scholarly journals Mantojuma līguma sekas un to juridiskā daba

2021 ◽  
pp. 228-234
Author(s):  
Alise Reide ◽  
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
The Right ◽  
Land Register

According to Article 639 of the Civil Law, with an inheritance contract one party (an estate-leaver) grants the rights to his future inheritance or its part to another party (a contractual heir). As the inheritance contract establishes only a future invitation to inherit, it grants to the contractual heir only the right to wait for his future inheritance, but not an immediately effective right to the present property of the estate-leaver. However, the right of the estate-leaver to dispose of the movable and immovable property bequeathed by the inheritance contract can be restricted. If the inheritance contract concerns immovable property and it has not been registered in the Land Register, it is not valid against third persons, and the estate-leaver can fully exercise his property rights.

scholarly journals On the question of forms and types of property rights in civil law

2020 ◽  
Vol 80 (4) ◽  
pp. 62-67
Author(s):  
Zh. Talipova ◽  
Keyword(s):  
Property Rights ◽  
Common Property ◽  
Civil Law ◽  
Comprehensive Analysis ◽  
The State ◽  
Property Relations ◽  
Territorial Unit ◽  
The Republic ◽  
Legal Concepts ◽  
The Right

The right of ownership, like property itself, occupies one of the main places in public life. Statutory regulation of property relations in the Republic of Kazakhstan existed throughout the entire period of statehood formation. Today, property relations are regulated by the norms of various branches of law. But civil law regulation occupies one of the most important places in the system of regulatory regulation. This article deals with a comprehensive analysis of the main legal concepts, such as property, owner, subject of property rights, as well as forms and types of property, the grounds for the emergence and termination of property rights and ways to protect and protect the absolute right of the owner. A certain thing may belong to several persons as common property. In this case, the right of ownership is distributed among several owners (co-owners). The totality of legal norms on common property forms the institution of common property law. The purpose of this work is a comprehensive analysis of the main legal concepts, such as property, owner and subject of property rights, as well as forms and types of property, the basis for the emergence and termination of property rights and the definition of ways to protect and protect the absolute right of the owner. The means of achieving this goal is the study of the works of Kazakh legal scholars, the study of the analysis of practical materials. The article uses the following methods: comparative-legal, system-structural, formal-logical, as well as the method of system analysis. The legislation of Kazakhstan provides for two subjects of State property that have the right to act on their own behalf: the Republic of Kazakhstan as a whole (in respect of property constituting republican property) and the administrative – territorial unit (in respect of property constituting municipal property). That is, in civil circulation, data are carriers of state property rights. Depending on the tasks performed, the State exercises the powers of the owner on behalf of one of the specified entities. The Republic of Kazakhstan and the administrative-territorial unit are not legal entities. However, unless otherwise provided by legislative acts, they are subject to the rules governing the participation of legal entities in relations regulated by civil law. The state and administrative-territorial unit, as special subjects, have all the rights of subjects of civil legal relations and are limited in legal personality only by the current legislation.

An Enterprise as an Object of Civil Rights in Subsoil Use: Challenges and Perspectives

2018 ◽  
pp. 108-116
Author(s):  
V. V. Levochko
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Civil Law ◽  
Legal Regime ◽  
Legal Form ◽  
Distinctive Features ◽  
Logical Approach ◽  
The Right ◽  
Legal Consequences

An enterprise as a holder of civil rights is a universal legal construction. When the I Part of the RF Civil Code was adopted, it was assumed that the enterprise would be the main participant of civil law transactions of the business. However, the introduced legal regime of the enterprise did not meet expectations. The study of theoretical standpoints with respect of the legal essence of the enterprise as a holder of civil rights shows the lack of unanimity of opinions among contemporary representatives of civil law. The most justified and logical approach to the development of legislation in this matter involves determination of a generic category "proprietary complex" and introduction of distinctive features in relation to its types, including the enterprise. The subsoil legislation and relevant jurisprudence analysis justifies the prospects for using the enterprise as a party to civil transactions in the subsoil use sphere, since its legal design allows to combine diverse property rights for their effective circulation, which, to a certain extent, will solve the problem of separate legal consequences for the rights to a subsoil plot and property inseparably attached to it, as well as the problem of the legal form of transfer of the right to subsoil use in certain cases.

scholarly journals Legal regime of unimplanted embryos in vitro from the positions of doctrine, civil law and judicial practice

2020 ◽  
pp. 238-242
Author(s):  
Nataliia Kvit
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Assisted Reproductive Technologies ◽  
Civil Law ◽  
Reproductive Technologies ◽  
Legal Regime ◽  
European Court ◽  
The Future ◽  
The Right

The article deals with the problem of determining the legal regime of unimplanted embryo in vitro, which due to the significantdevelopment of the field of assisted reproductive technologies, is increasingly at risk of its illegal use, or even illegal creation for commercialor other non-infertility treatment. The author analyzes different doctrinal approaches in the civil law of Ukraine and Germany,through the prism of the current legal regulation and practice of the European Court of Human Rights. The paper supports the positionon the right to the embryo as a personal immaterial right and expands it in the sense that such a component of reproductive rights asthe right to determine the future fate of embryos in vitro will also belong to persons to whom assisted reproductive technologies havebeen applied and as a result these embryos where created. Resulting from this analysis, the position on the inadmissibility of the interpretationof the unimplanted embryo as an object of property law is expressed. To support this point of view, the author cites the judgmentof the European Court of Human Rights in Parrillo v. Italy, in which the court emphasized the inadmissibility of the assessmentof embryos as an object of property rights. In particular, the paper proposes to define the regime of unimplanted embryo in vitro as anobject that has a personal immaterial connection to persons for whose treatment of infertility (parents-customers) it was created. Andit is these individuals who will have the right to determine its future. In this regard, it is proposed to reflect this concept in the cuurentregulation in partricular Procedure for the use of assisted reproductive technologies. From the proposed wording, first, it will followthat in vitro embryos created as a result of the partial or full use of donor biological material at the request of persons to whom assistedreproductive technologies are applied will have this personal connection only with the future parents and there will not be an ethicaldilemma regarding who will have the right to determine their future fate (biological parents (reproductive cell donors) or future parents).Secondly, it will also mean that embryos can only be created for reproductive purposes, and an institution providing reproductive ser -vices will not have the right to create or dispose of embryos in vitro at its own discretion without the proper consent of its future parent.And, thirdly, it will exclude the possibility of interpreting such embryos as objects of property rights.

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 The Right to Property and Property Rights as Objects of Possession, which is Committed by the Abuse of an Official by his Official Position (Part 2 of Article 191 of the Criminal Code of Ukraine)

2021 ◽  
Vol 1 (15) ◽  
pp. 126-149
Author(s):  
Pavlo Serhiiovych Berzin ◽  
Ruslan Anatoliiovych Volynets ◽  
Mykhailo Mykhailovych Khomenko
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Criminal Code ◽  
Property Right ◽  
Official Position ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
The Subject ◽  
Definition Of ◽  
The Right

The article analyzes the criminal and civil understanding of the concepts of "foreign property", "right to property" and "property law". Different meanings of these concepts are considered. Differences in criminal and civil law understanding of these concepts and their relationship are established. It is substantiated that the subject of possession provided for in p. 2 art. 191 of the Criminal Code is only someone else's property, not the right to property and property rights. It is substantiated that the concept of "property" in the relevant compositions of criminal offenses against property performs other functions than the concept of "property" in civil law, and that the criminal law understanding of property and civil law definition of property in p. 1 of art. 190 of the Civil Code are unequal (different). On this basis and taking into account the legal positions of the Supreme Court and the Supreme Court of Ukraine, the conclusion is formulated that the subject of possession in the relevant composition of criminal offenses against property can be only someone else's property, not the right to it or not a property actions. The concepts of “property right” and “right to property” are not identical, and the concepts of “property right”, the term "right to property" constitute real rights on the property, but no other rights that are not property. In view of this, the possession by an official by abusing his official position the right to property or, in other words, the possession by an official by abusing of the right to property cannot be qualified under the relevant part of art. 191 of the Criminal Code. In addition, the article analyzes the definition of "right to property", which affect the recognition of the right to property as a kind of "subject" of the so-called "selfish abuses" under art. 364, 364-1 of the Criminal Code. It is emphasized that when an official possession the right to property committed by abusing his official position, he cannot qualify under the relevant part of art. 191 of the Criminal Code, as there is no such mandatory feature of p. 2 of art. 191 of the Criminal Code of abuse as someone else's property that is the subject of abuse.

scholarly journals Easement as a burden for the owner`s property

Legal Ukraine ◽  
2020 ◽  
pp. 28-34
Author(s):  
Oleh Ilkiv
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Legal Aspects ◽  
Property Right ◽  
Public Interests ◽  
Private And Public ◽  
Legal Forms ◽  
The Individual ◽  
The Right ◽  
Market Relations

The article analyzes the features of such a legal category as easement, namely the concept, content and characteristics of easement as a way of exercising property rights in terms of civil law of Ukraine and formulates proposals for improving the civil law regulation of easement. Emphasis is placed on the study of not only theoretical problems but also issues of a practical nature. The signs of servitude rights, the grounds for private and public interests are investigated. The legal aspects of the servitude are clarified, as well as the individual-normative character is monitored. Positions on concretization of the ratio of the terms «encumbrance» and «restriction» of property rights through the prism of the provisions of easement rights are substantiated. The author clearly concludes that the property right in the form of an easement gives the owner the opportunity to effectively use their property, and also provides the right to satisfy the intangible interests of others whose property right to another’s property is not related to property rights. In the conditions of development and domination of market relations in the society the question of creation of such legal forms which would provide a possibility of a certain participation of one person in the property right of another irrespective of simple personal consent of the last becomes actual. Due to the involvement of land in the civil turnover, the system of easements is a rather complex legal phenomenon. Scientific and theoretical analysis of the construction of easements, methods of their acquisition, the practice of application of relevant legislation indicates the relevance of this institution of property law, especially in the development of land and agrarian reform, the development of legislation on property rights to real estate. Key words: easement, ownership, property rights, limits and restrictions.

scholarly journals Team of Co-Owners as a Subject of the Right to Joint Shared Property

2019 ◽  
pp. 49-56
Author(s):  
A. V. Zarubin
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
General Rule ◽  
Point Of View ◽  
Actual Situation ◽  
The Subject ◽  
Shared Property ◽  
Definition Of ◽  
The Right ◽  
Joint Property

The author focuses on the similarity between relations of joint shared property and corporate relations, and proposes a “collective (a team of co-ownwers)” concept of joint property rights that is designed to solve the main problems of relations in question, including the definition of the subject of the right to joint shared property. From the point of view of the “collective” concept, the right to joint property is uniform. If the ownership of individual participants was extended to the whole thing, everyone’s will would be decisive in determining the fate of the thing, but the actual situation is not like this. In addition, possession is an external manifestation of ownership. At the same time, none of co-owners has the opportunity to appropriate the whole thing or even its part. He has only the right to claim possession. The general rule applies to the thing that is the object of the right to joint property. The right to joint property belongs to the team of co-owners as a non-entity community. There is no contradiction in the fact that the right belongs to an unauthorized association (a non-entity community), since the right can be attributed to the person whose will and domination is recognized by law, even if the law denies it as the subject (participant) of civil law relations.

scholarly journals Protection of civil property rights in case of recognition of the contract as not concluded

2021 ◽  
Vol 2 (20) ◽  
pp. 3
Author(s):  
O. A. Surzhenko
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Civil Law ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Law ◽  
The Right ◽  
Legal Consequences

The article examines the problems of protecting civil property rights, one of the ways of which is to recognize the transaction as invalid. When analyzing this method of protection, violations by a transaction of the conditions of its action, the legal nature of invalid transactions, individual grounds and legal consequences of their invalidity are considered. Transactions that have certain drawbacks, and therefore do not meet the conditions that make the person’s actions legitimate, closely intersect with other actions that also do not lead to the purpose for which they were committed. These are not concluded contracts. The plane of intersection of these actions is quite significant, and the criteria for their delimitation are not regulated in the law, but in judicial practice are sometimes worked out contradictory. This applies to non-compliance with the requirements for the form of the transaction (in particular, the signature of the person), essential conditions, and other provisions of the law.Protection of civil rights is one of the most important categories of the theory of civil and civil procedural law, without clarification of which it is very difficult to understand the nature and characteristics of civil sanctions, the mechanism of their implementation and other issues arising in connection with the violation of civil rights. It is noted that the originality of regulatory civil law is that it arises from legitimate legal actions and is aimed at satisfying any property need. The force of coercion gives it the ability to be provided with legal measures. The right (entitlement) to protection in regulatory legal relations is one of the transactions of any subjective civil law, according to which the rightholder can, in the event of violation of the right, make a demand for the protection of the violated civil law

scholarly journals Child as a Participant in Obligatory Legal Relations

2021 ◽  
pp. 64-72
Author(s):  
Iryna SERDECHNA
Keyword(s):  
Property Rights ◽  
Characteristic Feature ◽  
Legal Status ◽  
Civil Law ◽  
Civil Code ◽  
Unborn Child ◽  
Legal Relationship ◽  
Contractual Obligations ◽  
The Right ◽  
A Minor

It is determined that, in accordance with the provisions of civil law, the obligation is a legal relationship in which one party (debtor) is obliged to perform a certain act in favour of the second party (creditor), that is, to perform an act determined by contract or law or to refrain from a certain action, and the creditor has the right to require the debtor to fulfil its duty. The presence of a certain number of persons participating in the obligation of the entities of the obligation (creditor and debtor) is a characteristic feature of the binding legal relationship. Scientific approaches and approaches outstanding in the normative legal acts on understanding the concept of «child» have been analyzed. It is proved that in the Civil Code of Ukraine the concept of «child» is used only in some articles (part 2 of article 25, part 1 of article 35, part 3 of article 72, part 2 of article 285, part 3 of article 295, part 1.4 of article 1200 part 1 of article 1242, etc.) at the same time this category is used regarding, that is, when determining the question regarding the legal status of a conceived and unborn child, regarding the personal non-property rights of individuals, regarding the issue of compensation for harm, hereditary legal relations, etc. It is justified that civil law does not identify the concept of «child» with a person before the age of 18. The peculiarities of the child’s participation in binding legal relations, in particular in contractual and non-contractual relations, were studied. The characteristics of the child’s participation in contractual binding legal relations are defined: 1. The child is subject to contractual obligations until he or she reaches the age of 14, as he or she has the right to engage in petty domestic transactions; 2. The child may be subject to contractual obligations at the age of 14, and the scope and capacity of the child is increased; 3. The child has the same rights as other subjects of binding legal relations. 4. Obligatory legal relations involving the child arise in relation to property and personal non-property benefits; 5. Legal facts are the basis for legal relations involving the child. The legislative approach is disclosed regarding the peculiarities of the participation of the child, namely a minor and juvenile person, in non-contractual obligations, in particular in obligations for compensation for harm.

scholarly journals Personal non-property rights ensure a social existence of the Internet user as natural person

Legal Ukraine ◽  
2020 ◽  
pp. 58-67
Author(s):  
Anna Dolinska
Keyword(s):  
Property Rights ◽  
Legal Status ◽  
Civil Law ◽  
Internet User ◽  
The Internet ◽  
Social Existence ◽  
Natural Person ◽  
Internet Users ◽  
Internet Environment ◽  
The Right

The article is devoted to issues of personal non-property rights which ensure social existence of the Internet user as an natural person. It is emphasized that Internet user, as a participant in civil law relations related to protection and defense of personal non-property rights, is endowed with all powers that determine general legal status of a participant in similar law relations. The peculiarities of the Internet user’s exercise of certain personal non-property rights are highlighted, which are due to nature of Internet relations. They reflect specifics of human communication in the Internet environment. At the same time, threats that require formation of a separate mechanism to ensure the protection the personal non-property rights of Internet users are increasing proportionately. Thus, civil law doctrine should take into account need to supplement existing theory of personal non-property rights with new elements that affect the status of a natural person as a participant in civil law relations. The specifics of Internet user’s legal status in the context of his personal non-property rights when performing certain actions on the Internet is: in moment of occurrence the legal status of Internet user as a holder of personal non-property rights; in ensuring principle of equality of all Internet users, regardless of their status in the field of private or public law relations; in compliance with specific requirements for individualization of Internet user. It is determined that Internet user acts in the Internet environment through the complex of individualizing features which include: avatar, nickname, online style (image), text information (post), which accompanied by photos, videos, information that defines Internet user’s list of tastes, comments of Internet user are placed under posts of other users, digital signature on the Internet. Key words: Internet user, personal non-property rights, right to family, right to name, right to respect for honor and dignity; the right to inviolability of business reputation, the right to freedom, the right to individuality, the right to personal papers, the right to secrecy of correspondence, the right to inviolability of the home, the right to freedom of movement, the right to freedom of association.

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