scholarly journals Legal Definition of Irresistible Force in the Civil Law of Russia and China

2021 ◽  
Vol 8 (3) ◽  
pp. 93-120
Author(s):  
S. Zimneva ◽  
T. Popova ◽  
H. Siao
Keyword(s):  
Civil Law ◽  
Theoretical Concept ◽  
Republic Of China ◽  
Legal Definition ◽  
Judicial Practice ◽  
Legal Literature ◽  
Force Majeure ◽  
Coronavirus Infection ◽  
Russian Law ◽  
Definition Of

The research focus is on concept of force majeure and irresistible force as a reason to release the parties from liability for failure to perform civil obligations. The authors examine theoretical concept and legal definition of “irresistible force” and its characteristics based on legislation, legal literature and judicial practice of the Russian Federation and the People’s Republic of China. Also, the authors analyze the civil law jurisdictions on irresistible force, relatively to its ambiguity and situation with the spread of the new coronavirus infection (COVID-19) and come to the conclusion that courts in each specific case should establish irresistible force circumstances. The work uses a linguistic (philological) method, in particular, the method of distributive analysis of the terms “irresistible force” and “force majeure.” The article shows that in modern Russian law the expression “irresistible force circumstances” has more efficient terminological potential. The authors propose implementation of “irresistible force circumstances” concept in the Russian Civil Code, which would more accurately reflect the essence of this concept.

scholarly journals COVID-19 as a Catalyst for the Transformation of Contractual and Enforcement Practices

Legal Concept ◽  
2020 ◽  
pp. 31-40
Author(s):  
Yuliya Tymchuk
Keyword(s):  
Civil Law ◽  
Digital Technologies ◽  
Legal Method ◽  
Force Majeure ◽  
Logical Method ◽  
Coronavirus Infection ◽  
Business Entities ◽  
Contractual Obligations ◽  
Settlement Of Disputes ◽  
The Impact

Introduction: the article provides an overview of the impact of the coronavirus pandemic (COVID-19) on treaty and enforcement practices. The most common methods of conclusion of civil-law contracts, as well as problems of fulfillment of contractual conditions, which arose against the background of spread of coronavirus infection, are considered. Legislative innovations were analysed, which led to a change in the procedure for the execution of certain types of civil law contracts, court practice, in which the legal position of the parties was based on arguments about the coronavirus pandemic. Methods: this study used both public science (dialectical method of cognition, analysis, synthesis, formal-logical method, prognostic, etc.) and private science methods (formal-legal, method of legal interpretation, etc.). Results: it is justified to increase the demand for digital technologies in the context of measures taken by the state to prevent the spread of coronavirus infection. New trends in contract practice have been identified and considered. The possibilities of legal qualification of coronavirus as a force majeure, the circumstance that makes it impossible to fulfill obligations, a significant change of circumstances, including taking into account the available judicial practice at the time of writing, have been determined. Online settlement of disputes arising from non-performance of contractual obligations has been proved to be useful. Conclusions: based on the results of the study, the interdependence between the level of introduction of digital technologies into public administration, the judicial system, the economic activity of business entities and the possibility of adaptation to the conduct of current activities in these spheres in the context of the spread of the crown virus has been determined.

scholarly journals THE PROBLEM OF DETERMINING THE LEGAL REGIME OF “DISPUTED” REAL ESTATE: THEORETICAL AND PRACTICAL ASPECTS

2021 ◽  
pp. 19-24
Author(s):  
N.A. Pronina ◽  
T.N. Platunova ◽  
S.O. Kostyakova
Keyword(s):  
Real Estate ◽  
Russian Federation ◽  
Civil Law ◽  
Property Right ◽  
Legal Regime ◽  
Land Plot ◽  
Legal Definition ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article raises the following topical problems currently inherent in the institution of real estate in theRussian Federation: the unsuccessful legal definition of a real estate object, enshrined in Art. 131 of the CivilCode of the Russian Federation; qualification of objects as immovable and, accordingly, delimitation of themfrom movable ones; the emergence of objects with a controversial legal regime; the need to move from themodel of “plurality” to the model of “unity” of real estate objects. Also, the authors of this article analyzea number of approaches aimed at resolving the above problems and the possible consequences (both positiveand negative) of their implementation in practice, put forward their views and offer their own solutionto these problems. A variant of the legalization of “disputable” objects is proposed by introducing the rightof construction into the civil law of the Russian Federation as a limited property right to use a land plot withthe extension of this right to everything that is being built on such a land plot. The examples of legislativeregulation of the right to build in the civil law of pre-revolutionary Russia are considered, the elements of theright to build in the current law of the Russian Federation are revealed.

System of means of individualization of individuals as subjects of civil law

2019 ◽  
Author(s):  
Светлана Лукашевич ◽  
Svetlana Lukashevich
Keyword(s):  
Graduate Students ◽  
Public Services ◽  
Family Law ◽  
Civil Law ◽  
Forensic Identification ◽  
Educational Institutions ◽  
Scientific Representation ◽  
Legal Definition ◽  
Definition Of

In the monograph the complex scientific representation about system of means of individualization of subjects of civil law - physical persons is formulated. the place of Institute of civil-legal means of individualization of the physical person in system of civil law is Defined. The possibility of using methods of forensic identification in civil relations is considered. The necessity of such use and, as a consequence, the need for its legislative consolidation in the framework of civil, business and family law is substantiated. Legal definition of "individualization of physical persons" and "means of individualization", considered the possible classification of such assets and the problems of their application subjects of civil relations, and proposes the main ways to improve this tool. Designed for legal scholars, as well as graduate students, students of educational institutions, practitioners in the field of law and public services. May be of interest to employees of legislative authorities and state bodies.

The Regulation of Subsoil Resource Usage: The Erosion of the "Two-Key" Principle and Its Inclusion into the Framework of Civil Law

2006 ◽  
Vol 31 (1) ◽  
pp. 81-110 ◽  
Author(s):  
Louis Skyner
Keyword(s):  
Civil Law ◽  
Potential Effect ◽  
International Affairs ◽  
Judicial Practice ◽  
New Instrument ◽  
Legal Nature ◽  
Potential Applicability ◽  
The Government ◽  
Petroleum Sector ◽  
Definition Of

AbstractThe article analyses the two main changes in direction in the regulation of subsoil use and management evident in Russia over the past twelve months. The first set of changes—effective as of 1 January 2005—significantly alter the relative authority of federal and regional executive bodies with regards to both the development of licensing programs and the procedures established for issuing the licenses themselves. The author asks whether the transfer of authority to federal executive bodies is realizable in practice, and whether or not the provisions of the Draft Law on subsoil—published by the government in March 2005—suggest that the federal authorities will establish a framework for licensing and the management of use that provides the predictability required by investors. This material was presented at a seminar "Law, Judicial Practice and the Russian Petroleum Sector" held at the Royal Institute of International Affairs in June 2005.The author then goes on to discuss the legal nature and potential effect of a subsoil use contract, the new instrument for regulating subsoil use relations as envisaged by the draft Law "On Subsoil" use, focusing on the security and transferability of the property right that is created. To illustrate what he perceives to be a general reluctance of the state to allow the transfer of forms of use right to be free from administrative control, comparisons are made with the uneasy balance of civil and administrative law regulations in product sharing agreements, and the problems in enacting the civil law transfer of other natural resources such as agricultural land.The article concludes by discussing the potential applicability of the provisions of the Draft Law on subsoil, the possible consequences of the failure of the Draft Law to define the grounds upon which executive bodies may develop criteria to restrict or terminate the rights of the user, and the general absence of a clear definition of the function and competence of different state bodies.

scholarly journals The concept and legal nature of corporate relations: the position of doctrine and judicial practice

2020 ◽  
pp. 290-295
Author(s):  
Borys Soloviov
Keyword(s):  
Civil Law ◽  
Legal Protection ◽  
Critical Issue ◽  
Association Agreement ◽  
Corporate Rights ◽  
Judicial Practice ◽  
Legal Nature ◽  
Critical Problems ◽  
The Subject ◽  
Definition Of

Nowadays the processes of democratization, liberalization, integration of Ukraine into European and world space take place. Theundisputed significance for these processes is the signing of the Association Agreement between Ukraine and the European Union.Thus, the rapprochement of Ukraine with the European community, which has taken place in recent years, affects the sphere of privatelaw relations, which make up the subject matter of civil law. Taking all mentioned above into account corporate relations and its nationalregulation is critical issue for analysis.The provisions of national legislation regarding the definition of corporate rights and respective legal relations are analyzed. Specialattention is paid to the position of the civil law doctrine representatives in terms of legal nature and features of corporate legal relations.Analysis of current doctrine gives ground to state that corporate relations are considered to be a special type of civil legal relationsthat make up the subject of civil law. At the same time recognition of corporate relations as a type of civil ones makes it possible to useall the civil law tools and mechanism of legal protection and enforcement for corporate relations regulation.The relevant practice of the highest judicial bodies of Ukraine is analyzed. The analysis of the legislation and judicial practicehas given an opportunity to stress some problems that need to be eliminated. To our mind, one of the main problems is “fragmentation”of the legislator’s attention to the definition of corporate legal relations, which creates the ground for numerous discussions. At the sametime there are critical problems in judicial practice. For instance, we cannot agree with the Supreme Court’s attempts to find corporatelegal relations in those types of legal entities in which such legal relations do not take place at all.It is crucial to stress that recodification of civil legislation in Ukraine has its direct impact on private legal relations system andits mechanism of legal regulations.

scholarly journals Theft vs find: theoretical and practical issues

2021 ◽  
Vol 2021 (3) ◽  
pp. 121-130
Author(s):  
Nikolay Ryabinin ◽  
Kseniya Filipson
Keyword(s):  
Russian Federation ◽  
Criminal Code ◽  
Civil Code ◽  
Theory And Practice ◽  
Controversial Issues ◽  
Main Research ◽  
Legal Definition ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Definition Of

The purpose of the study is to analyze the features of legal relations regulated by Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation, as well as to identify and resolve the problems related to the proper legal definition of these relations. The main research methods are: structural-system, methods of logical analysis and synthesis, formallegal, comparative-legal, as well as collecting information through the study of scientific periodicals and materials of judicial practice on this issue. The article discusses in detail the features of the delimitation of relations arising in accordance with Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation. The authors note that in the theory and practice of both criminal and civil law, one of the most controversial issues is the problem of differentiating a criminal offense under Art. 158 of the Criminal Code of the Russian Federation and acts that are not such (Article 227 of the Civil Code of the Russian Federation). So, to date, there is no consensus about the signs of differentiation of these compositions, and the criteria that have been developed at the present time are very vague and contradictory. Misinterpretation and application of norms when qualifying relations in accordance with Art. 158 of the Criminal Code of the Russian Federation and Art. 227 of the Civil Code of the Russian Federation does not allow citizens to protect effectively their rights and legitimate interests. Therefore, in order to prevent violations of civil rights, it is necessary to conduct a comprehensive scientific study of the features enabling to differentiate the above mentioned relations. Considerable attention is paid to the problem of appropriation of the found someone else’s property, when this property has identifying features. The authors define the types of property in the possession of the owner or any other type of legal owner, and also disclose the main characteristics of the specified property. In addition, the article formulates the authors’ definitions of such concepts as «finding» and «appropriation» of what was found. Based on the analysis of judicial and investigative practice, the authors propose the following recommendations for changing the legislation and the practice of its application in order to resolve controversial issues arising from the qualification of crimes against property. First, it is necessary to make clarifications in the resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 20 «On judicial practice in cases of theft, robbery and banditry» which property should be recognized as being in the possession of the owner or other legal owners and determine the characteristic features of such property ... Secondly, it is necessary to formulate and consolidate the legal definition of a find in the Civil Code of the Russian Federation. Thirdly, to return into Chapter 21 of the Criminal Code of the Russian Federation «Crime against property» the part «Appropriation of the found property».

scholarly journals The Concept of Economic Activity in Contemporary Law of Russia

Lex Russica ◽  
2020 ◽  
Vol 73 (6) ◽  
pp. 61-67
Author(s):  
I. I. Shuvalov
Keyword(s):  
Law Enforcement ◽  
Economic Activity ◽  
Civil Law ◽  
Third Parties ◽  
Spiritual Needs ◽  
Economic Basis ◽  
Production Distribution ◽  
The Russian Federation ◽  
Russian Law ◽  
Definition Of

The paper is devoted to the study of the category “economic activity” used in modern Russian law. Theauthor notes that, despite the absence of a legal definition of this category, it is used in the current legislation of the Russian Federation (civil, criminal, administrative and other branches of legislation, including legislation regulating procedural issues). The legislative gap under consideration creates problems in law enforcement, which the judiciary draws attention to: the lack of definition of the concept under review makes it difficult to establish jurisdiction, since any activity of the participants of relations regulated under civil law has an economic basis. However, a number of documents contain a description of economic activity. In the doctrine, the category “economic activity” is mainly investigated by academic economists, lawyers pay little attention to the consideration of this concept. The few legal doctrinal statements and attempts made by the judiciary to define it are insufficient to fully understand economic activity in the context of law. The paper analyzes doctrinal and judicial approaches to the content and characteristics of economic activity, attempts to define the concept under consideration. The author considers that the concept "economic activity" refers to the commission of legal actions by the actors at various levels of management aimed at production, distribution, exchange and consumption of goods through the use of their or attracted skills and assets to meet their (or third parties) material and spiritual needs. At the same time, the characteristic of professionalism used in the doctrine should be used to differentiate economic activity carried out in active and passive forms. 

scholarly journals Peculiarities of Protection of Rights and Interests of Heirs: Theoretical Aspects

2020 ◽  
Vol 10 ◽  
pp. 355-362
Author(s):  
Yuri O. Zaika ◽  
◽  
Oleksandr Ye. Kukhariev ◽  
Volodymyr L. Skrypnyk ◽  
Aliesia A. Mytnyk
Keyword(s):  
Civil Rights ◽  
Scientific Community ◽  
Civil Law ◽  
Inheritance Law ◽  
Legal Literature ◽  
Legal Nature ◽  
The Will ◽  
Methodological Approaches ◽  
Definition Of ◽  
The Right

The relevance of this study is due to the necessity to ensure the proper exercise of subjective civil rights in the field of inheritance law. Protection in inheritance is related to the general right to protection. Due to the peculiarities of inheritance law as a sub-branch of civil law, it has its own specifics, which is manifested primarily in the definition of special ways to protect violated unrecognized or challenged rights. In addition, the protection of the rights of heirs takes place only within the inheritance relationship, which is characterized by a long nature. The purpose of the article is to identify the features of protection of subjective civil rights of heirs in the field of inheritance. This necessitates the use of special methodological approaches that will identify the characteristics of protection of the rights of heirs, as well as research methods such as dogmatic, formal-logical, systematic, comparative law. The article analyses the recognition of the right of ownership of inherited property in court and proves that this exceptional method of protection is used if there are obstacles to the notarization of inheritance rights. The most typical and widespread special ways to protect the rights of heirs are considered: removal from the right to inherit, invalidation of the will, change of the order of obtaining the right to inherit, reduction of the size of the obligatory share in the inheritance. The outlined issues were not widely covered in the legal literature, as the attention of scholars was mainly in the perspective of clarifying the legal nature of protection and defence, the ratio of forms and methods of protection of subjective civil rights, analysis of general methods of protection of subjective civil rights. That is why this work is an important contribution to outlining the issue of inheritance law and attracting due attention of the scientific community.

scholarly journals The Procedure for the Official Publishing of Regulatory Legal Acts as a Source of Russian Law

2021 ◽  
pp. 13-17
Author(s):  
Olesya Kazantseva
Keyword(s):  
Law Enforcement ◽  
Scientific Article ◽  
Official Publication ◽  
Legal Definition ◽  
Russian Law ◽  
The Law ◽  
Definition Of

The article is aimed at the study of the procedure for publishing of regulatory legal acts in accordance with Russian legislation. Normative legal acts affecting the rights, freedoms and duties of man and citizen are the most important source of Russian law and should be officially published. It is with this fact that the law connects their entry into force. Given that there are no legal definitions of a regulatory legal act, official text, publication, problems arise in law enforcement practice. In addition, the diversity of normative acts by the level of their adoption indicates the diversity of sources of their official publication. This scientific article has been delivered in order to determine the rules for the publishing of laws and other regulations, national and international documents. The author concludes that it is necessary to improve legislation in field and the legal definition of the concepts under study.

scholarly journals Establishment of things

2006 ◽  
Vol 78 (9) ◽  
pp. 413-441
Author(s):  
Janko Kubinjec
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Property Law ◽  
Human Relationship ◽  
Legal Concept ◽  
Legal Definition ◽  
The Law ◽  
Definition Of

Legal concept of person is to be constituted, while the legal concept of thing is to be established. Legal concept of thing is a metaphysical category that shall be differentiated from the positive-legal definition of thing as an empirical phenomenon, as well from the natural thing, which is also as an empirical phenomenon. Legal concept of thing is a spiritual phenomenon, which belongs to the field of objective spirit. The thing is the basis for the entire civil law. The wrong conclusion that civil law starts with ownership and ownership with possession, is based on the so called naturalistic error. For the title, the thing is primarily a freedom for the person, while the mortgage is the border with which the owner is confronted. At the point where freedom overflows from person to thing we have erga omnes effect of property rights. It is not possible to clearly and materially differentiate person from the thing without defining the law as the freedom, and without making this distinction, the persons can also be defined as res cogitans. In the property law, the essence is manifested through the human relationship. In the law of the contracts and torts the thing is neglected up to the point where we come to property, and point where property becomes the claim. If, in addition to that, directly natural refutation of things is produced, we are faced with the legal concept of damages. In the authentic law, the succession is always the concept pertaining to things and only in the non authentic law it may be the concept pertaining to persons.

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