scholarly journals The right to property and the right of trust property (on the way to recodification of the civil legislation of Ukraine)

2021 ◽  
pp. 69-75
Author(s):  
O. M. Soloviov
Keyword(s):  
Social Relations ◽  
Legal System ◽  
Tax Evasion ◽  
Civil Law ◽  
Regulatory Function ◽  
Legal Institution ◽  
Negative Experience ◽  
History Of ◽  
Trust Property ◽  
The Right

The article examines the socio-economic background of the introduction of trust and other trust-like structures in the legislation of Ukraine. As a result of considering the history of the origin of the institution of trust and a systematic analysis of the provisions of domestic civil legislation, reasoned conclusions were formulated on the issues studied. The given short historical retrospective of attempts to introduce trust property and trust-like constructions into the legislation of Ukraine allows to state that they almost always led to "unworthy", negative social, financial and economic results. The question of the purpose of ignoring one's own negative experience of implementing trust-like structures in the domestic civil legislation is reasonable. Isn't it better, remembering the functions of the science of civil law, to draw the right conclusions from this experience and rely on them in their further law-making activities?! The article draws attention to the experience of using the construction of trust and trust property in the Anglo-American legal system (which, unlike ours, is calculated for centuries), and establishes that this legal institution in addition to legitimate purposes (which are charity, preservation of property from waste, formation of pension funds, etc.), is extremely popular as a means of achieving illegal and negative social results (for example, such as tax evasion, abuse of tax rates, concealment of property and income, legalization of property obtained as a result of committing crime, concealment of illegal funding of political parties and their leaders, etc.). It is obvious that the blind borrowing of someone else for the domestic legal system and the archaic institution of trust property will lead to the penetration into our legal reality of all its inherent shortcomings. Law is a regulator of social relations (and economic in particular). In this case, public relations are primary, and law - secondary. Only those civil law institutions properly perform the regulatory function that determines their existence, which are in demand throughout the history of economic relations and necessary for society as a prerequisite for its normal existence and development. If social relations have not developed, then is there a need to create "artificial" legal institutions or to borrow legal structures generated in the bosom of other legal systems to regulate relations that have developed in the age of feudalism?! These circumstances must be taken into account in any attempts to improve the acts of civil law, and in recodification, including. The question of the sufficiency (or insufficiency) of the socio-economic base for the introduction of the institution of trust in Ukraine should be categorized as rhetorical. Trust construction is just a legal tool. And the result of its application will depend on the quality of regulatory "material" proposed by the legislator (and he, in turn, representatives of the doctrine of civil law), on establishing the place of this legal institution in the civil law system, and creating legal barriers that minimize it use to achieve a socially negative effect.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

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.

scholarly journals Trust and Patrimony

2014 ◽  
Vol 38 (2) ◽  
pp. 379-403 ◽  
Author(s):  
Lionel D. Smith
Keyword(s):  
Legal System ◽  
Common Law ◽  
Third Party ◽  
Legal Person ◽  
Fundamental Change ◽  
Legal Institution ◽  
Personal Rights ◽  
The Common ◽  
Trust Property

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.

scholarly journals PERLINDUNGAN HUKUM TERHADAP NOTARIS PENGGANTI YANG AKTANYA BERMASALAH DITINJAU DARI UNDANG-UNDANG NOMOR 30 TAHUN 2004 JUNCTO UNDANG-UNDANG NOMOR 2 TAHUN 2014 TENTANG JABATAN NOTARIS

Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 20-27
Author(s):  
Arif Hidayat
Keyword(s):  
Criminal Law ◽  
Tax Evasion ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Civil Law ◽  
Criminal Offense ◽  
Actual Reality ◽  
State Administration ◽  
The Law ◽  
The Right

Notary in making an authentic deed must be able to account for the deed if it turns out that in the future problems arise from the authentic deed both in terms of criminal law, civil law or State administration. The problems arising from the deed made by the Notary need to be questioned whether it is the result of an error from the Notary or the error of the viewer who does not provide information in accordance with the actual reality to the Notary. Such negligence or error can occur because the Notary in question is lacking or does not understand the construction or legal actions desired by the viewer so that the deed made is contrary to the provisions of the law. Such negligence or error can also be deliberately carried out by the concerned Notary. This study focuses on Law Number 30 Year 2004 as amended by Law Number 2 of 2014 concerning Notary Position wherein this study discusses the Notary who is unable to carry out his position so he has the right to submit written leave request and at the same time accompanied by the appointment of a substitute notary. After a while, a lawsuit from a party that feels aggrieved results from the deed made by Si X as a Substitute Notary. The results of this study concluded that a notary who leaves as a substituted notary has responsibility for the deed made by his successor notary even though he is on leave from his position where the responsibility is in the form of civil liability, if the substitute notary commits an error within the scope of authority given by a notary to a substitute notary. So in that case the notary is also liable for losses suffered by the parties due to the deed made by the substitute notary. Because the notary who is replaced is the owner of the office, if the notary of origin will file leave then he will appoint an employee from his own office as a substitute notary. Criminal responsibility, in the case of a criminal offense, a notary who is replaced is not responsible, for example in the case of tax evasion. Criminal liability can only be imposed on a substitute notary if he makes a mistake outside his authority as a substitute notary. Then the notary whose leave cannot be held accountable. The substitute notary is also entitled to get the same protection and legal guarantees because every citizen has the same rights before the law.

scholarly journals Features of ancient Roman jurisprudence of the classical period and its place in the history of the state of Ancient Rome

2021 ◽  
pp. 4-14
Author(s):  
Vira Okorokova ◽  
◽  
Olena Koicheva ◽  
◽  
Keyword(s):  
Legal System ◽  
Civil Law ◽  
Legal Protection ◽  
Ancient Rome ◽  
Legal Analysis ◽  
Mobile System ◽  
Traditional System ◽  
Imperial Rome ◽  
History Of ◽  
Political Conditions

The article is devoted to the study of Roman jurisprudence during its heyday. Scientific novelty is expressed in the analysis of legal innovations that were developed by such lawyers of this period as (Gaius (II century BC), Papinian (II–III centuries), Paul (II–III centuries), Ulpian (II–III century) аnd Modestin (II–III centuries). Despite the great importance of the works of these jurists, their study does not differ significantly from a number of studies. The article points to the continuity in the history of Roman jurisprudence, which is manifested in the gradual registration of jurisprudence in a separate field, which has its own needs and requirements for the activities of jurists, their training and more. Historical and legal analysis of the activities of these lawyers indicates a certain evolution of jurisprudence from the rigid traditional system of queer law to a more mobile system of civil law, which was adapted to the new socio-economic and political conditions of ancient Rome. Jurisprudence gradually in the conditions of imperial Rome is made out in separate legal institute that provides not only consultations on these or those transactions, but also legal protection. The authors draw attention to the fact that the activity of lawyers was the defining stage that laid the foundations for further transformation of the legal system, its reception in some Western European countries of subsequent historical epochs.

scholarly journals History of codification of private law in the Republic of Moldova

2021 ◽  
pp. 8-28
Author(s):  
Gheorghe Avornic ◽  
◽  
Violeta Cojocaru ◽  
Iulian Moraru ◽  
◽  
...  
Keyword(s):  
Social Relations ◽  
Civil Law ◽  
Public Law ◽  
Private Law ◽  
Historical Aspects ◽  
Republic Of Moldova ◽  
History Of ◽  
Ancient Times ◽  
The Republic ◽  
The One

The division of the entire system of law into public law and private law comes from ancient times, which we have referred to in several previous personal publications. In this article we will analyze the evolution of private law in the Republic of Moldova. Private law constitutes one of the fundamental subdivisions of the science of law as a whole. At the level of the Republic of Moldova, the subdivision in question represents a distinct specific in the context that: (i) it is stratified into numerous branches of law and (ii) it constitutes a symbiosis of several national, supranational and international private legislations that correspond to modern trends of evolution of related social relations. One of the main branches of domestic private law is civil law, namely the rules tangent to the branch of law in question regulate a considerable number of social relations varied in terms of structure and content. This article will briefly address evolutionary-historical aspects of the private law legislation of the Republic of Moldova. In particular, we will analyze the influence of the Model Civil Code of the CIS States, on the one hand, and European legislation, on the other. Historical aspects will be divided into three periods.

ON THE QUESTION OF THE STRUCTURE OF INHERITANCE LAW

2021 ◽  
Vol 14 (2) ◽  
pp. 59-67
Author(s):  
EKATERINA KHODYREVA ◽  
Keyword(s):  
Legal System ◽  
Civil Law ◽  
Central Place ◽  
Legal Regulation ◽  
Inheritance Law ◽  
Law System ◽  
Legal Norms ◽  
The Subject ◽  
The Right ◽  
Civil Law System

In the present article, the author considers various doctrinal judgments on the question of what constitutes inheritance law and what place it occupies in the legal system. The purpose of the research is to determine the structural divisions of the sub-branch of inheritance law and substantiate the view on the recognition of inheritance law as a sub-branch of civil law with the designation of its inherent institutions and subinstitutions. Results. Based on the results of the study, the author came to the conclusion that inheritance law, taking into account the content of the legal norms forming it, can only be recognized as a sub-branch of civil law. There are no sufficient grounds to consider inheritance law as an institution of civil law or as an independent legal branch as a structural unit of the legal system. Due to the subject of legal regulation, inheritance law is separated from other sub-sectors in the civil law system. Taking into account the specifics of the subject and method of legal regulation, the sub-branch "inheritance law" is subject to further differentiation into its constituent institutions and sub-institutes. It is concluded that it is necessary to distinguish five main institutions within the studied sub-sector, the central place among which belongs to the institute of inheritance law. The legal norms of this institution are currently dispersed in separate chapters of section V of the Civil Code of the Russian Federation and cover the specifics of regulating both hereditary and some related legal relations. It is this diversity to be included in the Institute of law of inheritance relations allows to conclude on the need for it subinstitute three: hereditary sub instructions, sub succession and sub the exercise of the right of inheritance.

scholarly journals Assisted reproductive technologies as a legal category

2021 ◽  
pp. 155-163
Author(s):  
Oksana Pokalchuk
Keyword(s):  
Social Relations ◽  
Assisted Reproductive Technologies ◽  
Civil Law ◽  
Reproductive Technologies ◽  
Legal Aspects ◽  
Moral Rights ◽  
Legal Doctrine ◽  
Legal Concept ◽  
Wide Range ◽  
The Right

Keywords: moral rights, assisted reproductive technologies, legal category The author analyzes the legal concept of «assisted reproductive technologies», which is presentedin the works of Ukrainian and foreign scientists. Given the nature and essence of theuse of assisted reproductive technologies as social relations, the author concludes thatthe main part of the researches belongs to the Civil Law branch of scientific knowledge.It is because the right to assisted reproductive technologies is a part of the system ofmoral rights which are the part of the regulation of Civil Law. At the same time, withinthe legal literature the doctrinal understanding of assisted reproductive technologieshave rather multifaceted, but ambiguous nature of its' scope.Thus, the content of the views of scientists which are analysing in the article, reflectsthe provisions on: a) the functional purpose of assisted reproductive technologies; b) thecontent of their application in the determined cases; c) their instrumental understandingas a set of manipulations (methods, techniques, etc.); d) the exceptional importance of these technologies as the main means of overcoming infertility and solving demographicproblems of today; e) innovative nature of use in the medical field.In addition, at the level of modern legal doctrine, the scientific researches of legal aspectsof assisted reproductive technologies is multi-vector, especially in terms of studyingtheir medical and legal nature, content and consequences, accompanied by increasingrelevance of their knowledge under the influence of rapid medical development, inventionand implementation of new medical technologies, including in the field of human reproduction.Generally modern scientific researches on the legal aspects of assisted reproductivetechnologies is represented by a wide range of scientific works, but most of them aremulti-vector in nature, and scientific conclusions are mostly scattered and not systematized.In fact, the «harmony» of the conceptual and categorical apparatus for assisted reproductivetechnologies is important for the formulation of a scientific problem and thedefinition of methods for its further resolving.

scholarly journals Failed Interventions: Domestic Violence, Human Trafficking, and the Criminalization of Survival

2020 ◽  
pp. 315
Author(s):  
Alaina Richert
Keyword(s):  
Domestic Violence ◽  
Human Trafficking ◽  
Legal System ◽  
Criminal Behavior ◽  
Essential Elements ◽  
State Legislators ◽  
Systematic Overview ◽  
History Of ◽  
The Right

Over the last decade, state legislators have enacted statutes acknowledging the link between criminal behavior and trauma resulting from domestic violence and human trafficking. While these interventions take a step in the right direction, they still have major shortcomings that prevent meaningful relief for survivor-defendants. Until now, there has been no systematic overview of the statutes that require courts to consider a defendant’s history of trauma in the contexts of domestic violence and human trafficking. There has also been no attempt to explore how these statutes relate to each other. This Note fills those gaps. It also identifies essential elements future statutory interventions in these contexts must include in order to grant effective relief to survivor-defendants. These reforms are essential to create a legal system that does not criminalize surviving domestic violence and human trafficking.

scholarly journals Les réactions de la doctrine à la création du droit civil québécois par les juges : les débuts d'une affaire de famille

2005 ◽  
Vol 21 (2) ◽  
pp. 257-275 ◽  
Author(s):  
Pierre-Gabriel Jobin
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Turning Point ◽  
Common Law ◽  
Civil Law ◽  
Legal Issues ◽  
Full Time ◽  
History Of ◽  
Local Traditions ◽  
Legal Writers

The middle of the twentieth century marked a turning point in the history of scholarly writings on the civil law in Québec. The emergence of a full-time teaching body in the law faculties entailed consequences of primary importance: publications gained not only in quantity, but also in quality and diversity and, in particular, the reactions of legal writers to judge-made law became frequent and substantial. The relations between legal writers and judges illustrate, here as elsewhere, the particular situation of the Québec legal system at the crossroads of civil law and common law. For instance, due to the British-inspired method of appointing judges and some local traditions, judges are personally known to many professors. Furthermore, decisions of the courts, most of the time, are written in a learned style, the merits of the legal issues being discussed and doctrinal opinions being quoted with approval or criticism. These relations between the writers and the judiciary may explain the great interest of legal writers in judge-made law and their perhaps insufficient sense of critical responsibility vis-à-vis that law. Legal writers and judges have the great advantage of speaking the same language and of maintaining a dialogue — an advantage which benefits law itself and the whole community.

scholarly journals The Trust Property Law: integration of obligatory and proprietary elements

2020 ◽  
pp. 84-93
Author(s):  
Oksana Kiriiak
Keyword(s):  
Civil Law ◽  
Careful Analysis ◽  
Legal Regulation ◽  
Property Law ◽  
Trust Relationship ◽  
Theoretical Approaches ◽  
Legal Obligations ◽  
Trust Property ◽  
Definition Of ◽  
The Right

The article examines the complex institution of civil law of Ukraine «the right of trust», which combines the features of classical property and legal obligations. The study of trust property right should be considered as a new main highway direction in the whole science of civil law. At the same time, the lack of thorough research on the issues of empirical awareness and practical application of trust property law does not allow this article to cover all the problematic aspects of the implementation of this institution. In this regard, the author deliberately narrows the object of research to the analysis of various theoretical approaches to understanding the essence of trust property at the present stage, which, in our view, is crucial for the formation of the vector of further research in this area. The implementation of a new comprehensive institution of trust property inevitably requires immediate editorial transformation of legislative acts, which is unjustified without thoughtful borrowing of foreign experience in legal regulation of the studied relations, including in its historical retrospect, careful analysis of all errors and «non-working» norms that have been made in recent years in the law of foreign countries. As a result of the analysis, three main scientific and theoretical approaches to the definition of the essence of the right of trust were identified: 1. Obligatory approach (from the Latin obligatoria – obligations, security), whose representatives defend the view that a trust relationship, as binding, is characterized by the satisfaction of the interests of the authorized person by committing certain mandatory actions related party in respect of certain property belonging to the principal. 2. Respossessional approach (from the Latin res – thing, possessio – possession), whose representatives emphasize the purely material nature of trust, because, according to them, the powers of the trust owner, which is opposed by an indefinite number of persons constructed according to the scheme, which is similar to the powers of the owner and therefore can’tbe anything other than limited property rights. 3. Combinatorial approach (from the Latin combinant –- to combine, combine), whose representatives emphasize that the relationship of trust is currently at the junction of binding and material relations and therefore all the arguments of connoisseurs of previous trends here offer to use not as mutually exclusive or contradictory, but, conversely, complementary criteria. Key words: trust property, the right of trust property, trust relationship, property relationship, legal relationship.

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