scholarly journals PECULIARITIES OF A PERSON'S CIVIL LIABILITY IN CASE OF EXERCISING THE RIGHT TO SELF-DEFENSE AND IN EXTREME NECESSITY

2021 ◽  
pp. 21-26
Author(s):  
I. Dzera
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Legal Regulation ◽  
Civil Code ◽  
Self Defense ◽  
Legal Nature ◽  
Compensation For Damage ◽  
Contractual Obligations ◽  
The Right ◽  
Commission Agent

Civil law provides both general rules that provide the grounds and procedure for liability for damage to a person, and special grounds for bringing or release from such liability in the event that the person causing such damage carried them out in self-defense or extreme necessity. Therefore, it is important to clarify the specifics of civil liability of a person in the exercise of his right to self-defense and in a state of extreme necessity. The grounds and procedure for bringing a person to such responsibility are determined, the peculiarities of the subject composition are determined. A thorough study of the Civil Code of Ukraine to determine their compliance with the general principles of civil law and the need for appropriate changes and clarifications for proper legal regulation of grounds for liability and release from liability for damage caused by a person exercising his right to self-defense and in a state of extreme necessity . The development of civil legislation of Ukraine in terms of compensation for damage caused by a person in the exercise of his right to self-defense, in conditions of extreme necessity and necessary defense in order to identify gaps and contradictions and formulate proposals for recoding the Civil Code of Ukraine. The purpose of the study is to define the concept of self-defense and extreme necessity, as well as to determine the grounds and conditions of civil liability for damage caused by a person exercising his right to self-defense or in extreme necessity, as well as sanctions applied to a person. The object of the study is the legal relationship arising from the prosecution of a person who caused harm in a state of extreme necessity or in the exercise of his right to self-defense and the application of civil sanctions. To achieve this goal, the following methods were used: formal-legal to study the legal regulation of legal relations; analytical for the correct interpretation of the scope of legal content; system-structural to determine the legal nature of the studied legal relations; historical and legal for the analysis of the development of civil legislation; dialectical to identify contradictions in legal relations and legal regulation. It is noted that in determining the content of self-defense committed by a person, it is necessary to take into account the legal nature of legal relations, as the performance of self-defense actions of a legal nature are mainly contractual obligations, and self-defense actual actions – noncontractual obligations, including tort obligations. The prevailing position in civil science is that self-defense is a way of protecting civil rights and a non-jurisdictional form of realization of this protection. It is noted that self-defense can be carried out in the form of both factual and legal actions, which can be both legal and illegal. Manifestations of self-defense are measures of operational influence, which in science are called operational sanctions. They are designed to prevent specific offenses, usually in contractual obligations and can be applied by a unilaterally authorized person out of court. Varieties of such sanctions are unilateral withdrawal from the contract; unilateral termination of the obligation; actions of the commission agent, aimed at unilateral retention of the thing to be transferred to the principal, in order to ensure their claims under the contract; actions of the commission agent aimed at unilateral deduction of the amounts due to him under the contract, received by him for the principal. Illegal active and passive actions of self-defense can lead to harm to the life, health of the offender, his property, which can lead to prosecution of the person for the damage. The analysis of the norm of Art. 1169 of the CCU, which regulates liability for damage caused by a person in the exercise of his right to self-defense. It is noted that the norm of Part 2 of Art. 1169 of the Civil Code is formulated unsuccessfully, because it does not contain information about "another person" who was harmed by a person who carried out self-defense against unlawful encroachments, and therefore it is not clear who may be obliged to compensate him. In this regard, it is proposed to make appropriate changes to the norm under study in terms of clarifying the person who may be obliged to compensate, introducing the term "causer" of the damage along with the term in the article "person who committed an illegal act". As a general rule, damage caused by a person in cases of exercising his right to self-defense is reimbursed only if the limits of necessary defense are exceeded. In this case, the right to apply a sanction for damages has a person whose actions have become the basis for the application of self-defense. Damage caused to third parties in ways not prohibited by law and which do not contradict the moral principles of society, is compensated by the person who committed the illegal act, and in other cases – by the person who carried out self-defense. That is, in the first case, the third party has the right to apply sanctions for recovery. Keywords: sanctions, liability, protection, compensation for damage, tort, operational measures.

scholarly journals Legal nature of the requirements of the banking legislation of Ukraine to ensure credit operations of banks

2021 ◽  
pp. 297-305
Author(s):  
Anatoliy Babaskin
Keyword(s):  
Credit Card ◽  
Civil Law ◽  
Legal Regulation ◽  
Functional Method ◽  
Point Of View ◽  
The European Union ◽  
Scientific Publications ◽  
Economic Point ◽  
Legal Nature ◽  
The Right

Іintroduction. Despite the fact that a significant number of scientific publications by well-known Ukrainian authors are devoted to the issues of legal regulation of credit obligations, at the same time separate studies of banking legislation requirements on "acceptability of collateral" have not been conducted in Ukrainian civil science in recent years. This, taking into account the gradual alignment of banking legislation of Ukraine with the standards of Basel III, and Directive 2002/47 / EC of the European Parliament and of the Council of 6 June 2002 on financial collateral mechanisms, necessitates such scientific research. The aim of the article. On the basis of the analysis of the legislation of Ukraine, the legislation of the European Union, scientific advances in the sphere of civil law and banking legislation, in the context of the analysis of the banking legislation of Ukraine, it is safe for creditors. In order to achieve this goal: 1. Conduct an analysis of civil and legal species for the protection of crops for the subject of іх possible delivery to “acceptable safety” and vrahuvannya banks when opening a credit card. 2. Significantly "quasi-security", as viewed by the banking legislation in the form of "acceptable security" for credit cards. 3. Zdіysniti analysis of the approaches to the legislation of the EU in the field of protection from credit denominations. Results. The methodological basis of the study is general scientific and special legal methods of scientific knowledge. In particular, the dialectical method, the method of analysis and synthesis, the comparative law method, the functional method, the modeling method, etc. Conclusions. First, the banking legislation does not consider as "acceptable collateral" such types of collateral as penalty, surety, deposit, retention. Secondly, the banking legislation considers as "acceptable collateral" not only those specified in Part 1 of Art. 546 of the Civil Code of Ukraine types of security for performance of obligations (pledge, right of trust ownership, guarantee), and other types of security for performance of obligations provided by law or contract (reserve letter of credit, performing the function of financial guarantee, guarantees of public entities, guarantee payment), but also contractual constructions which do not concern types of maintenance of performance of obligations (repo agreements). Thus, the banking legislation considers collateral in credit operations from the economic point of view, according to which "acceptable collateral" is only such liquid collateral that guarantees the rapid recovery of the property of the creditor bank, which suffered damage due to default or improper performance of the counterparty loan obligation, as well as "quasi-collateral", if such is referred by banking legislation to "acceptable collateral". Third, the existence of rules in the banking legislation on the acceptability of collateral in no way affects the right of banks to use any type of collateral provided by law or contract, if the application of such is possible in credit relations, taking into account the legal nature of the relevant types. software. Fourth, the set of regulations of the National Bank of Ukraine on the acceptability of collateral can be considered as an institution of banking law, which includes as rules of civil law governing the types of collateral, other rules of contract law governing other "quasi-collateral" contractual constructions, as well as public-law special norms of banking legislation, which establish additional regulatory requirements for banks to ensure credit operations and calculate credit risk.

scholarly journals Termination of Contractual Obligations in the Civil Code of Ukraine

2019 ◽  
Vol 8 ◽  
pp. 123-142
Author(s):  
Anatoliy Kostruba
Keyword(s):  
Self Regulation ◽  
Legal Framework ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Effect ◽  
Legal Model ◽  
Contractual Obligations ◽  
Legal Fact ◽  
The Right ◽  
Legal Subjects

A contract is a means for self-organization and self-regulation of civil and legal relations between parties in the Civil Code of Ukraine. A distinguishing feature of a contractual obligation is the dependence of the beginning of a legal fact in its structure on the lawful will of a party (act) to a legal transaction or objective circumstance of reality (events). The objective of the paper is to study the mechanism of termination of obligations by determining the legal framework for its functioning. The specificity of legal facts of normative-compensating nature was determined by the use of normative and protective functions in the legislation. Civil property and its legal regulation of relations are aimed at achieving the legal result determined by their participants at the stage of the exercise of rights. The study reveals that the compensating effect of the legal termination mechanism is expressed at the stage of legal termination, which involves compensating the inability to correct a defect of a legal fact that hinders the achievement of a goal of legal regulation when exercising the right to the start of an anticipated legal effect according to a legal model of legal subjects accepted by the participants of the civil relations. The author dwells upon one of the forms of termination of contractual obligations, more specifically, on the beginning of cancellation and on the deferred status of a legal transaction.

scholarly journals Problems of the definition and characteristics of the contractual basis for the limitation and encumbrance of ownership of real estate in Ukraine

2021 ◽  
pp. 341-348
Author(s):  
Inna Sevryukova
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Civil Law ◽  
Legal Regulation ◽  
Real Property ◽  
Legal Literature ◽  
Legal Nature ◽  
Characteristic Features ◽  
State Registration ◽  
The Right

Introduction. The legal description of the contractual grounds for restrictions and encumbrances on the right of ownership of real estate can be provided only after a comprehensive study of the common features of the contractual structures, which establish the relevant rights and obligations of the parties. The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. It should also be emphasized that each subjective right has its limits of exercise, including the subjective right of ownership, as well as other real property rights. Of course, the nature of such restrictions must be different and depend on the content and nature of the restricted right, its object and the grounds for the restrictions. That is, restrictions on property rights and other property rights cannot be the same. Restrictions on property rights are established in the interests of society and arise by law, as well as in the interests of individuals (on the basis of law, contract, court decision), and restrictions on other property rights are primarily due to protection of the property from which they originate and the legitimate interests of the owner. In our opinion, the category of real contracts should include those types of contracts relating to real estate, including contracts of encumbrance of property rights on the basis of which the rights subject to state registration arise. Purpose and objectives of the study The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. Therefore, we can argue for the existence of a certain generalizing type of contract, the features of which are inherent in all its subspecies, in particular, contracts for the establishment of easements, superficies, emphyteusis, mortgage agreement. Such an agreement in the legal literature is called by some authors as a real contract. However, issues concerning its legal nature, place in the system of civil law contracts remain debatable. Research methods. The research carried out in the article is based on the assessment of generally accepted approaches to defining the characteristic features of problematic issues of contractual grounds for the emergence of restrictions and encumbrances of property rights to real estate. It should be emphasized that these issues are controversial due to the lack of clear legislative regulation, which leads to imperfect legal regulation and violations of the rights of participants in property turnover. Research conclusions. As a result of the study, the idea is given that in the current legislation of Ukraine due to the lack of a clear concept of the relationship between the category of "encumbrance" and "restriction" of property rights, as well as the uncertainty of property rights, some questions remain about the classification of certain rights accordingly, about the types of material contract, this issue is debatable and needs further study. It is possible to make about polystructurality of the real contract that causes division of this type of the civil law contract into kinds and subspecies. In our opinion, such a division depends on the legal nature and scope of the relevant types of restrictions and encumbrances on the right of ownership of real estate, which are proposed by current civil law.

Theoretical problems of the legal nature of the loan agreement and its correlation with the loan agreement

2021 ◽  
Vol 39 (6) ◽  
Author(s):  
Olga Tur ◽  
Marta Kravchyk ◽  
Ivanna Polonka ◽  
Oksana Levytska ◽  
Mariia Pshoniak
Keyword(s):  
European Integration ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Judicial Practice ◽  
Legal Nature ◽  
Comprehensive Study

A money loan agreement is an independent type of civil law contract. It is described by one-sided obligations of the parties, reality, dispositive payment, and dispositive urgency. The paper provides a comprehensive study of the loan agreement, in particular the money loan agreement, solving theoretical and practical problems of legal regulation of the institution of loan obligations. The analysis of judicial practice and civil law legislation of Ukraine regulating the institution of credit is carried out. The genesis of the concept and features of the development of loan relations and the money loan agreement, its correlation with the loan agreement, are clarified. Based on the conducted research, theoretical conclusions are formulated and proposals are developed to improve the legal regulation of relations arising based on a loan agreement. It was stated that since the adoption of the European integration course by Ukraine, relations are increasingly developing, based on which loan agreements and credit agreements in particular are concluded. To overcome differences in their application, it is necessary to provide the loan agreement with the Civil Code of Ukraine with positive legal regulation so as not to apply the reference rules that relate to the loan agreement.

THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY: THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA

2021 ◽  
Vol 21 (2) ◽  
pp. 199-216
Author(s):  
Yu.V. BAYGUSHEVA
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Third Party ◽  
Tort Liability ◽  
Legal Nature ◽  
Heated Debate ◽  
The Russian Federation ◽  
The 19Th Century

The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.

scholarly journals Contractual Penalty and the Right to Payment for Delays Caused by Force Majeure in Czech Civil Law under the New Civil Code

2015 ◽  
Vol 6 (4) ◽  
pp. 259-269 ◽  
Author(s):  
Martin Janku
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Mutual Relationship ◽  
Force Majeure ◽  
Recommendations For Practice ◽  
Contracting Process ◽  
Contractual Obligations ◽  
The Right

Abstract In the context of the conclusion of contracts between entrepreneurs under the Czech Civil Code, it is a relatively common arrangement that the parties disclaim any and all liability for damage arising from non-compliance with contractual obligations, if they can prove that this failure was due to an obstacle independent of their will. This circumstance excluding liability for the damage is called force majeure by the theory. In many countries this circumstance is ruled upon directly by the legislation (höhere Gewalt, vis major). The Czech regulations represented by the new Civil Code of 2012 (CivC), however, contains only a framework provision that mentions discharging reasons. The paper deals with the – rather disputable – issue that the force majeure does not affect the obligation to pay a contractual penalty under the new rules of the CivC. It should be therefore reflected in the arrangements for contractual penalties inter partes. To this effect the paper analyses the concepts of contractual penalties and force majeure in civil law legislation. Afterwards it compares their mutual relationship and impact on the obligations of the Contracting Parties. Finally, it draws recommendations for practice from the perspective of the contracting process.

scholarly journals Child as a Participant in Obligatory Legal Relations

2021 ◽  
pp. 64-72
Author(s):  
Iryna SERDECHNA
Keyword(s):  
Property Rights ◽  
Characteristic Feature ◽  
Legal Status ◽  
Civil Law ◽  
Civil Code ◽  
Unborn Child ◽  
Legal Relationship ◽  
Contractual Obligations ◽  
The Right ◽  
A Minor

It is determined that, in accordance with the provisions of civil law, the obligation is a legal relationship in which one party (debtor) is obliged to perform a certain act in favour of the second party (creditor), that is, to perform an act determined by contract or law or to refrain from a certain action, and the creditor has the right to require the debtor to fulfil its duty. The presence of a certain number of persons participating in the obligation of the entities of the obligation (creditor and debtor) is a characteristic feature of the binding legal relationship. Scientific approaches and approaches outstanding in the normative legal acts on understanding the concept of «child» have been analyzed. It is proved that in the Civil Code of Ukraine the concept of «child» is used only in some articles (part 2 of article 25, part 1 of article 35, part 3 of article 72, part 2 of article 285, part 3 of article 295, part 1.4 of article 1200 part 1 of article 1242, etc.) at the same time this category is used regarding, that is, when determining the question regarding the legal status of a conceived and unborn child, regarding the personal non-property rights of individuals, regarding the issue of compensation for harm, hereditary legal relations, etc. It is justified that civil law does not identify the concept of «child» with a person before the age of 18. The peculiarities of the child’s participation in binding legal relations, in particular in contractual and non-contractual relations, were studied. The characteristics of the child’s participation in contractual binding legal relations are defined: 1. The child is subject to contractual obligations until he or she reaches the age of 14, as he or she has the right to engage in petty domestic transactions; 2. The child may be subject to contractual obligations at the age of 14, and the scope and capacity of the child is increased; 3. The child has the same rights as other subjects of binding legal relations. 4. Obligatory legal relations involving the child arise in relation to property and personal non-property benefits; 5. Legal facts are the basis for legal relations involving the child. The legislative approach is disclosed regarding the peculiarities of the participation of the child, namely a minor and juvenile person, in non-contractual obligations, in particular in obligations for compensation for harm.

scholarly journals Problems of legal regulation of delay interest as a type of civil liability for breach of monetary obligations in Ukraine

2020 ◽  
pp. 296-300
Author(s):  
Yaryna Fomenko
Keyword(s):  
Law Enforcement ◽  
Theoretical Study ◽  
National Level ◽  
Civil Liability ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Provisions ◽  
Legal Nature ◽  
Definition Of ◽  
Legal Concepts

This article is devoted to the theoretical study of the legal regulation of delay interest as a type of civil liability for breach of mo -ne tary obligations under Ukrainian law. It is the contractual sanctions, that are one of the most important parts of the contract as theyinduce the parties to comply with their obligations. In addition, sanctions are of a dual legal nature – they are both means of ensuringthe performance of the obligations and a measure of liability for a dishonest contractor. Liability for breach of monetary obligations ischaracterized by conflicting legal provisions and ambiguous court practice. For example, under the Civil Code of Ukraine delay interestand a penalty are regarded as types of forfeit, while in the Economic Code of Ukraine forfeit is treated as a separate type of sanction.However, in the absence of separate definitions of each sanction in the Economic Code of Ukraine, it is unclear as to the meaningintended by the legislator in particular in the concept of “forfeit”. This situation complicates the understanding of legal concepts andrequires a regulatory specification of such provisions in legislative acts. Based on the theoretical analysis, it is necessary to develop scientificallygrounded proposals and recommendations for improvement of law making and law enforcement activities. The legal characteristicsand peculiarities of the delay interest as a type of civil liability are investigated in the article.As a result of a comparative analysis of the regulations in the Civil Code of Ukraine and the Economic Code of Ukraine, the followingdifferences and contradictions were summarized and noted: a) different approach to the definition of “delay interest”; b) unequalapproach to the question of types of obligations to which delay interest can be applied; c) differences in the calculating of delay interestfor breach of a monetary obligation procedures.In order to effectively resolve disputes, the author notes the need to implement unification of the Civil Code of Ukraine with theEconomic Code of Ukraine at the national level and to establish clear rules for the application of delay interest for non-compliance withmonetary obligations.

scholarly journals Tiesību vienpusēji atkāpties no līguma realizēšanas problemātika

2015 ◽  
Vol 1 (1) ◽  
pp. 42-46
Author(s):  
Jānis Meija
Keyword(s):  
Basic Principle ◽  
Civil Law ◽  
Legal Regulation ◽  
Contract Law ◽  
Civil Code ◽  
Number Of Publications ◽  
The Right ◽  
Insight Into

Raksta uzdevums ir sniegt ieskatu tiesību vienpusēji atkāpties no līguma realizēšanas problemātikā, kas pastāv, jo Latvijas civiltiesībās līgumu pildīšanas (pacta sunt servanda) civiltiesību pamatprincipam ir visai maz izņēmumu. Rakstā izcelta problēmas praktiskā puse, kas saistās ar pārmērīgu zaudējumu, nevienlīdzīgām pušu attiecībām vai apstākļu maiņu. Rakstā analizēts pozitīvs piemērs – patērētāju kreditēšanas normatīvais regulējums. Problēmas novitāti apliecina līgumtiesību starptautiskās unifikācijas tendences, un par tām pieaug publikāciju skaits. Secinot, ka Civillikumā paplašināmas līdzēju tiesības vienpusēji atkāpties no līguma, autors piedāvā attiecīgu likumu grozījumu redakciju. The aim of the article is to provide an insight into problems of the right to withdraw from a contract unilaterally that exist because the Civil Law of Latvia has very few exceptions to the basic principle of contract filling (pacta sunt servanda). The article highlights the practical side of the problem due to excessive loss, unequal relationship between the parties or a change of circumstances. Legal regulation of consumer creditation is analyzed in the article as a positive example. The international unification trends of the Contract Law and the growing number of publications confirm the novelty of the problem. Concluding that the rights of parties to withdraw from a contract unilaterally should be extended in the Civil Code, the author proposes amendments to the relevant version of the laws.

scholarly journals Sale Agreement With Redemption Right

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Slobodan Stanišić
Keyword(s):  
Legal Regulation ◽  
Contract Law ◽  
Civil Code ◽  
Basic Type ◽  
Public Order ◽  
Sales Contracts ◽  
Legal Nature ◽  
The Republic ◽  
Living Organisms ◽  
The Right

Although the legal regulation of this contract as a special named modality of the basic type of contract of sale was missing in our positive legislation, its significance for today’s modern legal transactions is undoubted. Sales contracts with the right of redemption are still concluded today and are an integral part of the living organisms of our contractual contract law. This was also noticed by the Commission for the Drafting of the Civil Code of the Republic of Serbia, which envisaged the legal regulation of this important legal work in the Pre-Draft of the new Civil Code. In this way, the intention of the Commission to finally fill the legal gap that still exists in the Serbian contract law regarding the legal regulation of this legal transaction as a special named contract was expressed. Sales contracts with the right of redemption are valid legal transactions that still produce legal effects, under the condition that they are concluded in accordance with the general principles of our contract law, within the limits prescribed by positive laws and regulations and are not contrary to public order and good customs. In this paper, the author looks at the origin and historical development of this modality of the contract of sale, the concept, features and subject of the contract, including the rights and obligations of the parties, presented significant understandings of legal science on the legal nature and duration of contracts of sale and pointed out the need for its legal regulation as a named contract.

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