scholarly journals Wynagrodzenie współwłaściciela z tytułu wyłącznego korzystania z rzeczy wspólnej przez innego współwłaściciela i jego domownika. Glosa do postanowienia Sądu Najwyższego z dnia 11 stycznia 2018 r. (III CSK 349/16)

2020 ◽  
Vol 29 (3) ◽  
pp. 217
Author(s):  
Magdalena Deneka
Keyword(s):  
Civil Law ◽  
Household Member ◽  
Fractional Ownership ◽  
Joint Property

<p>The findings presented in the commentary aim at assessing the legitimacy of the Supreme Court’s view expressed in the decision of 11 January 2018 (III CSK 349/16), according to which the co-owner is obliged towards other co-owners excluded from holding and using the item being the object of fractional ownership to pay the compensation for the use of this item by his household member. The discussion covers the concept and civil-law status of the household member and the admissibility of accepting the household member by the co-owner of a property owned as a fractional ownership. The problems of the co-owner’s liability for the behaviour of the household member and the liability of the household member for his/her own behaviour towards the co-owners deprived of the use of the joint property were also discussed.</p>

scholarly journals The Division of Jointly Acquired Property of Deceased Spouses in the Event of the Death of One of Them: The Legal Regulation and Law Enforcement Practice

Legal Concept ◽  
2021 ◽  
pp. 105-112
Author(s):  
Yanina Kail ◽  
◽  
Victoria Usanova ◽  
Keyword(s):  
Law Enforcement ◽  
Property Rights ◽  
Legal System ◽  
Family Law ◽  
Current System ◽  
Civil Law ◽  
Legal Regulation ◽  
Scientific Cognition ◽  
Analysis And Synthesis ◽  
Joint Property

Introduction: the study of the division of jointly acquired property of spouses and inheritance of property has always been given special attention by the scientists and practitioners. Quite a lot of works are devoted to this area of legal relations. However, it is not so variable and depends on the intricacies of life that there are constantly many issues that require special research and improvement of the legal regulation. The division of jointly acquired property by the spouses at the dissolution of the marriage is regulated by the norms of family law, as well as civil law in the event of the death of one of the former spouses, who do not fully correspond to each other. In this regard, today citizens often face the problems of protecting their property rights. The purpose of the research: to reveal some aspects of the legal regulation and law enforcement practice of protecting the rights of former spouses in the division of jointly acquired property in the event of the death of one of them, and to offer suggestions to help improve the relevant rules. Methods: the methods of scientific cognition are applied together, among which the main ones are the formal-legal, system methods, analysis and synthesis. Results: it is proved that the current system of the legal regulation of division of joint property of the former spouses in the event of the death of one of them requires the improvement of the legal regulation, as laid down in the legislation, the protection of property rights is quite long and expensive, which leads to the futility of efforts. Conclusions: the law enforcement practice of protecting the property rights of former spouses in the division of jointly acquired property should be recognized as generally conforming to the established norms of law. However, the lack of the clear legal regulation of the criteria and conditions for the division of jointly acquired property in the event of opening of an inheritance after the former spouse before the expiration of the threeyear statute of limitations, leads to the situations where 2 spouses will claim the inheritance – the former and the present. This situation leads to costly conflicts that are resolved in court.

scholarly journals MARRIAGE AGREEMENT FOR THE JOINT ASSETS IN MIXED COUPLE MARRIAGE ACCORDING IN INDONESIA BOOK OF CIVIL LAW NUMBER 1 OF 1974 POST DECISION OF THE COURT OF CONSTITUTION NUMBER 69/PUU-XIII/2015

2021 ◽  
Vol 9 (1) ◽  
pp. 290-301
Author(s):  
Titik Triwulan Tutik
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Court Decision ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Mixed Marriage ◽  
Equal Rights ◽  
The Status ◽  
Joint Property ◽  
Husband And Wife

This study aims to analyze the position of the Marriage Agreement for Joint Treasures in Mixed Marriage from three sides of the law, namely Civil Law, Law Number 1 of 1974, and Constitutional Court Decree Number 69/PUU-XIII/2015. Hypothesis: Decision of the Constitutional Court Number 69/PUU-XIII/2015 in line with Islamic law that prioritizes equal rights and obligations between husband and wife in terms of ownership of assets in marriage. The method: used is normative (dogmatic) legal research, which is intended to find and formulate legal arguments, through analysis of the subject matter. While the approach used in this study there are 4 (four) types, namely: the statutory approach, comparative approach, conceptual approach, and case approach. The results: of the study show that the Constitutional Court Decision Number 69/PUU-XIII/2015 has provided a practical solution in overcoming the problems of a Marriage Agreement on Joint Assets: First, a marriage agreement can be made before, during and after the marriage is implemented. Second, ratification of a marriage agreement may be by a notary public, and effective from the date of the marriage agreement, and may be revoked. Third, marriage agreements are binding on third parties, especially related to the position of joint property in the marriage. This means that, Indonesian citizens have the right to joint property in a mixed marriage as long as the marriage agreement states that. The ruling is in line with Islamic law that prioritizes equal rights and obligations between husband and wife in terms of ownership of assets in a marriage. Conclusion: The legal consequences of the Constitutional Court Decision Number 69/PUU-XIII/2015 on the status of joint property made a marriage agreement after marriage which began since the marriage took place followed by the status of shared property becomes separate if both parties wish in the agreement, as well as assets to be obtained in the future remain the property of each party, without having to obtain a court decision regarding the separation of assets. This ruling is in accordance with Islamic law which prioritizes equal rights and obligations between husband and wife in terms of ownership of assets in marriage.

scholarly journals Team of Co-Owners as a Subject of the Right to Joint Shared Property

2019 ◽  
pp. 49-56
Author(s):  
A. V. Zarubin
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
General Rule ◽  
Point Of View ◽  
Actual Situation ◽  
The Subject ◽  
Shared Property ◽  
Definition Of ◽  
The Right ◽  
Joint Property

The author focuses on the similarity between relations of joint shared property and corporate relations, and proposes a “collective (a team of co-ownwers)” concept of joint property rights that is designed to solve the main problems of relations in question, including the definition of the subject of the right to joint shared property. From the point of view of the “collective” concept, the right to joint property is uniform. If the ownership of individual participants was extended to the whole thing, everyone’s will would be decisive in determining the fate of the thing, but the actual situation is not like this. In addition, possession is an external manifestation of ownership. At the same time, none of co-owners has the opportunity to appropriate the whole thing or even its part. He has only the right to claim possession. The general rule applies to the thing that is the object of the right to joint property. The right to joint property belongs to the team of co-owners as a non-entity community. There is no contradiction in the fact that the right belongs to an unauthorized association (a non-entity community), since the right can be attributed to the person whose will and domination is recognized by law, even if the law denies it as the subject (participant) of civil law relations.

scholarly journals Glosa do uchwały Sądu Najwyższego z dnia 19 października 2018 r. (III CZP 45/18). Surogacja składników majątków osobistych małżonków w ustroju wspólności ustawowej

2020 ◽  
Vol 29 (3) ◽  
pp. 267
Author(s):  
Mirosław Nazar
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
The Other ◽  
Personal Property ◽  
The Supreme Court ◽  
Marital Property ◽  
Joint Ownership ◽  
Joint Property ◽  
Property Regime

<p>The gloss contains remarks on the resolution of the Supreme Court of 19 October 2018 (III CZP 45/18), according to which an item acquired under the joint marital property regime and financed partly from the funds derived from the personal property of one of the spouses and from their joint property becomes the personal property of the spouse concerned and the joint property of the spouses in the proportion corresponding to the proportion of the funds allocated from those assets for its acquisition, unless the funds from the personal property or the joint property transferred for the acquisition of the property was an expense towards the joint or personal property, respectively. The gloss states that the rules of civil law concerning the formation of fractional joint ownership and the regulation of the joint marital property do not justify the thesis supported in the commented resolution. The conclusion of the gloss contains a proposal for interpretation that is different from that put forward in the resolution of the Supreme Court. It must be assumed that an asset acquired by both spouses or by one of them during the period of their joint marital property in exchange for funds derived from the joint property and personal property of one of the spouses becomes <em>ex lege</em> a component of the joint property of the spouses, unless, under the agreement of the spouses, it is acquired as a fractional joint property, one share of which goes to the joint property and the other to the personal property.</p>

scholarly journals The Settlement Principles and Effectiveness of Divorce by Mediation of Islamic Civil Perspective: A Critical Review of The Supreme Court Regulation

2021 ◽  
Vol 18 (1) ◽  
pp. 168-188
Author(s):  
Abdullah Taufik
Keyword(s):  
Supreme Court ◽  
Critical Review ◽  
Equal Opportunity ◽  
Civil Law ◽  
Cost Of Living ◽  
Conceptual Approach ◽  
Procedure Code ◽  
The Supreme Court ◽  
Religious Courts ◽  
Joint Property

Mediation of divorce is expected to be able to suppress the settlement of the case peacefully. In principle, based on the Elucidation of Law Number 1 of 19 74 concerning Marriage, the purpose of marriage is to form a happy and eternal family. Therefore it is urgent to find mediation pillars in settlement of divorce cases. To find the idea in response to these problems, three approaches: 1) laws and regulations, by examining them that relate with divorce settlement through mediation in religious courts; Supreme Court Regulation Numb. 1 of 2016, Civil Procedure Code. 2) Conceptual approach, from the view of experts/scholars, is used to find ideas by building concepts and arguments according to the issues to be examined to find the efficiency in the implementation of mediation. 3) Philosophy, studying literacy related to the theme of the study to capture philosophical content in finding the pillars of mediation in the study of Islamic civil law. The findings in this study are the pillars of mediation whose relevance to divorce disputes should be stated are: 1) Essence of Deliberation, to reach an agreement. 2) The essence of mutual forgiveness, to end the dispute. 3) The essence of respecting the rights of others, of avoiding the nature of egoism. 4) The essence of justice, giving equal opportunity to speak to each other so that both parties get the same rights. While the efficiency of the mediation implementation in settlement of divorce can be done by mediating: 1) Regarding the care and education of children, 2) cost of living of ex-wife, 3) guarantee for the maintenance of the joint property after the termination of a marriage.Mediasi diharapkan mampu menekan penyelesaian perkara penyelesaian secara damai. Pada prinsipnya berdasarkan Penjelasan Undang-Undang Nomor 1 tahun 19 74 tentang Perkawinan tujuan perkawinan adalah untuk membentuk keluarga yang bahagia dan kekal. Penurunan tingkat perceraian perlu ditekan, maka dari itu sangat mendesak untuk mencari pilar-pilar mediasi dalam penyelesaian perkara perceraian. Untuk menemukan ide dalam menanggapi permasalahan tersebut digunakan tiga pendekatan: 1) Peraturan perundang undangan, yang berhubungan dengan penyelesaian perceraian melalui mediasi di pengadilan agama; Peraturan Mahkamah Agung No. 1 tahun 2016, Kitab Undang Undang Hukum Acara Perdata. 2) Pendekatan konseptual, dari pandangan para ahli / ulama digunakan untuk menemukan ide dengan membangun konsep dan argumen sesuai dengan masalah yang akan dikaji sehingga dapat ditemukan efektifitas dalam pelaksanaan mediasi 3) Filsafat, mempelajari literasi yang berkaitan dengan tema kajian untuk menangkap muatan filosofis dalam menemukan pilar-pilar mediasi dalam kajian hukum perdata Islam. Temuan dalam penelitian ini adalah pilar-pilar mediasi yang relevansinya dengan perselisihan perceraian yang harus dikemukakan adalah: 1) Inti Musyawarah, untuk mencapai kesepakatan. 2) Inti saling memaafkan, untuk mengakhiri perselisihan. 3) Esensi menghargai hak orang lain, menghindari sifat egoisme. 4) Esensi keadilan, memberikan kesempatan yang sama untuk saling berbicara, sehingga kedua belah pihak mendapatkan hak yang sama. Sedangkan efektifitas pelaksanaan mediasi dalam penyelesaian perceraian dapat dilakukan dengan memediasi: 1) Seputar pengasuhan dan pendidikan anak, 2) biaya hidup mantan istri, 3) jaminan pemeliharaan harta bersama pasca pemutusan hubungan perkawinan.

BASIC FUNDAMENTALS OF CIVIL LAW AND THEIR IMPORTANCE

2019 ◽  
pp. 120-126
Author(s):  
Diana Vivcharuk
Keyword(s):  
Law Enforcement ◽  
Scientific Knowledge ◽  
Civil Law ◽  
Comprehensive Analysis ◽  
Practical Significance

Purpose. The purpose of the article is the regulation of relations on the principles of civil law. Methodology. The methodology includes a comprehensive analysis and a synthesis of available scientific and theoretical information. It is includes the formulation of relevant conclusions and recommendations. Such methods of scientific knowledge were used: terminological, functional, systemic-structural, logical-normative. Results: it was determined, that principles of civil law – an ideas of the civil law, that characterized by systematic,versatile, more stable, more regylated. Originality. An article is the special reseach that explores the problems of civil law in Ukraine. Practical significance. The results of the research can be used in legislation and law-enforcement activities.

Academic Feud, Bloodfeud, and William Welwood: Legal Education in St Andrews, 1560–1611-Part I

1998 ◽  
Vol 2 (2) ◽  
pp. 158-179 ◽  
Author(s):  
John W Cairns
Keyword(s):  
Seventeenth Century ◽  
Sixteenth Century ◽  
Legal History ◽  
Legal Education ◽  
Civil Law ◽  
Legal Culture ◽  
Roman Law ◽  
Joint Meeting ◽  
Academic Education

This article, in earlier versions presented as a paper to the Edinburgh Roman Law Group on 10 December 1993 and to the joint meeting of the London Roman Law Group and London Legal History Seminar on 7 February 1997, addresses the puzzle of the end of law teaching in the Scottish universities at the start of the seventeenth century at the very time when there was strong pressure for the advocates of the Scots bar to have an academic education in Civil Law. It demonstrates that the answer is to be found in the life of William Welwood, the last Professor of Law in St Andrews, while making some general points about bloodfeud in Scotland, the legal culture of the sixteenth century, and the implications of this for Scottish legal history. It is in two parts, the second of which will appear in the next issue of the Edinburgh Law Review.

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