CONSTITUTIONAL AND TRANSLATIVE ACQUISITION OF RIGHTS IN THE CONTEXT OF THE DOCTRINE OF OWNERSHIP TRANSFER

2017 ◽  
Author(s):  
Myroslava Hudyma ◽  
Keyword(s):  
Property Rights ◽  
Property Right ◽  
Legal Capacity ◽  
Close Attention ◽  
Ownership Transfer ◽  
The Right ◽  
Qualitative Characteristics

Within the framework of the general doctrine of constitutive and translational acquisition of rights, the publication made an attempt to identify their suitability for describing the phenomenon of ownership transfer. The general characteristics of translational and constitutive acquisition of rights are analyzed, their differences are highlighted, and it is emphasized that the specified types can cover such legal situations as full transfer of the right (the right as a whole), and transfer of a part of powers (as components of the certain right). The paper underlines that the differences between the types of acquisition of rights are not so much quantitative (one jurisdiction or their complex is transferred), as qualitative characteristics and such issues are especially relevant in the spectrum of research on the transfer of ownership as a right that includes a triad of powers. Close attention is paid to the construction of constitutive acquisition of right, the possibility of use of which is extremely controversial, due to the overwhelming denial of the correctness of separation and alienation of a separate authority from ownership right, because the approval of the latter will lead to theoretical dissonance on the existence of incomplete (split ownership). It is emphasized that the application of the construction of the transfer of authority can take place in different shades of meaning and be combined with the right alienation, and without it. Therefore, the construction of right granting without alienation of the right is quite viable. Moreover, the transfer of one or even several powers of the owner is not only practically possible, but also necessary to establish limited property rights on the basis of full property right (ownership right). However, it is noted that in these cases, the acquirer will not receive the right of the alienator as a whole, but only certain legal possibilities of behavior in relation to a particular good. The legal capacity of the acquirer will not coincide with the legal capabilities of the alienator in content and scope, and therefore to talk about the transfer of ownership is incorrect, only a certain authority (powers) of the owner will be transferred, provided its (their) separation admissibility. The paper concludes that the specifics of property rights, which forms a triad of indivisible powers, determines the possibility of applying the construction «transfer of ownership» only to cases of translational acquisition of right, in which the acquirer receives a right identical to the right of the grantor both in content and volume.

Part I The Nature of Intangible Property, 7 Intellectual Property

2018 ◽  
Author(s):  
Smith Marcus ◽  
Leslie Nico
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Industrial Design ◽  
Property Right ◽  
Moral Rights ◽  
Intellectual Property Right ◽  
Confidential Information ◽  
The Right

This chapter examines intellectual property. The governing principles relating to intellectual property are very different from the principles that underlie other choses, like rights under contracts or debts. Like shares, intellectual property rights are characterized by specific statutory rules relating to their creation, as well as to their transfer. Intellectual property rights can be divided under six heads: patents; copyright; moral rights; industrial design rights; trademarks; and confidential information. In each case, the holder of the right is able—by virtue of ownership—to prevent others from doing what they otherwise could do. Each of these intellectual property rights has four different aspects: the intellectual property right itself; rights of action for infringement; validity challenges; and licensing.

scholarly journals THE MODERN VISION OF THE SYSTEM OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE

2021 ◽  
Vol 75 (2) ◽  
pp. 52-59
Author(s):  
Victoria Shekhovtsova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
The State ◽  
Point Of View ◽  
Property Right ◽  
Intellectual Property Right ◽  
Creative Activity ◽  
The Right ◽  
Intellectual Potential

The article is devoted to the research of the intellectual property rights system in Ukraine. Intellectual property is the result of the creative activity of any person or group of people. The author studied the categories «intellectual property» and «intellectual property right», investigated the principles of intellectual property and the system of intellectual property rights of Ukraine. In Roman law, there was the term «property», because the «property right» in its classical meaning was formed in Rome, and related to private relationships. Intellectual property is the property of a person that arose as a result of her creativity. However, for our Ukrainian legislation, the expression «intellectual property» is «terra incognita». Yes, intellectual property is studied by such branch legal sciences as: civil law, administrative law, international law, and others. Formed the State Service of Intellectual Property, but the organization of the state system of legal protection of intellectual property, in our difficult times, wants a better one. In the legal literature on intellectual property issues various definitions of «intellectual property right» are given. From a subjective point of view – this is a subjective right, and from an objective point of view – a civil law institute, a set of legal norms that regulate relations in the system of creation and protection of intellectual property. Man, his freedom and rights are the most important value of evolutionary development of society, which manifests itself in the growth of the intellectual potential of the population of each country. Only man possesses intelligence, creative potential and creative abilities. In addition to it, on earth, no living creature can create. Creative activity is the most important aspect of human life, which allows you to convey your talent to society. The consequence of this activity is something new, unique, unique and original. The accumulated products of the human mind are the heritage of the nation, which determine its further development.The Constitution of Ukraine guarantees to the citizens of the state freedom of scientific, artistic, literary and technical creativity, protection of intellectual property rights, moral and material interests arising in connection with various types of intellectual activity. Every citizen has the right to the results of his intellectual, creative activity; no one can use or distribute them without his consent, with the exception of the statutory provisions. The intellectual potential of the nation, in the form of improving education, production, culture, science and technology, needs constant support from our state. The Civil Code of Ukraine for the first time in our national legislation was given a formal definition of the right of intellectual property, as the rights of the individual to the result of intellectual, creative activity or other object of intellectual property rights.

scholarly journals EUROPEANIZATION AND RECODIFICATION. USUFRUCT

2021 ◽  
pp. 40
Author(s):  
R. Maydanyk ◽  
◽  
N. Popova ◽  
N. Maydanyk ◽  
◽  
...  
Keyword(s):  
Property Rights ◽  
Operative Management ◽  
Property Right ◽  
Property Management ◽  
Economic Management ◽  
Legal Structure ◽  
Operational Management ◽  
The Law ◽  
The Right

The article examines the features of usufruct in the European countries of Romano-Germanic law, determines the terms for the implementation in the Law of Ukraine of the best practice of usufruct in terms of Europeanization and Recodification. The peculiarities of usufruct in some countries of Romano-Germanic law, particularly in Germany, France, Poland, the Netherlands, Switzerland, Georgia, Moldova and Russia are studied. Usufruct, which is a flexible and universally recognized in the legal systems of Western Europe property right of personal possession for use, which is treated as an independent property right to another's property in the countries of Roman legal family or a kind of easement in the countries of German legal family, remains unknown to most countries – republics of the former Soviet Union. The law of Ukraine also does not provide for the institution of usufruct and regulates the relationship of long-term use of someone else's real estate through a number of limited property rights (emphyteusis, superficies, the right to economic management, the right to operational management) and obligational legal structures (usually land lease and property management). The authors came to the conclusion that it is necessary to introduce the institute of usufruct into the Ukrainian law by supplementing the Civil Code of Ukraine with a new chapter "Uzufruct", the framework provisions of which are proposed in this paper. In the law of Ukraine it is expedient to recognize usufruct as an independent, different from easement, real right of personal possession for use, which serves as a general provision on emphyteusis (the right to use someone else's land for agricultural purposes). In this regard, the provisions of Chapter 32 of the Civil Code of Ukraine on usufruct should be applied to relations under emphyteusis, unless otherwise provided by the provisions of the Central Committee on emphyteusis and does not follow from its essence. According to its purpose, the legal structure of the usufruct can perform any functions of personal possession for the use of another's property, which allows the use of this legal structure in any area of property use, regardless of whether the purpose is income or other socially useful result (charity, etc.). The absence of usufruct in the national law hinders the effective transformation of legal titles on a state and municipal property by waiving the right of economic management and the right of operative management in terms of recodification of the civil legislation, and does not promote formation of the full-fledged land market and its steady development in the terms of cancellation of the moratorium on sale of the agricultural lands, conducting commodity of agricultural production in Ukraine. Regarding the recodification and cancellation of the Commercial Code, usufruct is the most acceptable replacement of the right of economic management and the right of operative management. Along with long-term lease and property management, the usufruct is functionally similar to the right to economic management and the right to operational management. Unlike property management and lease, usufruct provides for paid or gratuitous use of property in the user's own interest (usufructuary), imperatively defined by law, the content of the rights of participants and a list of grounds for their termination under the rules of property rights.

Third Party Effects in Private Law

2020 ◽  
pp. 107-136
Author(s):  
Ben McFarlane ◽  
Andreas Televantos
Keyword(s):  
Property Rights ◽  
Property Right ◽  
Third Party ◽  
Private Law ◽  
Party Autonomy ◽  
Practical Operation ◽  
Different Types ◽  
The Law ◽  
The Right

This chapter identifies and explores a core task of private law: to determine “third party effects” of transactions. We ask to what extent an A–B transaction may affect C, a party who enters into a subsequent transaction with A, or otherwise interferes with the right claimed by B. We show first that such third party effects are controlled not only by rules relating to legal property rights and equitable interests, but also by parts of the law of agency, of partnerships, and of tort. Secondly, whilst a range of doctrines thus share this function of controlling third party effects, it is important to distinguish between the precise legal form used by each doctrine. Thirdly, we argue that even when considering one particular form, such as that of a legal property right, third party effect is determined by the interaction of different types of rules, with the practical operation of one type of rule modified by the application of a different type. For this reason, attention must be paid to the interaction between the different forms used to govern third party effect. There is a question as to whether the law in this area is unduly complex, but we suggest that, so long as the range of forms tracks the diversity of ordinary transactions, private law usefully enhances party autonomy by offering parties these different means of casting their legal relations.

scholarly journals THE USE OF A PATENT BY CO-AUTH ORS AND HEIRS FOR COMMERCIAL PURPOSES AND SOME ISSUES OF PUBLICITY IN PROCEEDINGS RELATED TO DISPUTES OVER INTELLECTUAL RIGHT PROTECTION

2020 ◽  
Vol 3 ◽  
pp. 24-27
Author(s):  
Tatyana V. Ivanova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Property Right ◽  
Intellectual Property Right ◽  
Special Method ◽  
Procedural Information ◽  
Protecting Intellectual Property ◽  
The Right ◽  
Exclusive Right

The article considers certain situations that arise while using a patent for an invention by co-authors and successors and some issues of publicity in legal disputes over the protection of intellectual property rights. The invention created by a team of authors serves as the basis for the association of co-authors in an organization aimed at the commercial use of a patent. The exclusive right to a patent shall transfer to the successors, but the right to membership in the organization where the patent was supposed to be used may not be transferred, in which case the successors shall have limited access to information on the use of the patent. Various secrets, confidentiality of information, unavailability of information, complexity of protecting intellectual property rights, complex relationship between members of the organization and successors represent only some of the problems that create obstacles to the normal exercise of the right to use a patent for an invention and to get profit from its use. There is no special method to protect intellectual property right, such as the request to provide access to the information on shared use of a patent. The publicity principle, being one of the principles of legal proceedings, provides the condition for defining the truth in the process of proving, the court provides the conditions for the timely receipt by the participants of the required and sufficient procedural information on a particular case. The publicity of information in a legal case is most likely to provide the opportunity to satisfy a claim for the protection of intellectual property right. The right to membership in the organization, in which the patent was supposed to be used when it had been developed by the co-authors of the organization, can be considered as a guarantee for the right to use the patent. The exclusion of at least one element from this system shall create unequal rights and shall make it impossible to achieve a result — receive profit from the use of a patent.

scholarly journals Artificial intelligence as a potential subject of property and intellectual property relations

2020 ◽  
Vol 9 (1) ◽  
pp. 231-250
Author(s):  
Kateryna Nekit ◽  
Vira Tokareva ◽  
Volodymyr Zubar
Keyword(s):  
Artificial Intelligence ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Legal Capacity ◽  
Legal Personality ◽  
Potential Subject ◽  
Property Relations ◽  
The Status ◽  
The Right

The article analyzes the possibility to provide legal capacity to artificial intelligence, which would lead to the emergence of a new subject in legal relations. The aim of the article is to reveal whether it is possible to recognize, that artificial intelligence is able to have property and intellectual property rights. To achieve this aim, dialectical, comparative, dogmatic and legal methods are used. It is noted that according to recent studies, there are more and more grounds for recognizing artificial intelligence as subjects of legal relations. Particular attention in the article is paid to the specifics of the status of artificial intelligence in property relations. The consequences of empowering artificial intelligence with the right to property are analyzed. The conclusion is drawn on the appropriateness of such an approach, since this will solve the problem of liability for damage caused by artificial intelligence. The possibility of endowing artificial intelligence with property on the basis of trust before resolving the issue of its legal personality is proposed. Modern approaches to the problem of rights to objects of creativity created by artificial intelligence are considered in the article. The options for the distribution of rights to such objects are analyzed depending on the degree of human participation in their creation and on the level of complexity of the artificial intelligence that creates these objects. The general conclusion is made about the possibility to qualify artificial intelligence as a subject of legal relations, in particular, of property and intellectual property relations.

scholarly journals Guarantees for Exercising and Protecting the Property Right of Internally Displaced Persons

2020 ◽  
Vol 91 (4) ◽  
pp. 130-139
Author(s):  
Z. I. Knysh
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Legal Status ◽  
Property Right ◽  
Internally Displaced Persons ◽  
Displaced Persons ◽  
Internally Displaced ◽  
Concrete Action ◽  
The Difference ◽  
The Right

The author has researched property relations of internally displaced persons, the peculiarities of which are determined by their legal status and the lack of sufficient legislative regulation to protect their property status. It has been emphasized that the realization of property rights occurs through the will and actions of the owner, which must fully comply with legal requirements, because the right of the owner to actions and the actions themselves – differ from each other. The difference between the content of a subjective right and its realization is, first of all, that the content of a subjective right covers only the possible behavior of an authorized person, and the realization of the right is a real, concrete action that leads to legal consequences. Therefore, the realization of property rights by internally displaced persons is absolute, i.e. absolute civil rights apply to an indefinite number of persons, except for the right of the owner. The legal categories of “realization”, “protection” and “defense” have been analyzed as integral components of the property right of internally displaced persons. It has been stated that protection is the category of the normal state of existence of the subjective right, and defense is the category of the subjective right in a violated state. It has been proved that in most cases people who have left their place of residence due to armed conflict or other forms of violence do not have a real opportunity to realize actual and sometimes legal (for example, due to the lack of proper documents on the property) possession. It indicates the need to introduce guarantees that will ensure not only the realization of property rights by internally displaced persons, but also the safety of their property. It has been offered to understand the guarantees of property rights of internally displaced persons as a set of methods, means and procedures aimed at ensuring the realization of their property rights. The author has formulated own definition and has suggested the classification of guarantees of property rights of internally displaced persons, with their division into general and special, as well as guarantees of the realization of the rights and guarantees of protection.

“Ownership” “Assets” and Transferability of “Property Rights”

1993 ◽  
Vol 27 (4) ◽  
pp. 652-660
Author(s):  
Joshua Weisman
Keyword(s):  
Property Rights ◽  
Property Right ◽  
Central Feature ◽  
Property Law ◽  
Critical Survey ◽  
The Right ◽  
Living Person

1. The connection between the proprietary nature of a right and its transferability was discussed at length in my article, “Some Fundamental Concepts of Property Law: A Critical Survey”. The view expressed there was criticised by Prof. Tedeschi in two articles: the first, “On the Right of Preemption in Land”, and the second — “Property and Transferability — Ownership of Organs Taken from a Living Person”. The latter included criticism of certain things I had written in my article, “Organs as Assets”, in relation to the connection between an object constituting an “asset” and it being “transferable”.According to my approach, transferability is a central feature of a property right, and of the nature of a thing as an “asset”. Prof. Tedeschi, however, believes otherwise.

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.

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