scholarly journals Legal nature of state registration as a legal fact in the mechanism of dynamics of property rights

2020 ◽  
pp. 45-51
Author(s):  
M. Hudyma
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Scientific Publication ◽  
The State ◽  
Point Of View ◽  
Legal Structure ◽  
Legal Nature ◽  
State Registration ◽  
Legal Fact ◽  
The Right

This scientific publication attempts to clarify the legal nature of state registration as a legal fact in the mechanism of the dynamics of property rights. There has been made a critical analysis of the viewpoint of supporters of the recognition of the right-establishing character of the state registration and the viewpoint of scholars who consider that the state registration has the function of confirmation, legalization of already established rights. The legislative approach to the relevant issues, which reveals the inconsistency of regulations on the place and importance of state registration in the mechanism of the dynamics of property rights is analyzed. The root of all disagreements and inconsistencies is seen in the desire to take a clear position that the state registration performs only one function: either statutory or confirmatory, while the possibility of simultaneous performance of these two functions was not practically considered.It is substantiated that the legal nature of state registration is quite heterogeneous. If we talk about the property and legal significance of the act of state registration, then for the parties to the contract or other direct participants in the relative legal relationship aimed at the transfer of property rights to real estate, it will have a confirmatory value, and for third parties in absolute legal relations it will be of legal significance, providing a proof of this fact known. If we consider the state registration from the point of view of the dynamics of the process of transfer of property rights, to determine its role in this mechanism, it is the final legal fact in the legal structure, which entails the emergence of a new right holder. The publication emphasizes that giving state registration the importance of the final legal fact in the legal structure that causes the transition of property right we should not, however, shift the emphasis and consider it a priority legal fact in comparison with others. Although the registration of property rights is mandatory, it is secondary to the mechanism of transfer of ownership and other property rights to real estate, because it loses any sense and is absolutely impossible without the occurrence of other legal facts, including – the conclusion of a contract (real or consensual).

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.

scholarly journals Charakter prawny ograniczeń sposobu korzystania z nieruchomości w związku z ochroną zasobów środowiska – refleksje na temat art. 129 Prawa ochrony środowiska

2019 ◽  
Vol 16 (1 (3)) ◽  
pp. 185-198
Author(s):  
Sławomir Pawłowski
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Environmental Law ◽  
Public Law ◽  
Environmental Resources ◽  
Legal Nature ◽  
The Subject ◽  
The Republic ◽  
The Right ◽  
Right Of Property

The subject of the discussion is the legal nature of restrictions on the use of real estate in relation to the protection of environmental resources. Art. 129 of Environmental Law can have the effect that the use of a property or its part is impossible or substantially reduced. In doctrine, the dominant view is that such public-law interference in the right of property assumes the form of restriction referred to in Art. 64, par. 3 of the Constitution of the Republic of Poland. Another interpretation is also possible. Since the depth of the interference with property rights can lead to the effect that this property will become, as the Ombudsman has pointed out recently, “useless” to the owner, it would be reasonable to consider whether or not such property is de facto being expropriated. In such a case, the standard of constitutional control would be Art. 21, sec. 2.

scholarly journals THE MODERN VISION OF THE SYSTEM OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE

2021 ◽  
Vol 75 (2) ◽  
pp. 52-59
Author(s):  
Victoria Shekhovtsova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
The State ◽  
Point Of View ◽  
Property Right ◽  
Intellectual Property Right ◽  
Creative Activity ◽  
The Right ◽  
Intellectual Potential

The article is devoted to the research of the intellectual property rights system in Ukraine. Intellectual property is the result of the creative activity of any person or group of people. The author studied the categories «intellectual property» and «intellectual property right», investigated the principles of intellectual property and the system of intellectual property rights of Ukraine. In Roman law, there was the term «property», because the «property right» in its classical meaning was formed in Rome, and related to private relationships. Intellectual property is the property of a person that arose as a result of her creativity. However, for our Ukrainian legislation, the expression «intellectual property» is «terra incognita». Yes, intellectual property is studied by such branch legal sciences as: civil law, administrative law, international law, and others. Formed the State Service of Intellectual Property, but the organization of the state system of legal protection of intellectual property, in our difficult times, wants a better one. In the legal literature on intellectual property issues various definitions of «intellectual property right» are given. From a subjective point of view – this is a subjective right, and from an objective point of view – a civil law institute, a set of legal norms that regulate relations in the system of creation and protection of intellectual property. Man, his freedom and rights are the most important value of evolutionary development of society, which manifests itself in the growth of the intellectual potential of the population of each country. Only man possesses intelligence, creative potential and creative abilities. In addition to it, on earth, no living creature can create. Creative activity is the most important aspect of human life, which allows you to convey your talent to society. The consequence of this activity is something new, unique, unique and original. The accumulated products of the human mind are the heritage of the nation, which determine its further development.The Constitution of Ukraine guarantees to the citizens of the state freedom of scientific, artistic, literary and technical creativity, protection of intellectual property rights, moral and material interests arising in connection with various types of intellectual activity. Every citizen has the right to the results of his intellectual, creative activity; no one can use or distribute them without his consent, with the exception of the statutory provisions. The intellectual potential of the nation, in the form of improving education, production, culture, science and technology, needs constant support from our state. The Civil Code of Ukraine for the first time in our national legislation was given a formal definition of the right of intellectual property, as the rights of the individual to the result of intellectual, creative activity or other object of intellectual property rights.

scholarly journals LEGAL NATURE OF PROPERTY RIGHTS AND THEIR STATE REGISTRATION

2020 ◽  
Vol 1 (4(106)) ◽  
pp. 183-191
Author(s):  
Ю. М. Щавинська
Keyword(s):  
Property Rights ◽  
Local Governments ◽  
Family Relations ◽  
Legal Protection ◽  
Legal Nature ◽  
Administrative Duty ◽  
State Organizations ◽  
State Registration ◽  
The Right ◽  
Legal Entities

The relevance of the article is that the property rights of citizens and businesses are not only the basis of Ukraine's economy - they are based on family relations, they are also the material basis of local governments and state organizations, institutions and enterprises. In other words, without their proper registration and protection, it is impossible to ensure any other sphere of public life. In Ukraine, some attention is paid to the legislative definition of property rights and the problem of their state registration. And if with the first part of the outlined, in our opinion, a certain harmony is reached, then the issue of protection of property rights in today's conditions is acute. Its violations, in particular raids on enterprises and other violations of the property rights of individuals and legal entities, although decreased in number, but such facts have not remained in the past. The leading instrument of administrative legal protection of property rights is the institution of state registration of property rights, which in today's conditions is undergoing a process of further transformation and improvement in the effectiveness of protection of the rights of property rights. The artіcle reveals and descrіbes the legal nature of property rіghts and theіr state regіstratіon. Thіs іs done on the basіs of the theory of natural law, the theory of admіnіstratіve law, the theory of cіvіl law, as well as domestіc legіslatіon. Іt іs proved that the legal nature of the state regіstratіon of real rіghts to іmmovable property іs that іn іts іmplementatіon there are specіfіc admіnіstratіve and legal relatіons of a protectіve nature. It is concluded that the legal nature of state registration of property rights to property rights is that in its implementation there are classic administrative and legal protection relations, which involve applicants or their authorized persons, usually private legal entities, and public ( public) registrars as subjects of power. The content of these relations is: 1) the subjective right of the applicant to receive a kind of public protection in formal form (security document) and in essence - to use the entire public apparatus of protection and state coercion in his case in case of violation of registered property rights; 2) the administrative duty of a special subject of public administration (registrar) is a public obligation to carry out such registration. In turn, the registrar has the right to demand from the applicant provided by the current legislation confirmation of ownership of the property rights submitted for registration. Legal facts in the analyzed area of administrative and legal relations are the entry in the register of decisions on state registration, which directly lead to a change or termination of legal relations. A separate line in this area should be noted administrative-legal, administrative-procedural and economic-procedural legal relations that arise when appealing the decisions of state registrars to refuse registration (registration) of property rights to administrative or (and) judicial authorities.

scholarly journals Legally Binding Relationships with Regard to Digital Objects of Civil Rights

Lex Russica ◽  
2020 ◽  
Vol 73 (10) ◽  
pp. 21-31 ◽  
Author(s):  
O. S. Grin
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
General Rule ◽  
Point Of View ◽  
Digital Currency ◽  
Legal Nature ◽  
Digital Objects ◽  
The Law ◽  
The Right ◽  
Exclusive Right

The paper, based on the analysis of the legal nature of new digital objects of civil rights (digital rights, digital currency), makes conclusions concerning possible models of contractual relations arising from object’s data.The author relies on the fact that in relation to the category “a digital right” an independent object can be recognized only in connection with the peculiarities of the form of the object (the form in which the property rights are fixed) rather than its content. Token is seen as a technical concept. i.e. a digital way of fixing property rights. The paper substantiates that the retributive disposal of the digital right (both as a utilitarian digital right and a digital financial asset), according to which the digital right acquirer in order to transfer the right in question undertakes to pay a certain amount of money, under the general rule, should be qualified as a contract for the sale of a digital right. At the same time, in each case this also refers to the transfers the subject matter of which covers the transfer of a separate property right as an object of civil rights (cashless money, a book-entry security, a law of obligation (claims)) classified by law as a digital right.From the author’s point of view, digital currency in the system of objects of civil rights can be qualified only as “other property” in compliance with the the sui generis principle. It is concluded that transactions with digital currency should be classified as non-defined contracts. Contractual legal relations aimed at exchanging various objects for digital currency, in cases not contrary to the law, by analogy of the law, can be regulated under the rules applied to the contract of sale, the exclusive right alienation agreement or license agreement. Based on the special provisions of the law, a legally binding relationship regulating the digital currency, provided the tax authorities are not informed about such possession and transactions with such an object, has features of a natural obligation.

scholarly journals Administrative procedure for provision of public services on state registration of property rights on real estate: stages and contents

2020 ◽  
pp. 9-12
Author(s):  
Nataliia MARTYNIUK
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Public Service ◽  
Public Services ◽  
The State ◽  
Real Property ◽  
Administrative Procedure ◽  
State Register ◽  
State Registration

The paper is devoted to the coverage of the category of administrative procedure for the provision of public services for state registration of real rights to immovable property. The categories «stage», «administrative procedure for the provision of public services» and «stages of the administrative procedure for the provision of public services» are compared. A description of the stages of the procedure for providing public services for state registration of real property rights is given. It is emphasized that the administrative procedure for state registration of real property rights has consisted of the following stages: 1) submission of applications and documents to it includes actions such as acceptance and verification of documents submitted for state registration of rights and encumbrances; application registration, etc.; 2) consideration of the case or investigation of all circumstances related to the provision of public service; 3) making a decision on the provision of public service for state registration of real rights to immovable property; 4) making entries in the state register of rights to provide public services for state registration of real rights to immovable property; 5) issuance of documents for the provision of public services for state registration of real rights to immovable property. Attention is drawn to the fact that the main tasks of the stage of acceptance and verification of documents for public services submitted for state registration of rights and their encumbrances stage are: verification of documents on payment of administrative fees for public services and extraction from the State Register of Rights; acceptance of applications and documents required for state registration of rights; registration of the application in the database on registration of applications and inquiries; verification of documents for compliance with general requirements.

scholarly journals Theoretical and legal bases of protection of business entities from raiders in Ukraine

2020 ◽  
pp. 51-56
Author(s):  
N.S. Horobets ◽  
Ye.S. Pylypenko
Keyword(s):  
Property Rights ◽  
Private Property ◽  
Criminal Liability ◽  
The State ◽  
Small Enterprises ◽  
Legal Principles ◽  
Business Entities ◽  
State Registration ◽  
The Right ◽  
Common Understanding

The article is devoted to the study of theoretical and legal principles of protection of business entities from raids in Ukraine due to the low level of quality of the system of protection of private property rights in the state. It is stated that for small enterprises the lack of financial resources and the risk of illegal seizure or takeover, ie "raiding", is a more common problem, but large enterprises are also subject to raids. It was found that raiding is a real threat to the integrity of enterprises, stable economic development and information security of the state, its danger is confirmed by data on the number of raider seizures of property in Ukraine. It is noted that one of the areas of counteraction to raiding is the consolidation at the legislative level of a common understanding of this concept, but the Civil Code of Ukraine, the Law of Ukraine "On Joint Stock Companies" deals only with certain aspects of raiding. Features of "white", "gray", "black" raiding are revealed. There are two ways to warn and protect businesses from raiding: the use of government tools and self-preventive protection of the enterprise. The state instruments of warning and protection of enterprises from raids include: legislative guarantees of inviolability of property and protection of property rights of enterprises in case of violation, criminal liability for misappropriation of property, the procedure of state registration of property rights, the right to apply for protection of rights and interests to the court and the Office for Combating Raiding at the Ministry of Justice of Ukraine. It is emphasized that only 20% of enterprises independently protect themselves from raider encroachment, which explains the large number of raider seizures in Ukraine. Among the methods of such protection, emphasis is placed on creating a reliable system of protection of information about the company, ensuring timely and full payment of dividends to shareholders, preventing the mass purchase of shares and monitoring the current situation. It is concluded that it is expedient to develop and consolidate at the legislative level a common understanding of the concept of "raiding", guarantees of warning and protection of business entities from raiding in Ukraine, improving the powers of courts and the Office for Combating Raiding in Ukraine to consider issues of registration of property rights of enterprises.

scholarly journals Protection of the property rights of legal entities to real estate: mandatory methods

2021 ◽  
Vol 3 ◽  
pp. 8-11
Author(s):  
P.A. Strelnikov ◽  
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
The State ◽  
Property Right ◽  
Judicial Practice ◽  
Judicial Procedure ◽  
State Registration ◽  
Legal Entities

This article reveals the features of obligatory ways of protection of the rights of privacy to immovable property of legal entities from the perspective of the established judicial practice. The importance of this problem is conditioned by the basic nature of the property right as the basis of property turnover in the state and legal guarantees of protection of rights, freedoms and legal interests of legal entities to immovable property, among which the judicial procedure of protection of rights of legal entities is one of the ways of not prohibited and practiced. The purpose of this article is to identify the features of invalidation of the transaction and the application of the consequences of invalidity, as well as the recognition of invalidation of the act of state registration of rights to immovable property of legal entities, including challenging the registered right to immovable property of legal entities. To achieve this goal, the author formulates the following tasks: identification of specifics of obligatory ways to protect the rights to immovable property of legal entities.

The basis of the appearance of personal non-property rights of legal entities

2020 ◽  
pp. 90-95
Author(s):  
Sofiia Popova
Keyword(s):  
Property Rights ◽  
The State ◽  
Main Body ◽  
Economic Competition ◽  
Legal Form ◽  
Legal Entity ◽  
Legal Provisions ◽  
State Registration ◽  
The Right ◽  
Legal Entities

Problem setting. The role of a legal entity in the economic and legal development of the state is quite important. Legal support for the implementation and protection of the essence and activities of these organizations is an important element in achieving these goals. Therefore, in order to improve the legal provisions for legal entities, it is necessary to investigate such a feature of the features of non-property rights as the specificity of their origin, through interaction with the essence of the organization. Analysis of recent researches and publications. Among the researchers who in their works addressed the issue of the basis of the appearance of personal non-property rights ot should be noted Y. M. Zhornokuy and S. O. Slipchenko, V. V. Kachurovsky and R. O. Stefanchuk. Previous research has shown that personal non-property rights of legal entities have specific basis of the emergence. It is concluded that since a legal entity is created on the basis of state registration, the state thus recognizes it as a subject of law. Target of research. Our study is based on the certain aspects of the emergence of definite rights of these subjects of legal relations because legal entities take a special place in the development of the state. The main aim of the study is to research the basis of the appearance of personal non-property rights of legal entities. Article’s main body. Due to the fact that a legal entity is created on the basis of state registration, the state recognizes such a person as a subject of law. This indicates that the characteristic of a legal entity is the publicity of the emergence. Determining the classification of personal non-property rights of legal entities, their differentiation into general, which are related to the essence of the legal entity and special, which have a primary distinguishing feature. These species helped to apply this criterion to the basis for such rights. The analysis of separate personal non-property rights of the organizations is carried out and it is established that certain of them appear at the legal entity in connection with certain conditions, that is special personal non-property rights of the legal entity appear at the organizations in connection with their belonging to a certain kind, organizational and legal form and whether it carries out business activities. It is determined that the moment of the emergence of the right to economic competition cannot be established. Conclusions and prospects for the development. The base for the emergence of general personal non-property rights of organizations are, first of all – its creation through state registration or issuance of an administrative act by a body of state power and local self-government. Also the basis is to obtain an appropriate permit, violation of such rights, the task of property or moral damage, as well as an abstract form of acquisition by the organization of a commercial name. Special basic of the emergence of personal non-property rights of legal entities are the basics with a primary distinguishing feature. This issue is quite relevant and requires further research.

scholarly journals ON THE STATE REGISTRATION OF A RIGHT: ON THE EXAMPLE OF THE RIGHT OF THE SURVIVING SPOUSE TO A SHARE IN JOINT PROPERTY PURSUANT TO PARAGRAPH 2 CLAUSE 4 ARTICLE 256 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION

2020 ◽  
Vol 3 ◽  
pp. 44-47
Author(s):  
Kamil M. Arslanov ◽  
Keyword(s):  
Russian Federation ◽  
General Rule ◽  
Civil Code ◽  
The State ◽  
Civil Proceedings ◽  
Legal Nature ◽  
The Russian Federation ◽  
State Registration ◽  
The Right ◽  
Joint Property

In the course of the ongoing reform of civil legislation the Civil Code of Russian Federation was amended in 2018, including Art. 256 (paragraph 2, item 4) regarding the legal fate of common joint property of spouses after the death of one of them. In the notarial practice the question arose in this regard as to whether the surviving spouse can be considered the owner of the property in the absence of state registration of the ownership right and, accordingly, in the future to be the heir to such property. This predetermines the question about the meaning of the state registration itself as a legal procedure in civil proceedings. It is concluded that the state registration for the case of paragraph 2, item 4 of Art. 256 of the Civil Code of the Russian Federation is not of a legal nature and has a procedural meaning of formalization of legal relations. Thus, this is one of the exceptions from the general rule on the need for state registration for the recognition of the existence of ownership of real estate.

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