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.

Public/Private

2020 ◽  
pp. 466-480
Author(s):  
Jean-Bernard Auby
Keyword(s):  
Essential Feature ◽  
Common Law ◽  
Public Domain ◽  
Public Law ◽  
Roman Law ◽  
Private Sphere ◽  
Private Law ◽  
The Public ◽  
Private And Public ◽  
The Relationship

This chapter examines the distinction between public law and private law. It stresses the importance of being aware of this difference between the public/private and public law/private law dichotomies. The public–private divide is universal even if, from one society to another, it can be conceived differently in certain ways. All human communities have an idea about the relationship between the private sphere and the public domain. By contrast, the distinction between public law and private law is not universal. It may be ignored, rejected, or confined to a very limited sphere of operation as, traditionally, in common law systems. Conversely, the public law/private law distinction may be understood as an essential feature of the juridical world, as was the approach of Roman law, inherited by the continental legal systems.

Punitive Damages: Reorienting the Debate in Civil Law Systems

2019 ◽  
Vol 10 (1) ◽  
pp. 63-81
Author(s):  
María Guadalupe Martínez Alles
Keyword(s):  
Latin American ◽  
Civil Law ◽  
Public Law ◽  
Punitive Damages ◽  
Private Law ◽  
Clear Cut ◽  
American Experience ◽  
Private And Public ◽  
Anglo American ◽  
Country Specific

AbstractScholarly debates in a number of Latin American and European countries have recently focused on the legal institution of punitive damages. These debates have been primarily influenced by the Anglo-American experience with the institution. The dominance of an outcome-driven, interpretive approach to an inherently complex and contradictory practice in the prevailing Anglo-American scholarship on punitive damages, however, has seriously affected and likely distorted the comparative and normative scholarly debates over the introduction of the institution in countries that follow the civil law tradition. In this article, I argue that, in order to participate more meaningfully in the punitive damages debate, civil law scholars should, on one hand, refrain from attempts to improve the understanding of the Anglo-American practice while offering country-specific assessments of the authors’ own legal system’s (in)compatibilities with the institution; and, on the other hand, actively engage in thorough discussions regarding the fundamental theoretical grounding of the place of punishment in modern private law. The novelty of this scholarly approach will require private law scholars to acknowledge both the punitive elements currently hidden yet nonetheless patent in domestic private law practices of awarding damages and the constraining effect of the pervasively proclaimed yet easily disputable clear-cut line between private and public law.

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.

Preventive Duties under Private and Public Law scilicet spei permultum sed rei paulum

2020 ◽  
Vol 2 (103) ◽  
pp. 51-71
Author(s):  
Dariusz Fuchs
Keyword(s):  
Contract Law ◽  
Legal Aspects ◽  
Public Law ◽  
Civil Code ◽  
Insurance Contract ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
European Insurance ◽  
The Relationship

The article aims at discussing preventive obligations incumbent on the insurer and other entities of the insurance relationship, in particular on the policyholder. The analysis takes into account comparative legal aspects, and therefore refers to the Principles of European Insurance Contract Law (PEICL). The author emphasizes the evolution of the provision of Article 826 of the Civil Code, which has changed his views on the scope of the preventive obligation under insurance contract. He points out the possible differences of interpretation as to the scope of the prevention as well as the issue of the insurer's reimbursement of costs due to its implementation by the policyholder. What is more, the relationship between public and private law standards has been presented, with a particular focus on Article 826 of the Civil Code. Finally, de lege ferenda conclusions have been presented.

scholarly journals The Features of the Content and Subject Composition of Settlement Agreements in Cases of Invalidity of Transactions

2020 ◽  
Vol 17 (3) ◽  
pp. 310-319
Author(s):  
Valeriya Goncharova
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
Public Law ◽  
Civil Code ◽  
Point Of View ◽  
Relevant Category ◽  
Settlement Agreements ◽  
The Subject ◽  
The Russian Federation

Settlement agreements in civil and arbitration proceedings are one of the most convenient and effective ways to resolve disputes arising between participants in civil legal relations. At the same time, within the framework of some civil disputes, the content of settlement agreements has significant specificity, and sometimes – due to the peculiarities of the subject composition and the merits of the case – they cannot be applied at all for the purpose of reconciling the parties. An example of such disputes are cases related to the recognition of the transaction as invalid and the application of the consequences of the invalidity of the transaction, the legal regulation of which is unique. The economic reasons for the invalidity of transactions predetermine the peculiarities of the content of settlement agreements in the relevant category of cases, limiting it exclusively to the procedure for fulfilling restorative obligations and obligations to compensate for losses. This circumstance is due to the fact that, from the point of view of the dynamics of civil legal relations, an invalid transaction introduces uncertainty in the ownership of property and the distribution of rights and obligations of the participants in legal relations, which can be eliminated only by restoring the situation that existed before the conclusion and execution of the transaction with a defect. The current civil law regulation in this part (Article 4311 of the Civil Code of the Russian Federation), which allows the conclusion of analogues of amicable agreements in cases of invalidity of transactions involving other, in addition to restitution, the consequences of the invalidity of transactions, in this regard, cannot be recognized as satisfactory. Contestation of the transaction by “another person specified in the law” (Article 166 of the Civil Code of the Russian Federation), as well as in the interests of third parties by specially authorized entities (procedural plaintiffs), the possibility of participation in a completed and executed transaction of public law entities determine the raising of questions about the possibility of concluding amicable agreements by these entities. It is noted that these subjects, as follows from the analysis of domestic civil, civil procedural, administrative and family legislation, being interested in resolving the case on recognizing the transaction as invalid and on the application of the consequences of its invalidity, do not participate in its execution, and therefore cannot determine the procedure for the fulfillment of obligations arising from it.

scholarly journals Fragments of Europeanization of Georgian Property Law and Law of Obligations in the Context of Reception of German Law

2019 ◽  
Vol 9 (1) ◽  
pp. 140-156
Author(s):  
Tamar Zarandia ◽  
Natia Chitashvili
Keyword(s):  
Conceptual Framework ◽  
Civil Law ◽  
German Law ◽  
Civil Code ◽  
Property Law ◽  
Private Law ◽  
Approximation Process ◽  
Research Article ◽  
The Law ◽  
Legal Harmonization

AbstractThe present research article focuses on the description of the dynamics of Europeanization of two fundamental concepts of Georgian property law and the law of obligations—acquisition of a thing from a non-authorized alienator and the unified concept of breach of obligation—in the context of reception of German law. At the historical stage of formation of the Civil Code of Georgia (CCG), focusing on the conceptual framework of German civil law, the German law, in its turn, was an integral part of the Europeanization process. Hence, Europeanization influenced the development of Georgian civil law through the reception of German law. When referring to the reception of German law in this article we simultaneously mean the process of Europeanization of Georgian civil law, which penetrated not directly but rather through the reception of European (in this case, German) codification. The ongoing reform of Georgian civil law inevitably requires its legal harmonization with EU codifications in the context of central paradigms of acquisition of a thing from a non-authorized alienator and the unified concept of breach of obligation. Analysis of the dynamics and often contradictory root of the Europeanization of Georgian private law will enable scholars and legislators conduct legal approximation process on the basis of research-based recommendations.

scholarly journals PRIVATE AND PUBLIC IN LAW: FROM THE TRADITIONS OF WESTERN JURISPRUDENCE TO THE SEARCH OF CONCEPTUAL FOUNDATIONS OF LAW

2018 ◽  
Vol 6 (3) ◽  
pp. 1-5
Author(s):  
Анна Чувальникова ◽  
Anna Chuval'nikova
Keyword(s):  
Practical Importance ◽  
Legal Regulation ◽  
Public Law ◽  
Private Law ◽  
Legal Knowledge ◽  
Theoretical Significance ◽  
Private And Public ◽  
Conceptual Problems ◽  
Definition Of ◽  
Conceptual Foundations

The article analyzes the existing in western jurisprudence approach to the allocation of private and public law, its theoretical significance for the formation of a system of legal knowledge and practical importance for solving problems of state legal regulation. It is concluded that the distinction between private and public law is one of the conceptual problems for the understanding of law, the solution of which requires the definition of qualitative specificity of private law.

scholarly journals The Current State of Recodification Works of Slovak Private Law and Its Perspectives

2021 ◽  
Vol 2 (1) ◽  
pp. 83-92
Author(s):  
Denisa Dulaková Jakúbeková
Keyword(s):  
Slovak Republic ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Time Constraints ◽  
Private Law ◽  
The Public ◽  
Current State ◽  
Commercial Code ◽  
The Given

The article discusses the current state of the ongoing process of private law recodification in the Slovak Republic. Despite the efforts promised by every new government, to this day, none of them have achieved a recodification of civil law that would ultimately result in unambiguous treatment of, in particular, the so-called questions of values, nor have any of them seen through the creation of a codex, which has long been required. The need for recodification first became apparent even before the November 1989 Revolution. The focus of the expert public post-revolution was on filling the legal vacuum that came about through the abolition of the Economic Code and the Code of International Trade and on substituting them with a new and equivalent legal regulation. Due to time constraints and the urgent need for a solution to the given situation, the country failed to adopt a single universal regulation for private law; instead, the so-called major amendment of the previous Civil Code was adopted. This state has since prevailed; thus, Slovakia’s legal system is still subject to a Civil Code from 1964, amended on several occasions, as well as the Commercial Code from 1991. This is despite the numerous attempts to recodify private law, the last attempt having been introduced to the public at the end of 2018. The form of this reform was, however, surprising. Slovakia saw a change in governments in 2020, and the new government has, to date, declared other priorities in the domain of justice. It is, therefore, difficult to say whether the new government will adopt the ambition to recodify private law and, if so, to what extent it will succeed in completing this goal.

scholarly journals Remarks Regarding the Influence of European Legislation upon Codification of Civil Law

2017 ◽  
Vol 71 (0) ◽  
pp. 0-0
Author(s):  
Jan Rudnicki
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Private Law ◽  
European Level ◽  
European Legislation ◽  
Polish Experience ◽  
The Creation ◽  
The Impact

This paper emphasises that Europeanisation of law contributes greatly to the phenomenon of decodification. The impact of European legislation on the position of the civil code as the main source of private law is clearly visible in the case of directly effective regulations. Also, implementation of directives can (and often does) lead to the creation of legislation regulating civil law matters, yet separate from the civil code. The Polish experience with implementation of directives concerning consumers protection makes for a good example. Regulation of timeshare contracts completely outside the civil code is – according to the Polish doctrine – a result of difficulties with integrating this particular provision into the codification of private law. If such difficulties are inevitable, so is also progressing decodification of civil law due to its advancing harmonization on the European level.

scholarly journals Typological models of legal regulation of matrimonial relations through the prism of comparative approach in private law

2021 ◽  
pp. 114-125
Author(s):  
Evgeniya Pavlovna Parii-Sergeenko
Keyword(s):  
Legal System ◽  
Family Law ◽  
Legal Regulation ◽  
Public Law ◽  
Civil Code ◽  
Comparative Approach ◽  
Private Law ◽  
Legal Analysis ◽  
Exclusive Jurisdiction ◽  
Legal Criterion

This article outlines a number of typological models of legal regulation of matrimonial relations using the method of comparative-legal analysis. Leaning on the formal-legal approach, analysis is conducted on certain typological models. First and foremost, the author explores the model that is based on inclusion of the norms of family law in the Civil Code. It features two basic modifications that take roots in the reference European codifications of civil law: French (institutional) and German (pandect). Another typological model under review relies on coexistence of the two separate codes within the national legal system: civil and family. The typological distinctness characterizes the model that is based on inclusion of the norms of special statutes dedicated to family law in the Single Civil Code (for example, PRC). The development of family law may take the path of adoption of separate legislative acts (UK, USA). In some instances, federative nature of the country may also affect the development of the system of sources of family law. The countries with pluralistic legal system, either have exclusive jurisdiction over matters of family law (for example, Israel), or stimulate the processes of its modernization through adoption of a special law (for example, India). The author believes that the formal-legal criterion of typology should be correlated with the substantive aspect of the matter. From this perspective, the author highlight the two trends in regulation of matrimonial relations: the first is associated with strengthening of public law principles, while the second is associated with private law principles. The typological model depends on the dynamics of their ratio.

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