scholarly journals Bankruptcy and Enforcement Proceedings: Legal Institution Correlation Issues

JURIST ◽  
2021 ◽  
Vol 5 ◽  
pp. 30-36
Author(s):  
Diana O. Osmanova ◽  

The author defends the position that it is inadmissible to identify the mechanisms of bankruptcy and enforcement proceedings, examining the aspects of the permissibility of initiating bankruptcy proceedings by the bankruptcy creditor of the debtor, a legal person whose claims are based on a judicial act that has entered into force, according to which the possibility of enforcement has been lost. The article proves that, in view of the function that the insolvency process performs for corporations, the initiating creditor should not be limited by the rules of limitation, since it actually acts in the interests of the civil law community, which unites all creditors of the debtor.

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.


2014 ◽  
Vol 38 (2) ◽  
pp. 379-403 ◽  
Author(s):  
Lionel D. Smith

The French jurist Pierre Lepaulle argued that the common law trust could be best understood, in civilian terms, as a patrimony by appropriation. This argument has been influential in some civilian receptions of the trust. In fact, Lepaulle misunderstood the nature of the common law trust, which is founded on the obligations owed by the trustee in relation to the trust property. The rights of beneficiaries in the common law trust are neither purely personal rights against the trustee, nor are they real rights in the trust property, but rather they are rights over the rights which the trustee holds as trust property; they have a proprietary character since they persist against many third party transferees of the trust property. This analysis of the common law trust leads to the conclusion that it would be a fundamental change to turn the common law trust into a legal person. More generally, it is argued that any legal system that characterizes the trust as a legal person will find that it has ceased to understand the trust as a fundamental legal institution.


Author(s):  
А. Арямов ◽  
A. Aryamov ◽  
Е. Руева ◽  
E. Rueva

The article considers the most effective mechanisms for realizing the confiscation of property as a means of counteracting corruption. The confiscation institute is investigated in its civil, not criminal-legal meaning. The authors of the article paid special attention to the analysis of international legal regulation of various issues of confiscation in rem and the problems of implementing this institution in the domestic legal field. An analysis of domestic anti-corruption legislation showed that, for all its similarity with the institution, confiscation in rem, the domestic civil-legal institution of confiscation is not such. In the process of its definition, vices are laid, which nullify the effectiveness of the implementation of this institution. When investigating the civil-law institute of property confiscation, the authors used methods of analysis, synthesis, systemic and functional approaches, formal legal and comparative legal methods. On the basis of these methods, the authors come to the conclusion that Russian legislation ensuring the implementation of Art. 235 GCRF, at the moment does not contain effective tools to combat corruption. The author draws attention to the problem of corruption-relatedness of the anti-corruption legislation. In his opinion, the solution of this problem will require a serious analysis of all normative material, a detailed forecast of the application of legal norms in real social conditions.


2021 ◽  
Vol 9 (1) ◽  
pp. 13-23
Author(s):  
Cristian Macsim

The legal person, now a distinct institution in its own right, regulated as such in the Romanian Civil Code, is the result of a long process of modernisation of Romanian legislation, but also of its harmonisation with international regulations which unanimously recognise the legal person as a subject of law. The notion of legal person was born in private law and has been and is used in all branches of law. Legal persons are distinct subjects in civil law or commercial law legal relationships. The legal person is a subject of law with a wide scope in the legal circuit. Commercial companies, autonomous companies, companies, are participants as legal persons in private law relationships. Legal persons are the entities provided for by law, as well as any other legally-established organisations which, although not declared by law to be legal persons, fulfill all the conditions provided for by the Civil Code and the relevant legislation. The present article aims to present the specific rules for the establishment and functioning of a legal person, as well as issues related to classifications and constituent elements, and to their liability for legal acts or deeds performed.


2021 ◽  
Vol 43 (4) ◽  
pp. 147-156
Author(s):  
Marcin Podleś

The purpose of this paper was to analyze how the regulation of legal personality by positive law affected the rights and freedoms of individuals in the period of the Polish People’s Republic. The possession of legal personality leads to the empowerment of an organization and facilitates it by pooling resources to achieve a certain goal. Having legal personality also gives an entity a certain autonomy vis-à-vis other entities, including its members and the state. The analysis has shown that in the period of the Polish People’s Republic, positive law was deliberately used to limit the possibility of creating entities with their own legal personality. The formal concept of a legal person was used instrumentally as a tool to impede the possibility of building an organization outside state control. It also led to a structurally incorrect and practically questionable recognition of the judicial capacity of entities that did not have legal personality. In addition, using the concept of an economic unit in the area of economy, a functional criterion was adopted to determine the participants of economic turnover, which also broke with the traditionally adopted in this respect approach based on legal personality. This led some of the representatives of civil law doctrine at that time to consider the institution of legal personality as useless, which testified to the fact that the legal environment and the applied mechanisms typical of an authoritarian state suppressed any autonomy and independence of interest underlying a separate legal personality.


2019 ◽  
Vol 2 (1) ◽  
pp. 67-81

This essay analyzes legal nature and grounds of nullity of transactions according to the civil legislation of Ukraine and modern civil law achievements. Correlation between invalid, void and illegal transactions is set. It establishes the specifics of invalid transactions, that demarks them from other similar legal categories. The essay discloses gaps and contradictions in the legislation of Ukraine, while pointing out different approaches of the application of law by the courts when it comes to the nullity of transactions, as well as offers solutions as to its improvement. The legal nature of articles of incorporation (articles of association, except for the articles of association ofa partnership) is analyzed. And issue of possibility to use provisions as to invalidity of transactions to invalidating the incorporation documents of a legal person and/or decisions of the general meeting of the partnerships is set.


Author(s):  
Clair Valverde Pereira

Resumo: Este artigo aborda a controvérsia da aplicação do Código de Defesa do Consumidor às relações jurídicas contratuais no âmbito do mercado de derivativos, tendo em vista os tipos de operações efetuadas, o hedge (proteção), a arbitragem e a especulação. A princípio poder-se-ia pensar que são todos contratos empresariais, em que se busca o lucro, mas através do estudo, usando a título de exemplo o contrato de swap, típico para operações de hedge, chega-se à conclusão que estas operações podem se enquadrar na relação de consumo. Essa conclusão decorre, levando-se em conta uma pessoa jurídica que busca uma instituição financeira para realizar um contrato swap, da adequação ao conceito de consumidor, bem como de produto e serviço prestado, qual sejam, respectivamente, a proteção e o conhecimento técnico e estrutura de gerenciamento de risco que a instituição possui, o que quase sempre leva à uma hipossuficiência técnica do contratante. Assim, a relação de consumo é aceitável e de possível aplicação no mercado de derivativos, mas somente nas operações de hedge, em que se busca um produto, a proteção, e o serviço, o conhecimento técnico da instituição. Portanto, colocam-se em xeque os argumentos de que o direito fundamental da proteção ao consumidor, através do Código, não se estenderiam ao âmbito do mercado de derivativos, fazendo incidir apenas as normas do Direito Civil.Abstract: This paper discusses the application of the controversy of the Consumer Protection Code to contractual legal relationships in the derivatives market, in view of the types of operations performed, the hedge (protection), arbitrage and speculation. At first it may be thought that are all business contracts, which seeks to profit, but through study, using as an example the swap agreement, typical for hedge transactions, one comes to the conclusion that these operations they may fall in consumption ratio. This conclusion follows, taking into account a legal person seeking a financial institution to hold a swap contract, the adequacy consumer concept and product and service, which are, respectively, the protection and the technical knowledge and risk management framework that the institution has, which almost always leads to a contracting technique vulnerability. Thus, the consumption ratio is acceptable and possible application in the derivatives market, but only in hedging transactions, which seeks a product, protection, and the service, the expertise of the institution. So put yourself in check the argument that the fundamental right of consumer protection, through the Code, does not extend the scope of the derivatives market, making only focus the rules of civil law.


Author(s):  
A. V. Molchanov

Regulation of relations connected with the organization and holding of tenders exclu- sively by the norms of civil law and civil legislation is impossible, since the issues of ensuring competition are of a public nature, aimed at ensuring public interest, which is the basis of the constitutional system of our state, and therefore require public legal regulation. Taking into account the importance of tenders for ensuring competition, it is more effective to develop both the legal institution of tenders in the sphere of complex branch of competition law and the legislation on tenders, as its external manifestation, in the sphere of antimonopoly legislation.


2020 ◽  
Vol 13 (2) ◽  
pp. 199-222
Author(s):  
Dana-Lucia Tulai

The mandate contract, although it bears similarities to other types of conventions and legal institutions, is unequivocally different in its specific features. In our article, we shall try to distinguish the mandate from representation, a legal institution with which it shares similarities that have generated doctrinal discussions. We believe that the usefulness of this approach is justified all the more since representation has received its own legal regulation under the new Romanian Civil Code, for the first time in our civil law. The conclusion of our study is that representation is not the essence of the mandate, but only characterizes its nature, since there is mandate without representation, as well as representation without mandate.


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