GROUNDS FOR INITIATING INDIVIDUAL INSOLVENCY PROCEEDINGS UNDER THE LEGISLATION OF UKRAINE AND GERMANY

2018 ◽  
Author(s):  
Rodion Poliakov ◽  
Keyword(s):  
Positive Impact ◽  
German Law ◽  
Legal Regulation ◽  
Unsuccessful Attempt ◽  
Judicial Practice ◽  
The Status ◽  
Bankruptcy Code ◽  
The Individual ◽  
Insolvency Proceedings ◽  
Qualitative Characteristics

The article examines the grounds for initiating individual insolvency proceedings, which are regulated by Ukrainian and German law, as well as current positions of judicial practice in this area. Proposals are made to improve the provisions of the Bankruptcy Code of Ukraine and the Law of Ukraine «On Judicial Fees», which will have a positive impact on the legal regulation of insolvency of individuals and law enforcement practice in this area. It is established that in Ukraine the legislator uses not only the principle of insolvency or threat of insolvency to open an insolvency of a citizen, as is the case with a legal entity, but also payment inability. The author notes that using the principle of insolvency, the Ukrainian legislator in one case indicates the minimum amount of debt, and in another sets only the terms of suspension of payments and the minimum percentage of arrears, and in determining the threat of insolvency and payment inability does not provide any quantitative and qualitative characteristics. It is suggested that debtors must have the property in necessary amount to cover court costs when initiating insolvency proceedings. It is proposed to establish a court fee for filing an application for insolvency proceedings, differentiating its size depending on whether the individual debtor has the status of an individual-entrepreneur. It is noted that under German law, the procedure of insolvency of individuals may be opened at the request of both the debtor and the creditor. It is established that the opening of individual insolvency proceedings in Germany is possible only if there are additional grounds, such as: unsuccessful attempt of pre-trial settlement of debt within six months before the filing of the application for initiation of proceedings; availability of a certificate issued by a special entity and certifying a failed attempt of a pre-trial settlement; submission of an application for discharge from residual debt or an application for refusal of such discharge.

scholarly journals Проблемные аспекты правового регулирования правил поведения судьи во внесудебной деятельности

2021 ◽  
Vol 70 (6) ◽  
pp. 31-34
Author(s):  
Т.Н. Ёркина
Keyword(s):  
Legal Regulation ◽  
Comprehensive Analysis ◽  
Judicial Practice ◽  
The Status

The article is devoted to the problems of legal regulation of the rules of conduct of a judge in non-judicial activities. the author has set the task to conduct a comprehensive analysis of such rules, to consider them on practical examples, to identify problems and to suggest possible ways to solve them. the paper analyzes the current legislation, judicial practice and highlights the main offenses of a judge in extra-judicial activities, which may detract from the authority of the judiciary. it is concluded that in practice, the basis for the dismissal of a judge is more often non-judicial activity, which detracts from the authority of the judiciary and the status of a judge

scholarly journals ON QUESTION OF THE PRINCIPLE OF EQUITY IN THE ENFORCEMENT OF MONETARY OBLIGATIONS

2018 ◽  
Vol 1 (2(14)) ◽  
pp. 99-102
Author(s):  
Halyna Volodymyrivna Zadorozhnia ◽  
Yurij Anatoliyovych Zadorozhnyi ◽  
Ruslana Оlexandrivna Kotsiuba
Keyword(s):  
Research Study ◽  
Legal Regulation ◽  
The State ◽  
Entrepreneurial Activity ◽  
Target Setting ◽  
The Status ◽  
Legislative Proposals ◽  
The Subject ◽  
Legislative Changes ◽  
The Individual

Urgency of the research. Study of the problem of implementation of monetary obligations in the field of banking relations is determined by violation of the principle of equity in relation to individuals. Target setting. The state has actually removed from the regulation of credit relations in the field of ensuring the fulfilment of monetary obligations that arise between the individual and the bank. Actual scientific researches and issues analysis. Many modern scientists (I. Bezklubyi, T. Bodnar, A. Dzera, A. Kolodiy, V. Lutz, I. Opadchiy and others) studied the institution of the fulfilment of monetary obligations. Uninvestigated parts of general matters defining. Behind attention of scientists was left the issue of protecting the rights of individuals who have monetary obligations to the bank and do not have the status of the subject of entrepreneurial activity. The research objective. The purpose of the article is to develop legislative proposals taking into account international and foreign practice in the aspect of protecting the rights of individuals who have monetary obligations to the bank. The statement of basic materials. Specifics of legal regulation of contractual relations is determined between banks and recipients of funds in the aspect of liability for late fulfilment of monetary obligations, propositions to the legislation were substantiated. Conclusions. It is offered to solve the problem of violation of the principle of fairness in the aspect of fulfilment of monetary obligations in the field of banking relations through legislative changes.

scholarly journals Reception of Social Legal PrinciplesState Law-Making Institutions

2018 ◽  
Vol 5 (3) ◽  
pp. 58-62
Author(s):  
A Yu Garashko
Keyword(s):  
Positive Impact ◽  
Public Support ◽  
Legal Regulation ◽  
State Standards ◽  
Legal Principles ◽  
State Institutions ◽  
Functional Methods ◽  
Standards Of Conduct ◽  
The Individual ◽  
Methods Of Learning

The purpose of this article is to analyze the feasibility and the basic mechanisms of borrowing of the individual benefits of the standards of conduct, the current in society (public legal principles), the activities of state authorities. The author comes to the following conclusion: reception of the socio-legal basis of state institutions capable of providing public support for the implementation of state standards; positive impact on the rule of law and the lawmaking process; to determine the restoration of the unity of law as a system that combines public and state foundations; seamlessly integrate the benefits of state and public began legal regulation. The methodology used in the preparation of this study presented a systematic, functional methods of learning; methods of induction, comparison and analysis. In addition, the author relied on the General dialectic method of cognition. Applications received by the author’s findings and conclusions are the theory of state and law, jurisprudence, philosophy of law, constitutional law.

scholarly journals Liability for environmental damage and insurance coverage under German law

2020 ◽  
Author(s):  
Manfred Wandt
Keyword(s):  
Insurance Coverage ◽  
German Law ◽  
Environmental Damage ◽  
Environmental Consequences ◽  
Energy Company ◽  
Environmental Liability ◽  
Liability Law ◽  
The Status ◽  
Recent Developments ◽  
The Individual

Abstract“Protection of the environment“ and “sustainability“ are more significant than ever. The legal system contributes an important share to the protection of the environment. However, an overview of the German private environmental liability law shows that conventional tort law is not a suitable basis for civil liability for the environmental consequences of officially approved emissions of greenhouse gases. In general, one of the main problems of private environmental liability law lies in proving the individual causality of the conduct of an emitter, as the lawsuit of a Peruvian homeowner against a German energy company pending before the Higher Regional Court of Hamm illustratively demonstrates. The outcome of this lawsuit, which may have an outstanding significance for the status and development of private environmental liability law in Germany, is awaited with great anticipation. The article also briefly examines recent developments in private environmental liability law outside Germany and the question to what extent insurance can be an instrument to protect the environment.

scholarly journals Legal Status of Animals in Ukraine and Poland

2019 ◽  
Vol 1 ◽  
pp. 59-70
Author(s):  
Roman Marusenko
Keyword(s):  
Legal Status ◽  
Legal Regulation ◽  
Judicial Practice ◽  
The Status ◽  
Present Understanding

The article deals with the analysis of animals’ legal status via examples of Polish and Ukrainian legislation. The examples of inaccurate usage of legal terminology is this sphere (concerning subjects and objects) are analyzed. Legislative attempts to assign the status of subjects of law to animals in Ukraine and Poland are discovered. Remarkable examples from world judicial practice are revealed. Historical parallels are shown. Conclusion of possible solutions taking into account present understanding of nature of law and the aim of proposed changes in legal regulation is made.

scholarly journals The role of the advocate in the ensuring the unity of the judicial practice in civil cases

2021 ◽  
Author(s):  
O. I. Popov
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Civil Process ◽  
Judicial Practice ◽  
Active Subject ◽  
The Supreme Court ◽  
The Status ◽  
Civil Cases ◽  
Grand Chamber ◽  
The Individual

The presented work highlights the possible ways of the advocate's influence on the implementation by the Supreme Court of the function of ensuring the unity of judicial practice in civil cases. Without denying the status of the Supreme Court as a central institution in the field of forming unified approaches to law enforcement, attention is focused on the fact that the dynamics of procedural legislation in terms of regulating procedures for access to cassation in civil cases allows us to rethink the mission and content of the representative function of a lawyer at the appropriate stage of the civil process. Based on the analysis of the current edition of the Civil Procedure Code of Ukraine, it is argued that the ability of the advocate to be an active subject of influence on the formation of a unified law enforcement practice is most noticeably manifested when overcoming existing filters of access to cassation, in particular, when applying to the Supreme Court with a cassation appeal, which today demands from the advocate extended argumentation when proving the existence of grounds for cassation revision, with a thorough analysis of the established practice of the cassation court and, at times, giving reasons for the need to deviate from such practice and form new law enforcement approaches.          Along with the above, among the individual methods of influence of the advocate on ensuring the unity of judicial practice, the filing of a petition for the suspension of proceedings on the basis of a review of a court decision in similar legal relations (in another case) by way of appeal by the chambers of the Supreme Court, as well as a petition to transfer the case for consideration The Grand Chamber of the Supreme Court in connection with the need to resolve an exceptional legal problem.

scholarly journals Legislative Approaches for Regulation of the Bankruptcy: State and Prospects

2016 ◽  
Vol 2 (3) ◽  
pp. 21
Author(s):  
Margarita S. Bachvarova
Keyword(s):  
Legal Regulation ◽  
Theoretical Concept ◽  
Legal Systems ◽  
Legal Analysis ◽  
The Us ◽  
Judicial Proceedings ◽  
Common Concept ◽  
Bankruptcy Code ◽  
Characteristic Features ◽  
The Individual

The present article is a comprehensive research focused on the issue of legislative approaches for regulation of bankruptcy in individual countries. The occurrence of economic crises and the globalization in international relations put forward the issue of preserving viable enterprises regardless of any financial hardships arisen and any risk of initiating a court procedure of bankruptcy. The establishment of updated legislation is inextricably bound up with the building up of a theoretical concept of insolvency based on the contemporary doctrinal achievements and practice. The comparative legal analysis of regulations shows the efforts put in science for the creation of a common concept and approach to bankruptcy issues. In this relation, the subject of scientific and research interest are the characteristic features of the legal regulations for handling insolvency in individual countries, determined by their belonging to the two main legal systems: the system of common law and the continental legal system (civil law). The scientific thesis in the present study is that regardless of the specific features of the historical and legal regulation of the bankruptcy concept, currently, a process of introducing rehabilitation procedures of the US legislation (Chapter 11 of Bankruptcy Code) into the individual legal systems of a number of countries in Europe is going on. In this sense, a trend is arising of applying a single legislative approach related to the concept of fresh start of conscientious entrepreneurs and an opportunity of sanitation of their enterprises before the initiation of formal judicial proceedings of bankruptcy on the basis of mutual concessions and compromises made by the creditors.

Subsidiary Liability of Actually Controlling Persons in Cases of Bankruptcy: Theory and Judicial Practice

2020 ◽  
Vol 11 ◽  
pp. 72-85
Author(s):  
A. V. Efimov ◽  
Keyword(s):  
Legal Regulation ◽  
Practice Research ◽  
Legal Entity ◽  
Scientific Methods ◽  
Judicial Practice ◽  
The Status ◽  
Degree Of Certainty ◽  
General Scientific ◽  
Definition Of ◽  
Actual Control

Currently, the problem of subsidiary liability of controlling persons is complicated by the specifics of the status of persons who are not in legal relations with the debtor, but actually control it. The identification of actually controlling persons is difficult due to the insufficient certainty of the signs of actual control. It is important to note that the degree of certainty of the signs of actual control at the level of legal regulation affects the accuracy of the qualifications of persons as controllers when considering specific court cases. The purpose of this article is to formulate theoretical conclusions on the identification and prosecution of actually controlling persons on the basis of judicial practice. Research objectives: assessment of the legal regulation of subsidiary liability of controlling persons; assessment of situations of actual control; identification of signs of actual control. This article is based on general scientific methods (systemic, functional, a group of logical methods such as deduction, induction, analysis, synthesis) and special legal methods (formal legal, legal modeling method). As a result, it was concluded that the definition of controlling persons includes both persons who are in legal relations with a legal entity (nominal control), and persons who are not in legal relations with a legal entity, but nevertheless have the ability to provide actual the control. Since the signs of actual control are insufficiently defined at the level of legal regulation, problems of subsidiary liability of actually controlling persons arise in judicial practice. It was revealed that the courts qualify actual control due to circumstances that indicate either the exercise of specific powers of the debtor's bodies directly by the actually controlling persons; or that the powers of the debtor's bodies are exercised by nominal controlling persons, but their will is formed by actually controlling persons.

Complex Branches in the System of Law and in Legislation System

2016 ◽  
Vol 4 (11) ◽  
pp. 0-0
Author(s):  
Евгений Тонков ◽  
Evgeniy Tonkov ◽  
Владимир Синенко ◽  
Vladimir Sinenko
Keyword(s):  
Social Relations ◽  
Legal System ◽  
Legal Regulation ◽  
Individual Branch ◽  
Essential Unity ◽  
Single Method ◽  
Methodological Approaches ◽  
The Individual ◽  
Law Construction ◽  
Qualitative Characteristics

The article deals with the reasonableness of inclusion into legal science and system of law new complex branches of law. It often occurs in spite of the generally recognized principles of systems of law construction. The authors criticize the constant increase in the number of complex branches of law, assuming that complex branches can only exist in legislation. Isolation of complex branches in the legal system is an attempt to summarize the phenomenon on the basis of different methodological approaches. Formation of the system of law as opposed to the system of legislation is carried out on the basis of essential unity but not functional unity relations. Essential unity of social relations is characterized by the homogeneity of their qualitative characteristics due to socio-economic basis prevailing in a society. The building of the legal system on the basis of essential unity of the controlled relationship allows to apply a single method of legal regulation and to identify the presence of systemic relations between the norms of the individual branch of law and specific principles of legal regulation.

Adapting the Human Rights System to the Cyber Age

2020 ◽  
Vol 23 (1) ◽  
pp. 249-289
Author(s):  
Alena F. Douhan
Keyword(s):  
Human Rights ◽  
International Relations ◽  
Legal Regulation ◽  
Fourth Generation ◽  
Technical Developments ◽  
The Status ◽  
The Individual ◽  
New Generation ◽  
The Impact ◽  
Enormous Number

Cyber technologies have changed all spheres of contemporary life at both the national and international levels. At the same time, legal regulation in the sphere stays far beyond technical developments. As a result, an enormous number of new terms and concepts have been invented in the area. It is maintained sometimes that the changes are so drastic that the very notion of sovereignty is outdated and the individual becomes a key actor of international relations. Consequently, there is a clear need to assess the impact of cyber technologies on the enjoyment of human rights. Due to the absence of proper legal regulation, the necessity or possibility to state the emergence of the new ‘fourth’ generation of human rights on the Internet is already discussed. The present article focuses on the status of different categories of human rights in the digitalized world. It concludes that the development of cyber technologies may hardly cause the emergence of a new generation of human rights but rather results in the need to adapt the whole system of the existing human rights to the emerging reality.

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