CIVIL-LAW SET-OFF AND SET-OFF MADE WHEN THE COURT SATISFIES COUNTERCLAIMS AND INITIAL CLAIMS: THEORETICAL REFLECTIONS ON THE SIMILARITIES AND DIFFERENCES OF LEGAL INSTITUTIONS (continuation)

2021 ◽  
Vol 11 (4) ◽  
pp. 50-69
Author(s):  
D.B. ABUSHENKO

In the article, the author continues to distinguish between a civil-legal offset and a set-off made when the court satisfies a counterclaim and initial claims. As a criterion, recognition is taken as an act of will, proceeding respectively from the compensator (the person to whom the application for set-off is addressed) and the defendant in the counterclaim. The article analyzes the anticipated and “double-edged” recognition. The author substantiates the admissibility of using the mechanism of convalidation (cure) of a defective transaction for cases when the corresponding expression of will is addressed to the court without presenting an independent claim for recognizing the transaction as valid. The issues related to the determination of the moment from which the transaction is considered cured, the content of the convalidated contract, as well as the legal consequences of the subsequent judicial discrediting of the convalidated transaction on the grounds related to its impugnability are considered.

2021 ◽  
Vol 11 (2) ◽  
pp. 26-49
Author(s):  
D.B. ABUSHENKO

In the article, the author continues to distinguish between the civil-legal set-off and the set-off made when the court satisfies the counterclaim and initial claims. As a criterion, recognition is taken as an act of will, coming respectively from the compensator (the person to whom the statement of set-off is addressed) and the defendant in the counterclaim. Judicial and non-judicial confessions are analyzed. With regard to judicial recognition, the conclusion is justified that, depending on the type of process and the existence of rules on mandatory professional judicial representation, it will be either ordinary evidence or a basis for exemption from proof, and in some cases also entail certain substantive consequences. Individual cases of so-called qualified recognition are considered (discrepancy in quantitative characteristics; discrepancy in relation to the subject or object of the legal relationship; recognition of another legal relationship; notification to the court of two or more facts, some of which correspond to the interests of the procedural opponent, and the other part – to the interests of the recognizer; discrepancy in the qualification of legal consequences; recognition of the fact of termination of claims with the reservation that they were subsequently restored on the basis of the realized secondary right).


2021 ◽  
Vol 10 (6) ◽  
pp. 13-29
Author(s):  
D.B. ABUSHENKO

In this article, the author highlights the main scenarios on the basis of which the coexistence of two seemingly similar legal institutions could be built – a civil set-off and a set-off made when the court satisfies counterclaims and initial claims (a scenario based on the displacement of one institution by another; a scenario based on the permissibility of parallel implementation of each of the institutions; a scenario based on a mixed model of implementation of each of the institutions). To identify the scenario that best meets the needs of the turnover and the goals of effective judicial protection, the differences between these legal institutions are analyzed (the distinction is made according to specific criteria that either manifest themselves differently, or are present in one structure, but are absent in another). At the same time, the analyzed legal institutions (civil offset and offset produced by the satisfaction of the court counter and initial claims) are distinguished from similar legal phenomena – automatic setoff, offset by the will of a third person, eventual set-off, objections on the surrender made by the defendant during the trial and addressed the court, and the offset produced by the court in the absence of will of the disputing parties in the resolution of the question of legal costs and making a decision about a bilateral restitution.


Author(s):  
V. V. Levochko

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.


2018 ◽  
Vol 5 (1) ◽  
pp. 1-12
Author(s):  
Sanawiah Sanawiah ◽  
Muhammad Zainul

Limitations of adulthood and lawfulness of the pewasiat both in terms of the position of limits and the ability of the pewasiat, the requirements of the pewasiat and the various limits of the age of the pewasiat according to different views and opinions among the Imam of the School in the determination of its law. The purpose of this study is to to assess the Limitations of adulthood and legal proficiency of pewasiat by Compilation of Islamic Law and Civil Code contained in the Compilation of Islamic Law Article 194 paragraph 1 and Book Civil Law Article 897. In Compilation of Islamic Law Article 194 paragraph 1 concerning the will specifies that the person who intends to reach the age of 21 full and sensible this is a requirement for mlekukan wills must reach the age that has been determined. The Civil Code states that in Article 897 it states that the person who intentions must reach the age of 18 full years, this is a condition of determination to perform the testament. Normative legal research methods analyze, related legislation presented through descriptive and deductive methods which are then analyzed to see the location of similarities and differences between the Compilation of Islamic Law and the Civil Code. The result of this research is the equation of Law Compilation of Compilation of Islamic Law and Civil Code which states the condition of the person having the will should be sensible, while in the determination of maturity 21 years based on article 330 Civil Code. As for the legal proof of Article 426 Civil Code aged 18 years.


Author(s):  
Goodwin-Gill Guy S ◽  
McAdam Jane ◽  
Dunlop Emma

This chapter discusses the determination of refugee status. The legal consequences that flow from the formal definition of refugee status are necessarily predicated upon determination by some or other authority that the individual or group in question satisfies the relevant legal criteria. In principle, a person becomes a refugee at the moment when he or she satisfies the definition, so that determination of status is declaratory, rather than constitutive. However, while the question of whether an individual is a refugee may be a matter of fact, whether or not he or she is a refugee within the 1951 Convention, and benefits from refugee status, is a matter of law. Problems arise where States decline to determine refugee status, or where States and the Office of the United Nations High Commissioner for Refugees (UNHCR) reach different determinations.


Jurnal Akta ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 271
Author(s):  
Kevin Hanif Hakim ◽  
Akhmad Khisni

At first the marriage law stipulated in the Civil Law Act (Civil Code) and subsequent regulations related to marriage and even then dealt with separately by Act No. 1 of 1974 on Marriage. On October 27 2016 the Constitutional Court (MK) through its Decision No. 69 / PUU-XIII / 2015 gives constitutional interpretation of Article 29 of Act No. 1 of 1974 on Marriage which basically says that the marriage contract can be carried out during the marriage bond. Therefore, the object of the author's thesis writing is a result of the law of the Constitutional Court decision that allows marriage after marriage. And the formulation of the problem in this paper are the implications of the procedure / mechanism of making the marriage contract and the legal consequences of the status of the property as well as third parties who feel aggrieved over the agreement. Methods used by the authors te is normative research method. So as to obtain results that due to the Constitutional Court's decision that allows the marriage contract after marriage alter the legal mechanism of making the marriage contract that can now be created during the marriage bond takes place by the Notary without preceded by the determination of the competent court and the legal consequences of making the marriage contract after the wedding on the status of property together with the inherent (closely related) to the time of entry into force of the agreement and binding on third parties.Keywords: Notary; Marriage Agreement; the Constitutional Court Decision


1997 ◽  
Vol 36 (04/05) ◽  
pp. 237-240
Author(s):  
P. Hammer ◽  
D. Litvack ◽  
J. P. Saul

Abstract:A computer model of cardiovascular control has been developed based on the response characteristics of cardiovascular control components derived from experiments in animals and humans. Results from the model were compared to those obtained experimentally in humans, and the similarities and differences were used to identify both the strengths and inadequacies of the concepts used to form the model. Findings were confirmatory of some concepts but contrary to some which are firmly held in the literature, indicating that understanding the complexity of cardiovascular control probably requires a combination of experiments and computer models which integrate multiple systems and allow for determination of sufficiency and necessity.


Author(s):  
Daniel Berkowitz ◽  
Karen B. Clay

Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.


Author(s):  
Дмитрий Валериевич Судаков ◽  
Олег Валериевич Судаков ◽  
Людмила Валентиновна Кретинина ◽  
Наталья Владимировна Якушева ◽  
Артём Николаевич Шевцов

Статья посвящена построению прогноза эффективности реконструктивных вмешательств на магистральных нервах предплечья в зависимости от протяженности дефекта нервной ткани и особенностей последующего периода реабилитации пациентов. Данная тематика является весьма актуальной, так как с каждым годом во всем мире наблюдается определенный рост случаев травм различного генеза магистральных нервных стволов, которые затем нередко приводят к временной нетрудоспособности и даже инвалидности пациентов. Реконструктивная микрохирургия многие десятилетия пытается решить целый ряд проблем аутотрансплантации нервных стволов и повысить ее общую эффективность. Но из-за определенных проблем связанных с финансированием, некоторые вопросы трансплантологии и реабилитации остаются нерешенными и в настоящий момент. Все это придает представленной работе важное значение не только медицинского, но и социально - экономического плана. Целью работы стала попытка построения прогноза восстановительных операций на нервной ткани, с учетом объема пораженных структур и периода реабилитации. Объектами исследования стало 180 больных, которым по той или иной причине, осуществлялась реконструктивная операция на одном из магистральных нервов предплечья. Все пациенты были разделены на 3 группы по 60 человек, в зависимости от протяженности дефекта магистрального нерва: до 4 см, от 4 до 8 см и от 8 до 12 см. Последующее разделение внутри каждой группы на подгруппы производилось в зависимости от определенного поврежденного нерва (лучевой, локтевой, срединный). В работе изучалось течение раннего послеоперационного воспалительного процесса, с определением бактериальной микрофлоры в ране. Изучались и отдаленные последствия оперативного вмешательства. Своеобразной новизной для данной тематики в целом, стало выявление последующего установления инвалидности пациентов. Кроме того, важные данные были получены и по срокам реабилитации и частичного или полного восстановления утраченных функций по срокам в зависимости от размеров восстанавливаемого дефекта и от наличия или отсутствия необходимой реабилитации. Полученные в работе данные могут представлять интерес не только для врачей хирургов и травматологов, но и для организаторов здравоохранения, позволяя производить прогнозы по выздоровлению пациентов в каждой определенной клинической ситуации The article is devoted to the construction of a forecast of the effectiveness of reconstructive interventions on the main nerves of the forearm, depending on the length of the defect in the nervous tissue and the characteristics of the subsequent period of rehabilitation of patients. This topic is very relevant, since every year all over the world there is a certain increase in cases of injuries of various origins of the main nerve trunks, which then often lead to temporary disability and even disability of patients. For many decades, reconstructive microsurgery has been trying to solve a number of problems of autotransplantation of nerve trunks and improve its overall efficiency. But due to certain problems associated with funding, some issues of transplantation and rehabilitation remain unresolved at the moment. All this gives the presented work important not only medical, but also socio - economic importance. The aim of this work was to attempt to predict restorative operations on the nervous tissue, taking into account the volume of the affected structures and the period of rehabilitation. The objects of the study were 180 patients who, for one reason or another, underwent a reconstructive operation on one of the main nerves of the forearm. All patients were divided into 3 groups of 60 people, depending on the length of the main nerve defect: up to 4 cm, from 4 to 8 cm, and from 8 to 12 cm. Subsequent division within each group into subgroups was performed depending on the specific damaged nerve ( radial, ulnar, median). The work studied the course of the early postoperative inflammatory process, with the determination of bacterial microflora in the wound. The long-term consequences of surgery were also studied. A peculiar novelty for this topic as a whole was the identification of the subsequent establishment of disability in patients. In addition, important data were obtained on the timing of rehabilitation and partial or complete restoration of lost functions in terms of timing, depending on the size of the restored defect and on the presence or absence of the necessary rehabilitation. The data obtained in this work may be of interest not only for surgeons and traumatologists, but also for healthcare organizers, allowing them to make predictions about the recovery of patients in each specific clinical situation


Author(s):  
Daniel Clarry

This chapter discusses the nature and operation of mandatory and default rules in fiduciary law, arguing that loyalty is a core element of every fiduciary legal institution. Loyalty is the hallmark of fiduciary law, as it requires persons in other-regarding positions of power to perform functions selflessly, rather than selfishly. However, there are many circumstances in which a person undertakes and exercises other-regarding powers, underscoring the fact that a broad range of persons may be the subject of fiduciary law. This chapter first provides an overview of key concepts and context, focusing on the distinction between mandatory rules and default rules as well as sources of such rules in fiduciary law. It then considers fiduciary loyalty, citing examples that illustrate how a baseline of fiduciary accountability is implied by the essential nature of fiduciary legal institutions, along with the mandatory or default quality of the duties of care and good faith. The main thesis of this chapter is that loyalty is a basic constituent element of all fiduciary legal institutions. Whether fiduciary principles are mandatory involves a consideration and determination of whether the relationship or institution is inherently fiduciary as matter of law and legal classification. It also highlights the modern trend toward codification and clear legislative demarcation of mandatory and default rules in fiduciary law.


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