scholarly journals Os Efeitos da Unificação do Regime das Obrigações pelo Código Civil de 2002: Estudo do Contrato de Comodato na Relação de Distribuição de Derivados de Petróleo

2013 ◽  
Vol 8 (2) ◽  
Author(s):  
Luciano Zordan Piva
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Commercial Law ◽  
The Real ◽  
Commercial Transaction ◽  
Commercial Code ◽  
Draft Bill ◽  
Civil Contract

Sumário: Introdução. 1. A dualidade Direito Civil - Direito Comercial como base da pesquisa. 1.1. Apontamentos sobre a evolução histórica da unificação do Direito Privado brasileiro. 1.2. Técnica de pesquisa e corte metodológico: o contrato de comodato na relação de distribuição de derivados de petróleo. 1.3. Da utilização do contrato de comodato como paradigma para a investigação: contrato tipicamente civil numa relação empresarial. 2. Resultados: inclinação jurisprudencial no sentido de evidenciar a autonomia do direito comercial. 2.1. Análise das decisões que consideram o contexto de inserção do contrato para configuração da sua função social e econômica típica. 2.2. Relação de decisões que aplicaram regras civis ao contrato de comodato inserido na relação de distribuição de derivados de petróleo. 2.3. Análise de decisões anteriores à vigência do Código Civil de 2002. 3. Um novo código comercial é necessário? Considerações finais. Referências. Resumo: Uma das maiores transformações promovidas pelo Código Civil foi concretizar a tendência histórica do Direito brasileiro no sentido da unificação do regime das obrigações. Tendo em conta os dez anos de vigência da “constituição do homem comum”, esse artigo procura identificar as consequências práticas da unificação, isto é, examinar qual o impacto provocado nos julgamentos de casos envolvendo situações limites, em que, por exemplo, um contrato civil típico tenha sido utilizado numa operação intrinsecamente empresarial. Nesse sentido, analisar-se-á o contrato de comodato inserido na atividade de distribuição de derivados de petróleo, sempre atento aos novos dispositivos do Código Civil que originaram regras para a solução de casos como o supramencionado. Aproveitando as indispensáveis reflexões acerca da dualidade Direito Civil – Direito Comercial para a produção desse artigo, ao final provoca-se a discussão a respeito da necessidade ou não de um novo Código Comercial, em virtude da proposta do Projeto de Lei n. 1.572, de 2011. Palavras-chave: Direito Comercial; Código Civil; Unificação das Obrigações; Comodato; Projeto de Código Comercial. Abstract: One of the most important changes promoted by the Civil Code was to materialize the historical tendency of Brazilian Law towards the unification of Obligation’s regime. Taking into account the ten years of entering into force of this Code, this paper aims to identify the practical consequences of the unification, that is to say, to examine what is the real impact provoked in the trials involving threshold situations between Civil Law and Commercial Law, as for example, when a typical civil contract has been used in an intrinsically commercial transaction. In this sense, it shall be analyzed the commodate contract inserted in the oil’s derivative distribution activity, always looking up to the Civil Code new provisions that originated rules for the solution of cases like the above-named. Taking the indispensable reflections about the duality between Civil Law – Commercial Law, in the end of this paper, we provoke a discussion about the necessity of a new Commercial Code, due to the recent 2011 Draft Bill n. 1.572.  Keywords: Commercial Law; Civil Code; Unification of Obligation’s Regime; Commodate Contract; Draft of Commercial Civil Code.

scholarly journals Commercial name in the draft of the Civil Code

2012 ◽  
Vol 60 (2) ◽  
pp. 271-278 ◽  
Author(s):  
Jarmila Pokorná ◽  
Eva Večerková
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Regulations ◽  
Legal Form ◽  
Natural Person ◽  
Injured Person ◽  
Commercial Code ◽  
Draft Bill ◽  
General Regulation

Name of the firm is by the Commercial Code name of the entrepreneur registered in commercial register. The effective legal regulation distinguishs between the name of natural person (its first name and surname) and the name of company (its name and obligatory addition declaring its legal form). The name is not allowed to be deceptive and mistakable. It can be transfered only together with an enterprise. If the name is unwarrantedly interferented the injured person can require an unwarranted user to forbear his behaviour and to eliminate the defective state. He can also demand delivery of an unwarranted enrichment, adequate satisfaction and damages.Reform of civil law transposes the regulation of name of the firm to Civil Code, but maintains some principles of existing legal regulations: the name is a designation for entrepreneurs registered in commercial register, it is not allowed to be deceptive and mistakable. However the draft bill of the Civil Code brings change in some elements of the regulation: natural person does not need to use obligatory name and surname, right to use the name by its transition on a new user is regulated in more detail and more detailed is also the regulation of using the names of natural persons in names of companies.By way of contrast possibility of transfer of the name is not explicitly solved. It may be used the general regulation about transfer of the thing. Existing interpretative problems become this way deeper.

scholarly journals New in the Czech Civil Code – Rules on Family Enterprise

2020 ◽  
Vol 14 (2) ◽  
pp. 137-152
Author(s):  
Karel Marek ◽  
Martin Janků
Keyword(s):  
Family Business ◽  
First Generation ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Commercial Law ◽  
The Czech Republic ◽  
Family Enterprise ◽  
Commercial Code ◽  
The Family

For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominating in the category of today’s Small and Medium-sized Enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that hasn’t solved many of the problems associated thereto. Only in 2012 the new Czech Civil Code, Act. No 89/2012 Coll., introduced the institute of family enterprise as completely new term in the Czech Civil law. The present paper aims to analyse the key rules of this new legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as to highlight the potential weaknesses in the regulation itself.

scholarly journals Family Enterprise in Czech Civil Code

2016 ◽  
Vol 5 (2) ◽  
pp. 25-32 ◽  
Author(s):  
Martin Janku ◽  
Karel Marek
Keyword(s):  
Family Business ◽  
First Generation ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Commercial Law ◽  
The Czech Republic ◽  
Family Enterprise ◽  
Commercial Code ◽  
The Family

Abstract For more than two decades the family business enterprises of the first generation (generation of founders) are more and more dominating in the category of today’s small and medium–sized enterprises in the Czech Republic. The necessary legal background defining the legal relationships and rights of all participating persons was, however, limited to general provisions in the Commercial Code that has not solved many of the problems associated thereto. Only in 2012 the new Czech Civil Code, Act. No 89/2012 Coll., introduced the institute of family enterprise as completely new term in the Czech Civil law. The presented paper aims to analyse the key rules of this new legal regulation, focusing on significant aspects of the institute in the context of commercial law and family law, as well as, to highlight the potential weaknesses and gaps existing in the regulation.

scholarly journals On Some Problems of Commercial Law in Ukraine

2021 ◽  
Vol 9 (2) ◽  
pp. 72-85
Author(s):  
Oleksandr Romanovich Kovalyshyn
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Entrepreneurial Activity ◽  
Commercial Law ◽  
Commercial Code ◽  
Legal Forms ◽  
Law Regulation ◽  
Legal Entities ◽  
Business Relations

The paper is devoted to the disclosure of certain aspects of recodification in Ukraine, some existing problems of the Ukrainian commercial law as well as the conflict of norms between the Commercial Code of Ukraine and the Civil Code of Ukraine. In year 2020, the Concept of Civil Legislation Reform was adopted in Ukraine. The Concept of Civil Legislation Reform states that the systematic renewal of the Civil Code of Ukraine as a whole is possible only if the Commercial Code of Ukraine is repealed because the latter does not meet the parameters of the acts governing business relations which, by their nature, are primarily private. The presented study explains the current problems of the Ukrainian commercial law as well as civil law regulation of business relations for both: 1) the foreign scholars dealing with the civil law and commercial law; 2) the foreign investors (including investors from the European Union countries) who are already conducting economic activities in Ukraine or plan to invest in the Ukrainian economy. Special attention is given to such issues like the types of ownership, penalties for obligations, differences in legal capacity, difference of approaches to the system of legal entities, existence of some archaic legal forms of entrepreneurial activity, etc. The author emphasizes that undoubtedly the Commercial Code of Ukraine as well as the Civil Code of Ukraine need some updating. There is an urgent need to systematize the existing organizational and legal forms of legal entities and to renew the basics of civil law regulation in Ukraine. It is explained in the paper, while in most neighbouring jurisdictions steps are being taken to systematic update of the commercial codes (including expanding the scope of their legal regulations), in Ukraine steps are being taken to eliminate the commercial code. This seems completely unacceptable; it harms the legal regulation of business relations in Ukraine significantly and slows down the progressive development of the Ukraine’s economy. The analysis of the commercial codes abroad shows that there is no single approach to the list of legal constructions that should form the basis of the relevant code. All, without exception, codified acts of this type are characterized by the presence of special institutions that, from the point of foreign lawyer’s view or current trends in private law, may seem do not meet certain standards.

scholarly journals Understanding the Unlawful Acts (Problems and Challenges) A Book Review ‘Perbuatan Melanggar Hukum’, Prof. Dr. R. Wirjono Prodjodikoro, SH., CV Mandar Maju, Bandung, 108 Pages, ISBN 978-979-538-470-0

2020 ◽  
Vol 2 (2) ◽  
Author(s):  
Natanael Andra Jaya Nababan
Keyword(s):  
Primary Education ◽  
Civil Law ◽  
Civil Code ◽  
Commercial Law ◽  
East Indies ◽  
Dutch East Indies ◽  
The Law ◽  
Broad Meaning

Book witen by Prof Dr. R. Wirjono Prodjodikoro, Wirjono was bor in Surakarta, Dutch East Indies, on 15 June 1903. After completing his primary education, he attended the Rechtsschool I in Batavia, graduating in 1922. He then became a judge, later taking time to study at Leiden University in Leiden, Netherlands. This book talks about acts that can violate laws which are viewed from the point of civil law. I The term "unlawrful acts" in general is very broad meaning that is if the word "law" is used in the broadest sense and the matter of legal conduct viewed from all angles. Now the act of violating the law will be discussed smply because there are consequences and solutions that are regulated by the Civil Code in the broadest sense, which includes commercial law. This needs to be stated I here, because Article 102 of the Provisional Constitution distinguishes Civil Law from Commercial Law.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 58 Colombia: Colombian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Salame Antonio Aljure
Keyword(s):  
Latin America ◽  
Civil Law ◽  
Case Law ◽  
Private International Law ◽  
Gap Filling ◽  
Commercial Law ◽  
Legal Relationship ◽  
Commercial Code ◽  
The Hague ◽  
International Instruments

This chapter looks at Colombian perspectives on the Hague Principles. In Colombia, civil and commercial regulations are contained in two separate codes: the Colombian Civil Code and the Commercial Code. Despite their separation, commercial law draws from civil law and regulates several areas not covered by the latter. As a result, civil and commercial law in Colombia should be understood as complementary in that they both regulate international contracts and share similar foundations and principles. There is currently no modern law that comprehensively deals with private international law in Colombia. However, the Bogotá Chamber of Commerce is in the process of drafting legislation with the objective of clarifying the interpretive approach to norms underlying international contracts. Although there is no express reference to the Hague Principles as a guiding or interpretative source of law for judges, it has been recognized in case law that international instruments such as the UNIDROIT Principles of International Commercial Contracts (UPICC) may govern a legal relationship if they do not contravene an express rule. This gap-filling role facilitates the transition of law to modernity by virtue of the requirements of relevance, coherence, and justice.

A megbízási szerződés szabályozásának történeti vázlata Romániában

2020 ◽  
Vol 3 (1) ◽  
pp. 5-22
Author(s):  
Előd Bartis
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Roman Law ◽  
Historical Overview ◽  
Commercial Code

The study constitutes a brief historical overview of the development of the contract of mandate, as regulated in Romanian law. Firstly, the roots of this contract in antiquity and in Roman law are discussed, and the evolution of its major characteristics are revealed. Subsequently, the author presents the regulations applicable to the contract of mandate under the first modern codifications of Romanian civil law in the Calimach and Caragea codes, the Commercial Code of Wallachia of 1840, the Romanian Civil code of 1864, the Commercial Code of 1887, and the Civil Code of 2009, currently in force. The author presents the major historic evolutions of the Romanian regulation pertinent to the nature of the contract, the parties, their remuneration, the effects of the contract inter partes and towards third persons as well as the changes in regulatory logic from the differentiation of commercial and civil mandate to the unification of the two institutions in the Civil Code of 2009.

scholarly journals Legal Person Subject to Civil Law

2021 ◽  
Vol 9 (1) ◽  
pp. 13-23
Author(s):  
Cristian Macsim
Keyword(s):  
Present Article ◽  
Civil Law ◽  
Civil Code ◽  
Legal Person ◽  
Private Law ◽  
Wide Scope ◽  
Commercial Law ◽  
International Regulations ◽  
Constituent Elements

The legal person, now a distinct institution in its own right, regulated as such in the Romanian Civil Code, is the result of a long process of modernisation of Romanian legislation, but also of its harmonisation with international regulations which unanimously recognise the legal person as a subject of law. The notion of legal person was born in private law and has been and is used in all branches of law. Legal persons are distinct subjects in civil law or commercial law legal relationships. The legal person is a subject of law with a wide scope in the legal circuit. Commercial companies, autonomous companies, companies, are participants as legal persons in private law relationships. Legal persons are the entities provided for by law, as well as any other legally-established organisations which, although not declared by law to be legal persons, fulfill all the conditions provided for by the Civil Code and the relevant legislation. The present article aims to present the specific rules for the establishment and functioning of a legal person, as well as issues related to classifications and constituent elements, and to their liability for legal acts or deeds performed.

scholarly journals The Need to Remove the Civil Code from Mexican Commercial Laws: The Case of “Offers” and “Firm Promises”

2017 ◽  
Vol 1 (19) ◽  
pp. 21
Author(s):  
Raúl Iturralde González
Keyword(s):  
Civil Code ◽  
Commercial Law ◽  
Porfirio Diaz ◽  
Commercial Code ◽  
The Law ◽  
Further Development

In 1889, then Mexican President Porfirio Díaz enacted the Mexican Commercial Code that is still in force today. This code was inspired on the Napoleonic code of 1807. Unfortunately, the Mexican code eliminated the use of commercial customs and practices as an accepted method for breaching gaps in commercial law. Since then, Mexican commercial law has held the civil code as the basis for dealing with gaps and loopholes in the application of commercial law. This has prevented the further development of Mexican commercial law as it is forced to use institutions and doctrines that were not designed to deal with rapidly changing commercial issues. Mexican commercial law would benefit from the reincorporation of commercial customs and practices as a basis to fill in the gaps in the law.

scholarly journals Selected Ways of Acquiring Securities in the Conditions of the Slovak Republic

2018 ◽  
Vol 66 (6) ◽  
pp. 1589-1599
Author(s):  
Tomáš Peráček ◽  
Boris Mucha ◽  
Patricia Brestovanská ◽  
Jana Kajanová
Keyword(s):  
Financial Management ◽  
Slovak Republic ◽  
Legal Regulation ◽  
Civil Code ◽  
Practical Application ◽  
Commercial Law ◽  
Professional Literature ◽  
The Czech Republic ◽  
Securities Law ◽  
Commercial Code

One of the basic tools of the capital market are securities. Under the currently valid and effective legislation, ownership of securities can be acquired through three types of scrambling contracts. It is a contract for the purchase of securities, a contract for the donation of securities and a contract for the loan of a security. These contract types are primarily regulated in the Securities Act as the “lex specialis” of securities law, with subsequent reference to the legal regulation contained in the Civil Code and the Commercial Code. The authors are focused on a donation of securities lending of securities, which are used in practice only a little, or even at all. For this reason, no attention is paid to them either by legal theorists. The authors, through scientific and doctrinal interpretation, examine the selected provisions of the Securities Act, the Civil Code and the Commercial Code relating to the issues of these agreements. Through professional literature and court decisions, they are looking for answers to practical application problems. Last but not least, they compare legal regulations in Slovakia and the Czech Republic and point to the differences. The study of the selected issues related to the acquisition of securities in the conditions of the Slovak Republic represents the main objective of this contribution, which affects also the area of economics or financial management. Priority, however, is in the area of financial law with significant transitions to civil and commercial law.

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