings of the imperative model, the main of which is the lack of authority of the Russian court to individually determine the consequences of restriction of active legal capacity of a person due to mental disorder, taking in account degree of actual decrease of his cognitive and volitional abilities. This purpose is achieved by the consistent implementation of the following tasks. First of all, characteristic of the Russian imperative model of active legal capacity is given. Secondly, the French dispositive model of legal capacity is described. In this model the forms of legal protection, but not the categories of active legal capacity, incapacitation and restricted active legal capacity are the backbone concepts for the legal regulation of this group of relationship. It is noted that under the influence of the Convention on the Rights of Persons with Disabilities the more progressive, from the point of view of international law, forms of this model are stipulated in many foreign countries. Thirdly, the evolved form of the French dispositive model of active legal capacity, implemented in the Bill 18 «An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons», that was adopted by the National Assembly of Quebec in 2 June 2020, is analyzed. The main advantage of the latter is that the court, establishing the form of protection, is not bound by the legal norms that imperatively determine the content of active legal capacity of a person with mental disorder. The court is able, based on the cognitive and volitional abilities of particular person, to individually determine which acts person can perform by himself, alone or with the assistance of the tutor, and which one can be performed by the tutor only. The objectives of the study determine the leading role of the comparative legal method in its implementation. The provided research makes possible to assess the perspectives of borrowing of French or Quebec dispositive models of active legal capacity of people with mental disorder by the Russian legislator.

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