Temporal certainty of material civil legal relations. Some problematic issues

2021 ◽  
pp. 91-96
Author(s):  
P. Guyvan
Keyword(s):  
Civil Rights ◽  
New Right ◽  
Legal Relationship ◽  
Temporal Boundary ◽  
The Moment ◽  
Definition Of ◽  
The Right ◽  
Substantive Law ◽  
Real Essence ◽  
The Relationship

This article is devoted to the study of the scientific question of the temporal parameters of the certainty of the protection and legal relationship that arises in the case of violation of the subjective civil rights of the person. The author’s vision of the time of existence of the law is given, in this context the fundamental difference between the concepts of "duration of the legal relationship" and "time of exercise of subjective right" is substantiated. It is substantiated that the duration of the behavior of the contractors is not always equal to the duration of the legal relationship, because the moment of the relationship does not always coincide with the moment of its implementation. Along with the legal relationship arises not the behavior itself, but only the legal means of ensuring such behavior – a subjective right and legal obligation. So, on the other hand, the time for the exercise of a subjective right coincides with the period of its existence. Given that the temporal factors in the protection of law have a significant specificity of regulation, a fundamental separation of protective and regulatory material relations. The fact is that it is not always easy to establish a temporal boundary when an intact right passes to a disturbed state. This means that there are certain problems in accessing the appropriate protective tools. Examples of such substitution of concepts and criteria for their elimination are given. The paper also provides a scientific definition of the real essence of the protective relationship, which is that in the case of violation of subjective substantive law there is a different than before, the interaction, which is protective and legal in nature. It includes the material claim of the right holder to the infringer and the corresponding obligation of the latter. It is noted that the forms of implementation of the protection requirement of the holder of the new right may be different, each of them has its own time regulators. For example, a lawsuit is filed for a limited period of time – a statute of limitations, while for operational measures or other out–of–court claims there are special deadlines, or no time limit at all. Therefore, the need for a separate temporal mediation of each of these methods of protective response is emphasized.

scholarly journals ORIGIN OF THE SEPARATE TYPES OF THE GUARANTEE (THE MORTGAGE) LEGAL RELATIONSHIPS

Issues of Law ◽  
2020 ◽  
Vol 20 (4) ◽  
pp. 28-36
Author(s):  
V.G. Rotan ◽  
◽  
S.V. Ochkurenko ◽  
Keyword(s):  
Civil Code ◽  
Legal Relationship ◽  
Direct Operation ◽  
Legal Construction ◽  
The Moment ◽  
Definition Of ◽  
The Right ◽  
The Relationship

In this article it analyzes the regulations of the Civil Code, which relates to the origin of the legal relationship apropos of the guarantee (mortgage).It notices on the variety of the terms, used by the legislators which relates the origin of the guarantee (mortgage) legal relationships. Here the lacks of the legal technique appeared. But the variety of the terms is caused first of all by the complexity of the complex of the legal relationships, which is the legal construction of the mortgage (guarantee). This is why the necessity of the investigation of the origin of the separate types of the mentioned legal relationship appears. At the moment of the conclusion of the agreement of mortgage the legal relationship which substance contains the rights of mortgagee to satisfy its requirement, guaranteed by the mortgage, appears only as the relationship, which has the frame character, because the standard of law, which is the base of the legal relationship has not the signs of the direct operation. Other legal relationships, which are the part of the legal construction of the mortgage, appear both at the moment of the conclusion of the agreement and later at the coming of the appropriate judicial cases. The definition of the moment of the origin of the separate types of the guarantee( mortgage) legal relationship allow to bring in these relationship the necessary legal determination and to choose correctly the means of the defense of the right of participants of the proper relations.

scholarly journals Influence of Subjective Civil Rights Protection on the Dynamics of Contractual Obligations

2019 ◽  
pp. 67-79
Author(s):  
Oleh OMELCHUK
Keyword(s):  
Civil Rights ◽  
Stages Of Change ◽  
Scientific Article ◽  
Legal Rules ◽  
Legal Relationship ◽  
Person Features ◽  
Contractual Obligations ◽  
The Moment ◽  
The Right ◽  
Self Protection

The scientific article explores the influence of methods of protection of subjective civil rights on the dynamics of contractual binding legal relations. Scientific approaches to understanding the concepts of «protection» and «protection of civil rights» have been identified. Reference is made to the relevance of the concept of «protection of civil rights» as the application of a system of methods provided for by law aimed at «termination of violation, restoration or recognition of a civil right or compensation of damages caused to the entitled person». Features are described and the concept of ways to protect subjective civil rights is defined. The concepts of «means of protection» and «measures of protection» are distinguished. Special and general ways of civil rights are described. It is concluded that special ways of protecting civil rights are provided for in the legal rules governing specific legal relations, in particular with regard to contractual binding legal relations. It is determined that civil law grants every person the right to protection of his civil right in case of its violation, non-recognition or challenge. It is stated that certain types of contractual obligations apply means of protection, which are measures of liability. The relationship between «operational measures» and «methods of self-protection» has been studied, and it has been determined that operational measures are a form of self-protection methods, as they have a number of common features. It has been proven that any legal relationship is in the dynamics associated with legal facts from the moment of its occurrence to the moment of termination, which are mostly distant from each other in time and space. It is justified that both general and special ways of protecting civil rights are possible at the stage of the establishment of a contractual binding legal relationship. Along with the emergence of a legal relationship, the stages of change and termination of the legal relationship occupy a place.

scholarly journals On the issue of restriction of individual rights in civil law. Correlation between the concepts of restriction and encumbrance of civil rights

2021 ◽  
pp. 146-150
Author(s):  
V.M. Marovdi
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Fundamental Principle ◽  
Individual Rights ◽  
Basic Law ◽  
National Legal System ◽  
Definition Of ◽  
The Right ◽  
The Relationship ◽  
Work First

In this article the author considers the concept of restriction of individual rights in civil law, as well as the re-lationship between the concepts of restriction and encumbrance of civil rights. First of all, the lack of a legislative definition of the concept of restriction of individual rights in civil law, as well as the ambiguity of the position of the legislator on the use of the term restriction and its place among related conceptsIn writing this work, first of all, attention was paid to the Constitution of Ukraine, which is the Basic Law, which serves as a guide that establishes the general boundaries of human and civil rights. The connection of the provisions of the Constitution with the norms of the Civil Code of Ukraine within the framework of the chosen topic was presented. Emphasis is placed on the fundamental principle according to which the national legal system is built, namely: “everything is allowed that is not expressly prohibited by law.”The views of some scholars who adhere to their vision of the concepts under study are given. In addition, in this study, the relationship between the concepts of restriction and encumbrance of individual rights in civil law. In the process of writing this work, the positions of legal scholars who had relatively similar positions were given. They distinguish between the above concepts, and provide the relevant features. However, outside the scope of this study were many works of scientists who do not see a difference in these concepts.None of this was left out of the regulatory framework for the definition of the above concepts at the legislative level. In particular, it was found that in contrast to the concept of restriction of individual rights, including in civil law, the current legislation contains a definition of encumbrance. There are several acts that provide this definition. And in all cases, the definition is different.Based on the analysis of regulations, it was found that the legislator does not consistently approach the definition of encumbrance. In particular, in some cases the latter includes the encumbrancer’s right to the debtor’s movable property or restriction of such right, in others - prohibition or restriction of disposal and / or use of real estate, and in some cases the legislator identifies encumbrances and restrictions.According to the results of the study, the conclusions on the failure to define in national law the concept of re-strictions on the rights of persons in civil law, as well as the lack of a clear distinction between the concept of restric-tion of the right of person and encumbrance, in particular under civil law. There is a position on the need for further research on relevant topics, which will ensure clarity and clarity of the law, and promote its effective application, as well as consensus on this issue among scholars.

scholarly journals Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

2021 ◽  
pp. 240-262
Author(s):  
V. G. Golubtsov ◽  
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Modern Science ◽  
Legal Regulation ◽  
Public Law ◽  
Procedural Law ◽  
The One ◽  
The Right ◽  
Substantive Law ◽  
The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

scholarly journals The Subject Matter of the Lawsuit as a Feature Individualizing the Lawsuit

Lex Russica ◽  
2021 ◽  
pp. 61-72
Author(s):  
V. N. Ivakin
Keyword(s):  
Subject Matter ◽  
Point Of View ◽  
Legitimate Interest ◽  
Legal Relationship ◽  
The Subject ◽  
The Law ◽  
Definition Of ◽  
The Right ◽  
Substantive Law

The question concerning the concept of the subject matter of the claim, which is one of the features that individualize the claim, is one of the most disputable and unsettled in the doctrine devoted to the claim. A number of legal scholars define the subject matter of the lawsuit as the substantive law claim of the plaintiff against the defendant. However, this definition cannot be accepted as correct, since, first, petitioners bring claims that cannot meet the above requirement (for example, claims for recognizing transactions as invalid), and, second, the statements of claim filed with the court contain demand (request) for the court, rather than a claim against the defendant.According to another point of view, the subject matter of the claim should be understood as the subjective right indicated by the plaintiff and the corresponding obligation or civil legal relationship in general, about which the court must make a decision. It is also impossible to agree with the above definition of the subject matter of the lawsuit in view of the fact that, as A. A. Dobrovolsky correctly noted, the law provides that the statement of claim must indicate the plaintiff’s claim rather than the disputed legal relationship. We should also agree with the argument given by G. L. Osokina, according to which the logic and practice of the statement of claim for the defense dictate the need to include a subjective right or legitimate interest in the basis of the claim, and not in its subject matter. According to the point of view of K. S. Yudelson, the subject matter of the claim is the requirement to the court to protect the right in the form that corresponds to the stated requirement. However, since this definition is too general, it cannot be used to resolve the issue of the equivalence of claims. The definition of the subject matter of the claim as protection (V.N.Scheglov) or a method of protecting the right (G.L. Osokina) also have the similar drawback. The most correct is the definition of the subject matter of the claim as the protection of a subjective right, freedom or legitimate interest through the specific application of one of the methods provided for by law or the direct exercise of the right that the plaintiff asks the court about.

scholarly journals THE JURIDICAL NATURE OF TERMINATION OF SUBJECTIVE CIVIL RIGHT

2020 ◽  
Vol 33 (20) ◽  
pp. 47-52
Author(s):  
V.Ya. Pohrebniak
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Point Of View ◽  
Subject And Object ◽  
Definition Of ◽  
Structural Connection ◽  
The Right ◽  
The Relationship ◽  
Complex Influence

The article is devoted to the consideration of the essence of termination of subjective civil right as juridical possibilities of appropriate person ensured by provisions of civil law of Ukraine. Ignoring the widespread understanding of termination of subjective civil right as the termination of its belonging to a person the author proposes an alternative point of view on this problem. The independent character of appropriate phenomenon determines the necessity of designation the essence of its termination as an element of juridical reality. In this context, the termination not always mean the termination of belonging of appropriate subjective civil right to a person. The problem is researched by the author in the context of structural connection between elements of juridical construction of civil relationship and terminative influence of juridical facts over them. Particularly the order of termination of the subjective civil right related to its realization and to a waiver of it is analyzed. Considerable attention is paid to termination of the subjective civil right that is the result of the termination of a subjective civil obligation that corresponds to such right, termination of subject and object of relationship. The author also determines juridical schematizations related to the complex influence of terminative circumstances over civil relationships. The content of the sign of absolute termination of a subjective civil right is concretized in the article. It is defined that it means termination of subjective civil right absolutely, but not the only termination its belonging to bearer. The termination of subjective civil right doesn’t relate to its emergence at another person that is the transfer of the right. It is defined that termination of subjective civil rights also characterized by finality. This characteristic concretizes juridical situations in which appropriate juridical consequences appear. Finality means that the termination of the right doesn’t provide its renascence at the appropriate person in concrete circumstances of the juridical situation. The article contains the author’s definition of termination of subjective civil rights. Keywords: termination of right, termination of the relationship, waiver of a right, the realization of right, absolute termination, finality termination.

scholarly journals Boundary between Religion and Social Conflict —Perspective from the Civil Rights Movement

2018 ◽  
Vol 1 (2) ◽  
pp. 135
Author(s):  
Qiong Li ◽  
Jie Yang
Keyword(s):  
Civil Rights ◽  
Civil Rights Movement ◽  
Social Conflict ◽  
Safety Valve ◽  
Social Stability ◽  
Politics And Religion ◽  
Religious Factors ◽  
The Right ◽  
The Relationship ◽  
Positive Force

<em>Based on the background of American civil rights movement in which religious factors participated, this study analyzes the function of religious factors in civil rights movement from the perspective of political participation and the principle of separation of politics and religion, in order to consider the research paradigm of the relationship between religion and social conflict. It is believed that religious participation is helpful to exert the positive force of social conflict, the right of religious freedom has, to a certain extent, become the “safety valve” of social stability, and the development of religion is the embodiment of social pluralism and symbiosis.</em>

scholarly journals Modernizing slavery : investigating the legal dimension

1999 ◽  
Vol 73 (3-4) ◽  
pp. 5-26 ◽  
Author(s):  
Mary Turner
Keyword(s):  
Civil Rights ◽  
Slave Labor ◽  
Labor System ◽  
The Moment ◽  
The Right ◽  
Free Status

Reviews the laws devised by the imperial government to dismantle the slave labor system in the period 1823-38 in order to locate the moment of articulation between chattel and wage slavery. According to the author, the distinguishing feature of these new laws was that the workers lost the right to labor bargaining. Abolition brought free status and civil rights, but the new labor system was not less rigorous.

scholarly journals PARABOLIC KAZHDAN–LUSZTIG BASIS, SCHUBERT CLASSES, AND EQUIVARIANT ORIENTED COHOMOLOGY

2019 ◽  
Vol 19 (6) ◽  
pp. 1889-1929
Author(s):  
Cristian Lenart ◽  
Kirill Zainoulline ◽  
Changlong Zhong
Keyword(s):  
Cohomology Ring ◽  
Flag Varieties ◽  
Special Cases ◽  
Oriented Cohomology ◽  
Schubert Classes ◽  
New Interpretation ◽  
The Moment ◽  
The Right ◽  
Relationship Of ◽  
The Relationship

We study the equivariant oriented cohomology ring $\mathtt{h}_{T}(G/P)$ of partial flag varieties using the moment map approach. We define the right Hecke action on this cohomology ring, and then prove that the respective Bott–Samelson classes in $\mathtt{h}_{T}(G/P)$ can be obtained by applying this action to the fundamental class of the identity point, hence generalizing previously known results of Chow groups by Brion, Knutson, Peterson, Tymoczko and others. Our main result concerns the equivariant oriented cohomology theory $\mathfrak{h}$ corresponding to the 2-parameter Todd genus. We give a new interpretation of Deodhar’s parabolic Kazhdan–Lusztig basis, i.e., we realize it as some cohomology classes (the parabolic Kazhdan–Lusztig (KL) Schubert classes) in $\mathfrak{h}_{T}(G/P)$. We make a positivity conjecture, and a conjecture about the relationship of such classes with smoothness of Schubert varieties. We also prove the latter in several special cases.

“The Right to Lease and Occupy a Home”

2017 ◽  
Author(s):  
Roberta Gold
Keyword(s):  
Public Policy ◽  
New York ◽  
Civil Rights ◽  
Public Housing ◽  
Supply And Demand ◽  
Rental Housing ◽  
Rent Control ◽  
Private Housing ◽  
The Right ◽  
The Relationship

This chapter examines how tenants addressed three public policy questions: public housing, slum clearance, and civil rights. The rent-control statutes that tenants vigorously defended served to moderate prices that would otherwise be set higher by the law of supply and demand. However, many tenants and housers were aware that rent control was a superficial fix. The underlying problem was scarcity of housing and a consequent landlord's market. Therefore from the Depression onward, the city's tenants and their allies also promoted programs to build new rental units and improve old ones. The chapter considers how these efforts extended “New York exceptionalism” in two important ways: expansion of public housing and the opening of a new arena for black struggle. It also explores how New York exceptionalism extended into the private housing market and discusses the relationship between rental housing and black progress. It shows that, by organizing widely and using the courts and formal politics, tenants managed to hold the line on some of the gains they had made before and during the war.

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