CIVIL LAW STATUS OF BENEFICIARIES OF A PRIVATE BENEFIT FOUNDATION

2021 ◽  
Vol 21 (5) ◽  
pp. 7-85
Author(s):  
D.P. ZAIKIN

This paper examines the civil law status of the beneficiaries of a foundation (Stiftung) subject to private benefit purposes. It concerns the reasons and impact of conservative and instrumental approaches to the permissible purposes of the foundation, the classification criterion of private benefit foundations (privatnützige Stiftungen) and public benefit foundations (gemeinnützige Stiftungen), the limits to which the Germanic countries tolerate with establishment of the private benefit foundations and then defines the civil law status of the beneficiaries from the perspective of their claims to the foundation and participation in the foundation management, control and protection. As a result of the research the ways to mitigate the risks, that private foundations can create for the participants in civil law relations, are proposed in the light of the legal nature of the foundation.

2021 ◽  
Vol 21 (3) ◽  
pp. 7-107
Author(s):  
M.D. TYAZHBIN

The article is dedicated to the category of subordination agreements. Based on the concept of conflict of rights in personam, the author makes an attempt to integrate this category into the system of private law, to determine the legal nature of subordination, and from these positions to assess the effectiveness of Art. 309.1 of the Civil Code of the Russian Federation, implemented in the course of the civil law reform.


2006 ◽  
Vol 78 (9) ◽  
pp. 395-412
Author(s):  
Dušan Nikolić

In the first part of the paper, the author has outlined some changes that have happened in the field of civil law during the history, and in the second part of the paper, the author has paid attention to the modern trends, produced by the process of globalization. By analyzing certain sectors, the author has come to the conclusion that ownership title and public office are being slightly shifted from state to non-state authorities. On the other hand, this trend of the global (re)privatization has contributed to the change of attitude toward the title. The owner is expected to ewoy his title both for his own and for the public benefit. One of the most recent judgments of the European Court of Justice speaks in favor of this and it has been mentioned in this paper. This judgment supports the view that the property is not absolute and that it has a social value. The special attention is paid to the so called new institutionalism and need to question the concept of separation of powers within the European Union.


Author(s):  
R.S. Lukashov

The article is devoted to the theoretical and legal analyses of the place of a corporate agreement in the system of civil contracts. The article identifies the key factors that justify a separate place of the corporate agreement among existing contractual structures of civil law. The article deals with scientific views on the concept and legal nature of the corporate agreement, outlines the subject of the corporate agreement, which is concluded between the participants of the legal entity of corporate type, as well as analyzed the latest legislation on the definition of the concept, subject and content of the corporate agreement, which is concluded between the members of the limited liability company.  


Author(s):  
Anna Moskal

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>


Author(s):  
Anatoliy Babaskin

Іintroduction. Despite the fact that a significant number of scientific publications by well-known Ukrainian authors are devoted to the issues of legal regulation of credit obligations, at the same time separate studies of banking legislation requirements on "acceptability of collateral" have not been conducted in Ukrainian civil science in recent years. This, taking into account the gradual alignment of banking legislation of Ukraine with the standards of Basel III, and Directive 2002/47 / EC of the European Parliament and of the Council of 6 June 2002 on financial collateral mechanisms, necessitates such scientific research. The aim of the article. On the basis of the analysis of the legislation of Ukraine, the legislation of the European Union, scientific advances in the sphere of civil law and banking legislation, in the context of the analysis of the banking legislation of Ukraine, it is safe for creditors. In order to achieve this goal: 1. Conduct an analysis of civil and legal species for the protection of crops for the subject of іх possible delivery to “acceptable safety” and vrahuvannya banks when opening a credit card. 2. Significantly "quasi-security", as viewed by the banking legislation in the form of "acceptable security" for credit cards. 3. Zdіysniti analysis of the approaches to the legislation of the EU in the field of protection from credit denominations. Results. The methodological basis of the study is general scientific and special legal methods of scientific knowledge. In particular, the dialectical method, the method of analysis and synthesis, the comparative law method, the functional method, the modeling method, etc. Conclusions. First, the banking legislation does not consider as "acceptable collateral" such types of collateral as penalty, surety, deposit, retention. Secondly, the banking legislation considers as "acceptable collateral" not only those specified in Part 1 of Art. 546 of the Civil Code of Ukraine types of security for performance of obligations (pledge, right of trust ownership, guarantee), and other types of security for performance of obligations provided by law or contract (reserve letter of credit, performing the function of financial guarantee, guarantees of public entities, guarantee payment), but also contractual constructions which do not concern types of maintenance of performance of obligations (repo agreements). Thus, the banking legislation considers collateral in credit operations from the economic point of view, according to which "acceptable collateral" is only such liquid collateral that guarantees the rapid recovery of the property of the creditor bank, which suffered damage due to default or improper performance of the counterparty loan obligation, as well as "quasi-collateral", if such is referred by banking legislation to "acceptable collateral". Third, the existence of rules in the banking legislation on the acceptability of collateral in no way affects the right of banks to use any type of collateral provided by law or contract, if the application of such is possible in credit relations, taking into account the legal nature of the relevant types. software. Fourth, the set of regulations of the National Bank of Ukraine on the acceptability of collateral can be considered as an institution of banking law, which includes as rules of civil law governing the types of collateral, other rules of contract law governing other "quasi-collateral" contractual constructions, as well as public-law special norms of banking legislation, which establish additional regulatory requirements for banks to ensure credit operations and calculate credit risk.


2017 ◽  
Vol 1 (9) ◽  
pp. 78
Author(s):  
Liga Mazure

The patient's express will, in accordance with the nature of its origin, could be categorized into initial and derivative express will. However, the regulatory framework is insufficient in Latvia, considering the significance of these institutes in the civil-law protection of the patient's express will and their specificity of different legal nature.The aim of the research is to carry out the analysis of the patient's express will types according to the nature of origin, to determine regulatory gaps and propose certain solutions for the elimination of the identified gaps. In order to achieve the aim, the following objectives are set: 1) to analyse the patient's express will classification according to various classification criteria; 2) to study legal nature of patient's consent; 3) to assess patient's refusal of a medical treatment and its legal consequences; 4) to analyse withdrawal by a patient as a derivative express will. The following research methods are applied in the paper: semantic method; grammatical method; historical method; comparative method; systemic method; teleological method. Research hypothesis: if all the patient’s express will types based on the nature of origin are regulated in detail, the legal status of a patient in medical treatment legal relations will be improved and stabilized. Literature, regulatory acts and legal practice materials are applied in the research as information resources.The author has developed the principles regarding the patient's express will types based on the nature of origin, which are in accordance with the legal system of Latvia and should be implemented in the regulatory framework, thus improving the civil law protection of patient's express will.


2017 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Elżbieta Loska

A LEGACY IN THE ROMAN LAWSummary A notion of a legacy did not exist in the archaic Roman law as a homogenous concept of law and it developed as late as in the pre-classical Roman law. Even then, however, only particular types of legacies, rather than their general concept, were defined. Nevertheless, one may say that a legacy was a civil law instrument by means of which a testator left a certain economic benefit to a particular person, not making him\her an inheritor.At the beginning there were four basic types of legacy in the Roman law: legatum per vindicationem, legatum per praeceptionem, legatum per damnationem and legatum sinendi modo. The first two types had an effect of a disposition while the two latter ones of an obligation only. In sources there also exist two other types: legatum optionis and legatum partitionis. This last mentioned is similar to a later established concept of a fideicommissum, an informal legacy, which became actionable in the times of the Emperor August.Already in the ancient times one may observe a decrease in the significance of these types of legacy, the effects of which directly related to the ownership of objects (legatum per vindicationem and legatum per praeceptioneni).They were connected with the notion o f an ownership according to ius civile and formal means of transferring the ownership. They lost its significance when - beside the oldest civil law - praetorian law and emperors’ constitutions appeared and when the ownership was standardised. After the issuance of senatusconsultum Neronianum in the 1st century AD it became possible to retain the legal effectiveness of the legacies which until then were considered invalid due to a failure to preserve an appropriate form; an ex /^ con version took place. It resulted most probably in converting invalid legacies into legatum per damnationem.In the subsequent centuries, emperors’ constitutions led to a harmonisation o f the concept of legacy (while the division between the legacy having an effect of a disposition and an obligation was still preserved), and later on to equalisation in the legal effect of formal and informal legacies. The most important regulations were: the constitution of the Emperor Constantinus dated 339 AD, which abolished the requirement of solemnitas verbum and two constitutions of the Emperor Iustinianus - the first - dated 529 AD - introduced an identical legal nature of all legacies, the other - dated 531 AD - completely equalised legacies with fideicommissa. 


Author(s):  
Владимир Анисимов

The article is devoted to the topical questions of establishing the legal nature of interest and its role in civil law regulation of obligations, it also deals with the questions of the content of interest of each part of the obligation and the ways of their enforcement in the norms of civil law. It is concluded that the interest is the basis for the differentiation of civil law regulation of obligations.


2019 ◽  
Vol 25 (6) ◽  
pp. 587-593
Author(s):  
Francesco A Schurr

Abstract The article describes the use of trusts and private foundations as well as the cultural and legal differences between the two legal instruments. The problems and opportunities arising from any legislative measure that introduces the trust in a civil law jurisdiction will be addressed. The article will focus primarily on the Principality of Liechtenstein. While Liechtenstein is a typical civil law jurisdiction that has embedded partly the Austrian and partly the Swiss legal tradition, a unique trust regime was enacted as early as 1926. On the contrary, the Swiss legislature has never created its own legal instruments for private wealth structuring. Swiss practitioners have relied on foreign tools, such as the Liechtenstein foundation and the Liechtenstein trust. Currently an academic and political debate is underway in Switzerland regarding the introduction of genuinely Swiss vehicles for private wealth structuring. What lessons can be learned from the almost 100 years of Liechtenstein experience?


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