scholarly journals Obligatory Share and Entitled Entities: An Obligatory Share during Testamentary Inheritance

2021 ◽  
Vol 17 (6) ◽  
Author(s):  
Ekaterine Nandoshvili
Keyword(s):  
Civil Code ◽  
Effective Model ◽  
Systematic Analysis ◽  
Legal Norms ◽  
Common Features ◽  
Swiss Law ◽  
The Law ◽  
The Right ◽  
Right Of Property ◽  
To Receive

This paper focuses on the results of the research of normative acts and practices regulating the institute of mandatory shares and entities with the right to the mandatory shares. Formation of the correct view on this issue is a precondition for the redistribution of property in accordance with the law of inherited property, both in court and in notarial practices. In turn, the proper redistribution of the inherited property is directly related to the protection of property and inheritance rights. This is why the studied issue does not lose its urgency. The aim of the paper is to correctly define the essence of the mandatory share, as well as the subjects entitled to the mandatory share, to identify the shortcomings in this issue, and to develop recommendations for their perfection. The comparative-legal, logical, and systematic analysis of norms were used to achieve this goal. Problems were analyzed using the examples of Georgian, German, and Swiss law. In defining the mandatory share and the subjects entitled to it, both common features and essential differences were revealed between the named models, This, however, makes it possible to define a more effective model - a number of advantages of the Georgian model were identified - which is reflected in the mechanism of effective exercise of the right to mandatory share without a court. In addition, the study found that the testator’s grandchildren are not eligible entities to receive a mandatory share if their parent died before the testator. The legal norms of inheritance are interpreted in relation to the Constitution. On this basis, the shortcomings of a number of norms for both the Civil Code of Georgia and the Law of Georgia “On Entrepreneurs” and even non- compliance with the Constitution are identified. This is why it is necessary to improve them and create the stable guarantees for the right of property and inheritance.

scholarly journals Rozgraniczenie statutu rzeczowego i kontraktowego przy poszukiwaniu prawa właściwego do oceny zastrzeżenia prawa własności

2020 ◽  
pp. 233-251
Author(s):  
Agata Kozioł
Keyword(s):  
Legal System ◽  
The Other ◽  
Traditional Model ◽  
Legal Systems ◽  
Tangible Assets ◽  
The Law ◽  
The Right ◽  
Right Of Property ◽  
To Receive ◽  
Actual Location

Retention of title as a security on tangible assets is well known in many legal systems. It enables to strengthen the position of the seller in such a contract of sale in which the payment of the price is agreed to be done later than the handing over the good. This instrument disturbs the traditional model of sale in two ways. Firstly, the conclusion of the contract is not directly followed — which takes usually place — by the performance of the obligation to transfer the property. Secondly, the right of property receives in that way a new role to play — it becomes a security right, guarantying the pecuniary claim of the seller and ceases the function of the principal right. In order to find the law applicable to the retention of title, its different aspects — contractual and real — should be qualified according to their nature. These aspects should be treated separately and be assessed according to the proper legal system. For example, the law applicable to contractual assets of retention of title defines if such belated transfer of ownership affects any general rights and obligations of parties, such as the right to receive benefits from the asset or to bear costs of its maintenance. On the other hand, the law of actual location of the asset as a law applicable to real aspects of the retention of title defines the nature of the element disturbing the transfer of ownership and the scope of rights of the seller towards charged good as its owner.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

scholarly journals International legal guarantees for the realization of human and citizen rights to environmental information

2021 ◽  
Vol 12 (4) ◽  
Author(s):  
Butsmak Artem ◽  
Keyword(s):  
Environmental Information ◽  
Public Authorities ◽  
Legal Norms ◽  
Legal Documents ◽  
Ecological Information ◽  
Right To Information ◽  
The Right ◽  
International Instruments ◽  
Right Of Access ◽  
To Receive

In the article considered guarantees of the right on access to ecological information fixed in international legal documents. Also made a research on state of implementation such international instruments in national Ukrainian legislation, separate legal instruments of realization the right to get ecological information. Made examples of successful defence of the broken right on access to ecological information. In order to exercise the right to information, it is important not only to have the norms enshrined in the legislation, but also the system of guarantees and opportunities for their implementation, which should be provided by public authorities. International legal documents establish only general approaches to the protection of rights, and their further development and consolidation is undoubtedly entrusted to national authorities. The analysis of the current national legislation allows to state that in general the international legal norms have found the reflection in national regulatory legal acts. However, over time, approaches to understanding environmental information, expanding its list, the subjects who have the right to receive it, so work in this direction should continue in order to increase the possibility of exercising the right of access to such information. Keywords: ecolaw, right on access to ecological information, guarantees of right on access to ecological information, international guarantees of right on access to ecological information

scholarly journals PENYEBAB TIDAK BEKERJANYA HUKUM PEMENUHAN HAK PENYANDANG DISABILITAS PADA LAYANAN TRANSPORTASI DI JAWA TIMUR PERSPEKTIF PERLINDUNGAN KONSUMEN DAN MAQASHID SYARIAH

JURISDICTIE ◽  
2019 ◽  
Vol 10 (1) ◽  
pp. 33
Author(s):  
Musa Taklima
Keyword(s):  
Consumer Protection ◽  
Primary Data ◽  
Persons With Disabilities ◽  
Limited Mobility ◽  
Legal Norms ◽  
Legal Literacy ◽  
Transport Organization ◽  
Transportation Accessibility ◽  
The Law ◽  
The Right

<p><em>This study aims to describe first, the main factors causing the inability of the law to fulfill transportation accessibility rights for persons with disabilities in East Java, secondly, the legal review of consumer protection and maqashid sharia against non-fulfillment of transportation accessibility rights for persons with disabilities, third, legal solutions to compliance transportation accessibility rights of persons with disabilities in East Java. The research method used is empirical research with a sociological juridical approach that is related to the effectiveness of the law to fulfill the accessibility rights of persons with disabilities in the field of transportation, which relies on primary data obtained through guided free interviews from primary data sources as well: (1) Transportation Service of East Java Province , (2) Regional Representative Council of the East Java Highway Transport Organization (Organda), which is then analyzed descriptively by a deductive pattern. The results of this study, first, legal norms used to burden the obligation to fulfill the right of accessibility of persons with disabilities to business actors are mandatory norms not prohibitors, business actors do not have legal awareness because they do not know about these obligations and apparatuses also do not have legal norms this is because of ignorance of this obligation, second, in the perspective of legal consumer protection, accessibility is a consumer right specifically for persons with disabilities given Law No. 8 of 2016 and also the obligation of business actors provided by Law No. 22 of 2009, there is no realization of accessibility rights in transportation, business people have ignored consumer rights of disability as well as obligations that must be fulfilled by business actors, maqashid Syariah's perspective sees the implications of not achieving transportation accessibility rights can result in their limited mobility to find work which leads to acts requesting that this need collide with hifdz al-mal and al-'urd. Third, the solution for fulfilling the right of accessibility of persons with disabilities in the transportation sector is (1) Establishment of a National Disability Commission that can advocate for the neglect of the rights of persons with disabilities in macro, (2) legal literacy as a legal literacy media on the rights of persons with disabilities.</em></p><p><em> </em></p><em>Penelitian ini bertujuan untuk mendeskripsikan pertama,<strong> </strong>faktor utama penyebab tidak bisa bekerjanya hukum pemenuhan hak asesibilitas transportasi bagi penyandang disabilitas di Jawa Timur, kedua, tinjauan hukum perindungan konsumen dan maqashid syariah terhadap tidak terpenuhinya hak aksesibilitas transportasi bagi penyandang disabilitas, ketiga, solusi hukum terhadap pemenuhan hak aksesibilitas transportasi penyandang disabilitas di Jawa Timur. Metode penelitian yang digunakan adalah penelitian empiris dengan pendekatan yuridis sosiologis yaitu terkait dengan efektivitas hukum pemenuhan hak aksesibilitas penyandang disabilitas dibidang transportasi, yang bertumpuh kepada data primer yang didapat melalui wawancara bebas terpimpin dari sumber data primer pula yaitu: (1) Dinas Perhubungan Provinsi Jawa Timur, (2) Dewan Perwakilan Daerah Organisasi Angkutan Jalan Raya (Organda) Jawa Timur, yang kemudian dianalisis secara deskriptif analisis dengan pola deduktif. Adapun hasil penelitian ini, pertama, norma hukum yang digunakan untuk membebani kewajiban pemenuhan hak aksesibilitas penyandang disabilitas kepada pelaku usaha adalah norma mandatur bukan prohibitor, pelaku usaha tidak memiliki kesadaran hukum karena mereka tidak mengetahui tentang kewajiban ini dan apparat juga tidak memiliki keterikatan dengan norma hukum ini karena ketidaktahuan terhadap kewajiban ini, kedua, dalam perspektif hukum perlindungan konsumen, aksesibilitas merupakan hak konsumen khusus bagi penyandang disabilitas yang diberikan Undang-Undang No. 8 Tahun 2016 dan juga merupakan kewajiban pelaku usaha yang diberikan oleh Undang-Undang No. 22 Tahun 2009, tidak terealisasinya hak aksesibilitas dalam transportasi, pelaku usaha telah mengabaikan hak konsumen disabilitas sekaigus juga kewajiban yang harus dipenuhi oleh pelaku usaha, perspektif maqashid Syariah melihat implikasi tidak terwujudnya hak aksesibilitas transportasi dapat mengakibatkan sempitnya mobilitas mereka untuk mencari pekerjaan sehingga berujung pada perbuatan meminta minta yang terntunya ini berbenturan dengan hifdz al-mal dan al-‘urd. Ketiga, solusi agar hak aksesbilitas penyandang disabilitas di bidang transportasi terpenuhi adalah (1) Pembentukan Komisi Disabilitas Nasional yang bisa mengadvokasi pengabaian hak-hak penyandang disbailitas secara makro, (2) legal literacy sebagai media melek hukum tentang hak-hak penyandang disabilitas.</em>

scholarly journals ABUSE OF THE RIGHT TO INITIATE BANKRUPTCY PROCEEDINGS

2020 ◽  
pp. 259-264
Author(s):  
В. В. Дутка
Keyword(s):  
The Other ◽  
Legal Entity ◽  
Legal Norms ◽  
Other Hand ◽  
Bankruptcy Procedure ◽  
Good For ◽  
The Law ◽  
The Right ◽  
Ordinary Citizens ◽  
Legal Entities

The relevance of the article is that society’s attitude to the bankruptcy procedure is ambiguous: ordinary citizens who have never been involved in bankruptcy proceedings often perceive it as a certain negative phenomenon that should be avoided and avoided. On the other hand, for many debtors, bankruptcy becomes the “lifeline” with which they can repay their claims to creditors and start financial life “from scratch”. At the same time, it should be noted that many debtors and creditors use the bankruptcy procedure not for the purposes provided by the legislator in the relevant legal norms, but to satisfy only their own interests, to the detriment of the interests of other parties to the case. In this regard, the study of the abuse of the right to initiate bankruptcy proceedings becomes relevant. The article is devoted to the study of abuse of the right to initiate bankruptcy proceedings. The purpose of the article is to study the abuse of the right to initiate bankruptcy proceedings and highlight the author’s vision of this issue. According to the results of the study, the author concludes that the application to the debtor of bankruptcy procedures can be both good for the debtor and to the detriment of the interests of his creditors. Entities that could potentially abuse the right to initiate bankruptcy proceedings are: creditors of the debtor – a legal entity, as well as debtors – legal entities, individuals and individuals – entrepreneurs. The fact of exemption of debtors from the court fee for filing an application to initiate bankruptcy proceedings is not only an unjustified luxury for our state, but also only contributes to the abuse of the right to initiate bankruptcy proceedings by unscrupulous debtors. In order to reduce the number of cases of abuse of the right to initiate bankruptcy proceedings, the author justifies the need to complicate the conditions for opening bankruptcy proceedings, for example, by returning the conditions provided by the Law of Ukraine “On Restoration of Debtor’s Solvency or Recognition of Debtor’s Bankruptcy”.

ON THE PROBLEMS OF EXERCISING THE AUTHORITY OF THE REPRESENTATIVE OF THE CLAIMANT TO RECEIVE THE AWARDED FUNDS: ALL DOUBTS ARE NOT IN FAVOR

2021 ◽  
Vol 10 (6) ◽  
pp. 294-316
Author(s):  
E.V. ZAICHENKO
Keyword(s):  
Bank Account ◽  
Judicial Practice ◽  
Special Power ◽  
The Law ◽  
The Right ◽  
To Receive

The author examines the problematic aspects of the implementation by the representative of the claimant under the enforcement document of a special power to receive funds both in the course of enforcement in the presence of enforcement proceedings initiated in the relevant division of bailiffs, and in the order of presenting the writ of execution directly to a Bank or other credit organization. It is stated that there is no uniformity of judicial practice on the issue of recognizing the right of a representative to demand the transfer of funds due to the recoverer to the account of the recoverer’s representative in the event of the exercise of this power during the initiated enforcement proceedings. The article substantiates the provision on the involuntary nature of the Bank’s actions carried out in accordance with Article 8 of the Law on Enforcement Proceedings, as well as on the unreasonableness of the ban on transferring funds to the personal Bank account of the representative in the case of applying with an enforcement document to the Bank for the purpose of collecting in a simplified manner. It is concluded that there are no significant grounds for differentiating the considered options for collecting funds in order to determine whether the representative of the recoverer has the right to receive the money awarded to the recoverer.

8 Chile

2018 ◽  
Author(s):  
Armas M Marcelo
Keyword(s):  
Civil Code ◽  
Bankruptcy Law ◽  
Legal Concept ◽  
Contractual Arrangement ◽  
Cross Border ◽  
Before And After ◽  
The Law ◽  
The Right

This chapter examines the law of set-off in Chile, both before and after insolvency, as well as the alternatives for contractual set-off structures that may be agreed among two or more parties. In Chile, set-off was created as a legal concept primarily on the basis of practical considerations rather than juridical principles. The right to set-off may arise due to a contractual arrangement between the parties or by the operation of law, including the Chilean Civil Code. The chapter first considers set-off in Chile outside insolvency, focusing on set-off by operation of law and contractual set-off, before discussing set-off in insolvency. In particular, it explains the implications of a declaration of liquidation under Chilean Bankruptcy Law and its possible consequences for set-off rights. It also analyses issues arising in cross-border set-off.

Legal Liability for Land Offences

10.12737/6590 ◽  
2014 ◽  
Vol 2 (12) ◽  
pp. 0-0
Author(s):  
Елена Болтанова ◽  
Elena Boltanova
Keyword(s):  
Social Relations ◽  
Social Impact ◽  
Forced Termination ◽  
Land Law ◽  
Legal Cases ◽  
Legal Norms ◽  
Analysis And Synthesis ◽  
The Law ◽  
Theory Of Law ◽  
The Right

Though the term «infringement of the land law» is quite broadly used both in the practical legislation and in the theory of law, the definition of the term is quite disputable. The same is true regarding the types of responsibility that the infringement can generate. The article is aimed at defining the term and the notion of the infringement of the land law and at the substantiating of the various types of responsibility for the infringement. Acting norms of law of Russia, practical legal cases, scientific, academic and other publications constitute the empiric data for the research. The method of the research in its broader sense is based on the materialist dialectic, which makes it possible to consider the facts and processes in their interrelation and development. Besides, the methods of formal logics, of normative dogmatics, of analysis and synthesis and others were used during the research. The article proves that the type of responsibility, be it criminal, administrative, disciplinary, property liability, depends on the social impact and danger, on the functions of responsibility, and, to certain extent, on the practical thought. This is viewed from the position of interrelated and objectively connected legal norms maintaining law, which, in its turn, determines the sanction be separate from the hypothesis and from the disposition of legal norm. The law of Russia determines such a sanction as the forced termination of the right for the spot of land due to its misuse. The sanction is strictly personified and restrictive. The article stipulates grounds for the usage of the sanction as a measure of special responsibility in the sphere of land law. The responsibility is objectively conditioned by the specificity of land social relations and by infringements of the land law in particular. The research concluded that the infringement of the land law is an integral notion, characterized by the action deviating from those required by the law, and breaking the land laws. The land law is enforced by a system of measures of various types of responsibility, whereas the legislation regulating the responsibility has certain completeness and systemic integrity.

scholarly journals Konsep Badan Hukum Perhimpunan Baitul Maal Wat Tamwil (BMT) Sebagai Penguatan Hukum Ekonomi Kerakyatan

2019 ◽  
Vol 19 (2) ◽  
pp. 233
Author(s):  
Erisa Ardika Prasada ◽  
Joni Emirzon ◽  
K.N Sofyan Hasan
Keyword(s):  
Economic Activity ◽  
General Rule ◽  
Civil Code ◽  
Legal Research ◽  
Legal Entity ◽  
Legal Norms ◽  
Legal Principles ◽  
Gradual Process ◽  
The Law ◽  
The Government

Baitul Maal wat Tamwil (BMT) was established and developed with a gradual process of legal legality, namely BMT in which its legal entity was not yet known, BMT that had not had a legal entity, and BMT that had a diverse legal entity. This writing aimed at analyzing the concept of legal strengthening of BMT in Indonesia. This type of legal research was normative legal research on legal principles and legal systematics. Based on the discussion, it was concluded that BMT could be a legal entity because it had fulfilled the requirements requested by legislation, namely the general rule of Article 1653 of the Civil Code which stated that in addition to genuine civil fellowship, the law also recognized assembly of people as legal entity, both held or recognized by the government, or the assembly was accepted as permitted, or had been established for a specific purpose that was not contrary to law or good morality. Juridical considerations for BMT institutions were legal legality for every sharia economic activity and the variety and partial legal norms of BMT.

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