PUBLIC ADMINISTRATION AS AN ORGANIZATIONAL AND LEGAL MEANS OF PROTECTION OF PROPERTY RIGHTS

2017 ◽  
Author(s):  
Ihor Binko ◽  
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Public Administration ◽  
Private Property ◽  
Civil Law ◽  
Public Law ◽  
Point Of View ◽  
Management Decision ◽  
Public Property ◽  
Procedural Basis

The article explores the idea that public administration can act as an independent means of protection of civil rights, complementing such tools as civil law types of protection of rights, which consist in proving the legality of possession of the property itself. Protection of property rights is traditionally considered a field of private law, built on the principles of respect for private property, equality of arms, independence of the court and a fair settlement of legal disputes. It is stated that, unlike civil law methods of protection of rights, public administration as a method of protection of rights is aimed not at protecting the issue of legality of possession but at protecting the registration record from wrongful distortion. A large array of rules on the protection of private property is of a public law nature and is associated with the administration of relevant records. It is argued that from the point of view of protection of property rights, in particular property rights to real estate and their derivatives - the rights of the mortgagee, rights of claim, which are notarized, etc., the activities of state bodies are an organizational means of protecting such rights in the form of public administration. Publicity means that any decisions regarding changes in registered rights are made in public and, in accordance with the procedures provided by law, become public property, including stakeholders and an indefinite number of entities. It is determined that the essence of administration is that rights are protected on a procedural basis and the need for certain legal preconditions for making a management decision on changes in registered rights cannot be replaced by other legal preconditions, or a decision cannot be made without sufficient legal grounds.

scholarly journals INSTITUTE OF OWNERSHIP IN THE POST-COMMUNIST REPUBLIC OF ALBANIA

2021 ◽  
Vol 53 (4) ◽  
pp. 121-132
Author(s):  
Besmir Alushi ◽  
◽  
Erjola Aliaj ◽  
Keyword(s):  
Civil Rights ◽  
Private Property ◽  
Point Of View ◽  
European Convention ◽  
Private Ownership ◽  
Political Systems ◽  
Positive Part ◽  
Public Property ◽  
Domestic Legislation ◽  
The Republic

Ownership as a genuine institute of civil rights in the Republic of Albania began to be considered complete only after the change of political systems. Until this period, ownership was a fragmented and incomplete institute due to the fact of the existence of public property, which was one of the principles of the ideology of the monist system. With the change of the corpus of domestic legislation and the signing of international agreements ratified in civil law, the concept of private property will undergo a fundamental change. Building a civil code totally different from the existing one would bring about a different treatment of private property. In the new code, private ownership would be of paramount importance both from a doctrinal and practical point of view. The implementation of the legislation would be a challenge in itself which, in addition to the positive part, will also face issues that are still part of the law practices. The focus would be on restitution and compensation of property to former owners but at the same time the private property institute would address in itself the new ways of acquiring probationary property, property protection and everything else related to this institute of which is considered a fundamental right by the Constitution of the Republic of Albania and the European Convention on Human Rights.

scholarly journals Režimy správního práva

AUC IURIDICA ◽  
2021 ◽  
Vol 67 (4) ◽  
pp. 61-76
Author(s):  
Josef Staša
Keyword(s):  
Public Administration ◽  
Civil Law ◽  
Administrative Law ◽  
Public Law ◽  
Point Of View ◽  
European Law ◽  
Specific Content ◽  
Administrative Regulation ◽  
Multilateral Regimes

The administrative law regime means a typical legal construction, which expresses the way of connecting an administrative law norm with this norm anticipated administrative law relationship through a certain legally significant fact. From the point of view of public administration addressees, it is appropriate to differ regimes of granting rights and regimes of imposing obligations primarily. Many regimes have a superstructure (secondary) nature, they assume the earlier existence of other (primary) rights and obligations. In addition to unilateral regimes, there are also bilateral or multilateral regimes of administrative law, which are an expression of cooperation in connection with the performance of public administration. From the point of view of public administration bodies, it is possible to distinguish several (administrative) regimes of exercise of their competence (powers). A kind of complement is the regimes that determine the boundaries of administrative regulation (between public law and civil law; between national law and European law). The application of some regimes or their combination typically results in the general administrative law concepts (= the tangles of administrative law norms cemented by the need and effort to solve certain idealized situations, deprived of their specific content). The research of administrative law regimes may perhaps contribute to a more plastic and systematic doctrinal characterization of material administrative law.

scholarly journals TOWARDS A TAXONOMY FOR PUBLIC AND COMMON PROPERTY

2019 ◽  
Vol 78 (1) ◽  
pp. 124-147 ◽  
Author(s):  
Christopher Rodgers
Keyword(s):  
Property Rights ◽  
Natural Resources ◽  
Environmental Governance ◽  
Common Property ◽  
Private Property ◽  
Effective Protection ◽  
The Public ◽  
Property Interest ◽  
Public Property ◽  
New Strategies

AbstractThis article argues that public property rights should be recognised as a separate category of property interest, different and distinct from private and common property interests and conferring distinctive rights and obligations on both “owners” and members of the public. It develops a taxonomy to differentiate private, public and common property rights. The article concludes that it is a mistake to think in terms of “private property”, “common property” or “public property”. The division and allocation of resource entitlements in land can result in private, common and public property rights subsisting over the same land simultaneously, in different combinations and at different times. The categorisation of property interests in land (as private, common or public) may also shift and change from time to time. The article considers the importance of distinguishing between private, common and public property interests for developing new strategies for environmental governance, and for implementing the effective protection of natural resources.

Civil legal method of protection of intellectual property rights

2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Svitlychnyy Oleksandr ◽  
◽  
Korotun O.M. ◽  
Keyword(s):  
Intellectual Property ◽  
Civil Rights ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Civil Law ◽  
Legal Analysis ◽  
Procedural Law ◽  
Legal Method ◽  
Legal Literature ◽  
Subjective Rights

The article draws attention to the specifics of protection of intellectual property rights in Ukraine by civil and special legislation, the rules of which are designed to protect the subjective rights of right holders and other participants in legal relations in the field of intellectual property. Some aspects of the legal nature of jurisdictional remedies are studied. Attention is paid to the specifics of protection of intellectual property rights by civil law, which consists primarily in the methods of protection provided by procedural law. The legislation, the norms of which guarantee the protection of intellectual property and the ways of protection of civil rights are outlined. The existing in the legal literature different views on the classification of methods of protection of property rights are analyzed. The legal analysis of the application of the vindication claim as a means of protection of intellectual property rights is carried out and the author's proposals are formulated. Keywords: civil law, intellectual property, lawsuit, protection

Constitutional basis for public property in the context of the creation of a legal entity of public law

2020 ◽  
Vol 29 (5) ◽  
pp. 134-149
Author(s):  
Vladimir Nizov
Keyword(s):  
Property Rights ◽  
Russian Federation ◽  
Historical Analysis ◽  
Public Law ◽  
The State ◽  
The Public ◽  
Public Property ◽  
The Russian Federation ◽  
The Difference ◽  
The Right

The article discusses problems of the constitutional regulation of property rights and property itself. The research has been narrowed down to the features of public property regulation in the Russian Federation. The relevance of the research is explained by the process of the reform in the public property administration in Russian Federation, which has transferring of the state property to some legal entities of public law as distinguished feature. The author proposes the historical analysis of the property regulation’s development and the role of the Constitution in this process. The comparative instruments are used to show the main preconditions and trends of public property regulation in Russia and other countries. The author argues the Russian Federation is going on the process of the property regulation construction and the modern stage sees the Constitution as a main axiological filter for that. Meanwhile, the Russian legal system has several obstacles in this way: the limitation of the direct force of the Constitution, the spoiled separation of power, etc. The importance of the system of the check and balances in the property administration is noted. Thus, the research explains the differences between the system of the separation of power in the United Kingdom, Ukraine, and Russia. The author discloses the distinguishing features of the public property the state needs to account in the process of the property transition to public law entities. The critic overview of detailed property regulation in the Constitution’s text is expressed. The author notes constitutional provisions that regulate property issues are features of the post-socialist states. The difference between property rights and sovereign rights is also enclosed in the article. The justification of the right to administrate public property is provided, the research explains the importance of the justification in public property administration and its role in democratic societies, especially in the Russian Federation. The privatization and decentralization of the public property administration are needed to be explained the effectiveness and stability of these decisions. Additionally, the author argues that public property must have more concrete regulation because it needs more complex rules for just and effective administration. The conclusion of the article explains the linkage between the constitutional ideal and the development of public property regulation.

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.

THE ESSENCE OF THE PUBLIC LAW ENTITIES

2019 ◽  
Vol 5 (1) ◽  
pp. 237-272
Author(s):  
Krzysztof Chochowski
Keyword(s):  
Civil Rights ◽  
Public Administration ◽  
Public Law ◽  
Public Affairs ◽  
Public Authority ◽  
Administration System ◽  
The Public ◽  
State Supervision ◽  
Public Rights ◽  
Over Time

Public law entities play a significant role in a democratic legal state and its public administration system. They enable the active participation of an individual in the exercise of public authority and involvement in public affairs. They help to build a civil society and protect against the phenomenon of a crisis of democracy. Above all, however, they serve to protect human dignity as a source of freedom and human and civil rights. For this reason, the issue of determining their essence is important. It is not easy because it has undergone a metamorphosis over time and it is not one category. This article presents considerations regarding the essence of public law entities. It pointed to the necessity of: possession of public rights by entities; recognition of their public-law subjectivity; granting them public authority; owning own cases carried out independently; being subject to state supervision.

scholarly journals The Features of the Content and Subject Composition of Settlement Agreements in Cases of Invalidity of Transactions

2020 ◽  
Vol 17 (3) ◽  
pp. 310-319
Author(s):  
Valeriya Goncharova
Keyword(s):  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
Public Law ◽  
Civil Code ◽  
Point Of View ◽  
Relevant Category ◽  
Settlement Agreements ◽  
The Subject ◽  
The Russian Federation

Settlement agreements in civil and arbitration proceedings are one of the most convenient and effective ways to resolve disputes arising between participants in civil legal relations. At the same time, within the framework of some civil disputes, the content of settlement agreements has significant specificity, and sometimes – due to the peculiarities of the subject composition and the merits of the case – they cannot be applied at all for the purpose of reconciling the parties. An example of such disputes are cases related to the recognition of the transaction as invalid and the application of the consequences of the invalidity of the transaction, the legal regulation of which is unique. The economic reasons for the invalidity of transactions predetermine the peculiarities of the content of settlement agreements in the relevant category of cases, limiting it exclusively to the procedure for fulfilling restorative obligations and obligations to compensate for losses. This circumstance is due to the fact that, from the point of view of the dynamics of civil legal relations, an invalid transaction introduces uncertainty in the ownership of property and the distribution of rights and obligations of the participants in legal relations, which can be eliminated only by restoring the situation that existed before the conclusion and execution of the transaction with a defect. The current civil law regulation in this part (Article 4311 of the Civil Code of the Russian Federation), which allows the conclusion of analogues of amicable agreements in cases of invalidity of transactions involving other, in addition to restitution, the consequences of the invalidity of transactions, in this regard, cannot be recognized as satisfactory. Contestation of the transaction by “another person specified in the law” (Article 166 of the Civil Code of the Russian Federation), as well as in the interests of third parties by specially authorized entities (procedural plaintiffs), the possibility of participation in a completed and executed transaction of public law entities determine the raising of questions about the possibility of concluding amicable agreements by these entities. It is noted that these subjects, as follows from the analysis of domestic civil, civil procedural, administrative and family legislation, being interested in resolving the case on recognizing the transaction as invalid and on the application of the consequences of its invalidity, do not participate in its execution, and therefore cannot determine the procedure for the fulfillment of obligations arising from it.

scholarly journals Legally Binding Relationships with Regard to Digital Objects of Civil Rights

Lex Russica ◽  
2020 ◽  
Vol 73 (10) ◽  
pp. 21-31 ◽  
Author(s):  
O. S. Grin
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
General Rule ◽  
Point Of View ◽  
Digital Currency ◽  
Legal Nature ◽  
Digital Objects ◽  
The Law ◽  
The Right ◽  
Exclusive Right

The paper, based on the analysis of the legal nature of new digital objects of civil rights (digital rights, digital currency), makes conclusions concerning possible models of contractual relations arising from object’s data.The author relies on the fact that in relation to the category “a digital right” an independent object can be recognized only in connection with the peculiarities of the form of the object (the form in which the property rights are fixed) rather than its content. Token is seen as a technical concept. i.e. a digital way of fixing property rights. The paper substantiates that the retributive disposal of the digital right (both as a utilitarian digital right and a digital financial asset), according to which the digital right acquirer in order to transfer the right in question undertakes to pay a certain amount of money, under the general rule, should be qualified as a contract for the sale of a digital right. At the same time, in each case this also refers to the transfers the subject matter of which covers the transfer of a separate property right as an object of civil rights (cashless money, a book-entry security, a law of obligation (claims)) classified by law as a digital right.From the author’s point of view, digital currency in the system of objects of civil rights can be qualified only as “other property” in compliance with the the sui generis principle. It is concluded that transactions with digital currency should be classified as non-defined contracts. Contractual legal relations aimed at exchanging various objects for digital currency, in cases not contrary to the law, by analogy of the law, can be regulated under the rules applied to the contract of sale, the exclusive right alienation agreement or license agreement. Based on the special provisions of the law, a legally binding relationship regulating the digital currency, provided the tax authorities are not informed about such possession and transactions with such an object, has features of a natural obligation.

scholarly journals Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

2021 ◽  
pp. 240-262
Author(s):  
V. G. Golubtsov ◽  
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Modern Science ◽  
Legal Regulation ◽  
Public Law ◽  
Procedural Law ◽  
The One ◽  
The Right ◽  
Substantive Law ◽  
The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

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