Features of Application of Article 392 of the Civil Code of Ukraine upon Recognising the Right of Ownership of Newly Created Real Estate (A Case Study of Judicial Practice)

2020 ◽  
Vol 27 (2) ◽  
pp. 99-117
Author(s):  
A. B. HRYNIAK ◽  
N. V. MILOVSKA
Keyword(s):  
Real Estate ◽  
Civil Code ◽  
Judicial Practice ◽  
The Right

scholarly journals A vagyoni értékű jogok apportálhatósága és az egységes szabályozás hiányának problematikája

2015 ◽  
Vol 12 (3-4) ◽  
pp. 114-120
Author(s):  
Zóra Zsófia Lehoczki
Keyword(s):  
Real Estate ◽  
Income Tax ◽  
Civil Code ◽  
Personal Income ◽  
The Other ◽  
Personal Income Tax ◽  
The Real Estate ◽  
Judicial Practice ◽  
Other Hand ◽  
The Right

According to the new Hungarian Civil Code, the funders of the legal entities have to make contributions to the authorised capital and the two forms of these contributions are the contribution is cash and the contribution in kind. The regulation states that proprietary rights can also be transferred to the capital of businness accociations, by those funders, who are entitled to demise them. The judicial practice unanimously defined the rules in those cases, when the object of contribution in kind is a certain proprietary right, especially when the right is connected to the real estate. On the other hand, the Civil Code does not contain a list of those proprietary rights, which can be transferred to the authorised capital and unfortunately, different acts contain different lists of these rights. The three mentioned acts are the following: the personal income tax act, the act about the fees and the accounting act. All of them contain a list of proprietary rights and some of the items are regulated by all the three of them but most of the items are different, which means it is impossible to create an accurate list of these rights. For example, the list in the personal income tax act contains only five items, on the other hand, the accounting act contains two lists and both of them are unfinised. Because of the lack of unified rules, it is impossible to define which proprietary rights can become the objects of contribution in kind and this misfortunate situation causes a lot of unwanted indefinability and states a lot of questions. In my essay I introduce this problem and I use a chart to illustrate the differences between the mentioned lists. In my opinion, this problem could be solved with an unified list, which is normative for every regulation in connection with the proprietary rights or the Civil Code should contain a list of those proprietary rights, which can be the objects of contribution in kind.

Features of Application of Article 392 of the Civil Code of Ukraine Upon Recognising the Right of Ownership of Newly Created Real Estate (A Case Study of Judicial Practice)

2020 ◽  
Vol 27 (2) ◽  
pp. 77-90
Author(s):  
Andrii Hryniak ◽  
Nadiia Milovska
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Legal Regulation ◽  
Civil Code ◽  
Practical Significance ◽  
Real Property ◽  
Real Right ◽  
Judicial Practice ◽  
Specific Object ◽  
The Right

The study of the specific features of recognition of ownership of newly created real estate is conditioned by its purpose, which is to determine the grounds for application of remedy upon recognising ownership of newly created construction object, stipulated by Article 392 of the Civil Code of Ukraine. The purpose of the study also includes identification of gaps and discrepancies in the legislation of Ukraine and judicial practice, which arise during application of the appropriate remedy for a substantive right, and the development of proposals for their elimination. In this regard, the main method of this study was comparative law, which allowed to identify and analyse different approaches to the legislative consolidation and application of such a remedy as the recognition of property rights. Upon concluding an agreement on sale and purchase of property rights to immovable property, the buyer receives a limited real right, under which it is endowed with certain, but not all rights of the property owner. Nevertheless, in recognising the ownership of newly created real estate, the study proves the feasibility of applying the method of protection stipulated in Article 392 of the Civil Code of Ukraine. It is substantiated that the buyer, who has performed its monetary obligations under the agreement on sale and purchase of real property rights, having fully paid the contractual value, is considered to have committed actions aimed at the occurrence of legal facts necessary and sufficient to obtain the legal claim for the transfer of ownership of the construction object. In this regard, it has been proved that the effectiveness of the remedy stipulated by Article 392 of the Civil Code of Ukraine, which is applied upon recognising the ownership of newly created immovable property, is aimed at levelling the possibility of further unlawful actions of third parties in relation to such property, and is achieved through the enforcement of judgement by recognition of ownership of a specific object, and in case of its destruction – by obtaining appropriate compensation. The practical significance of the study of the application of Article 392 of the Civil Code of Ukraine upon recognising the ownership of newly created real estate is that its results are designed to promote further research, to improve the legal regulation of relations, the object of which is newly created real estate, to optimise the implementation of property rights and law enforcement in this area

Land withdrawal for state and municipal needs

2020 ◽  
pp. 46-50
Author(s):  
M. N. Gavrilyuck
Keyword(s):  
Real Estate ◽  
Territorial Planning ◽  
Judicial Practice ◽  
The Right

The topical issues of land plots withdrawal for state and municipal needs are considered in this paper. Judicial practice on this issue is analyzed, as well as the problems of searching for the right holders of the seized real estate. In addition, the article discusses the "guarantees" of compliance with the principle of withdrawal impossibility if the placement of real estate objects is not provided for by documents of territorial planning.

The Legal Rayonnement of Rebel Justice: Recognition, Complementarity, and Kurdish Courts

2021 ◽  
pp. 355-451
Author(s):  
René Provost
Keyword(s):  
Regional Government ◽  
Armed Groups ◽  
Northern Iraq ◽  
North East ◽  
The North ◽  
Judicial Practice ◽  
Kurdistan Workers Party ◽  
The Right ◽  
Criminal Matters

Chapter 4 analyses the possible legal recognition of insurgent justice by other actors, using the judicial practice of three independent Kurdish non-state armed groups in the Middle East as a case study. The Partiya Karkerên Kurdistan (PKK, Kurdistan Workers’ Party) has been engaged in a bitter armed struggle with Turkey since 1984, with rear bases in northern Iraq and Syria. The Partiya Yekîtiya Demokrat (PYD, Democratic Union Party) is a Kurdish insurgent group that joined the anti-Assad uprising of 2011 and now controls parts of the north-east part of Syria, in a precarious coexistence with the Syrian government. Finally, the Kurdish Regional Government (KRG) has operated independently since 1991 and remain in a military standoff with the central Iraqi government. All three Kurdish groups operate courts at trial and appeal levels, for civil and criminal matters. The chapter considers the possible application of the principle of complementarity under the Rome Statute in relation to a prosecution before the courts of a non-state armed groups. Likewise, the right or duty of third states under international law to give recognition to the operation of insurgent courts is examined. More radically perhaps, there is a possibility that even the territorial state might in some cases give legal effect to rebel court decisions. Finally, the Kurdish courts offer examples in which one non-state armed group is confronted with the need to determine the validity of the decisions of courts of other armed insurgents.

DISPUTING TRANSACTIONS IN A RUSSIAN COURT IN THE FRAMEWORK OF FOREIGN BANKRUPTCY

2021 ◽  
Vol 21 (1) ◽  
pp. 197-218
Author(s):  
A.A. KOSTIN
Keyword(s):  
Real Estate ◽  
Russian Federation ◽  
Civil Code ◽  
Legal Capacity ◽  
Judicial Practice ◽  
The Arts ◽  
Bankruptcy Procedure ◽  
Separate Line ◽  
The Russian Federation ◽  
The Law

​ The article addresses the special features of avoidance transactions of a foreign insolvent debtor for alienation of property within Russian Federation. The author argues that the power of the foreign insolvency administrator to bring a claim to challenge the transaction stems from the Arts. 1195–1197 and 1202 of the Civil Code of the Russian Federation regarding the law applicable to the legal capacity of a person. On the separate line the article discusses the issue of law applicable to challenging of various categories of transactions of a foreign debtor. Based on the analysis of the doctrine and judicial practice, the author comes to the conclusion that transactions concluded by a foreign debtor after the introduction of a bankruptcy procedure may be challenged in a Russian court on the basis of the limitation of the legal capacity of a foreign person (Arts. 1195–1197 and 1202 of the Civil Code of the Russian Federation). At the same time, foreign bankruptcy legislation cannot be applied to avoidance of real estate transactions concluded before the introduction of bankruptcy procedure against a foreign debtor due to paragraph 2 of Art. 1213 of the Civil Code of the Russian Federation. The article is concluded with an analysis of the issue of jurisdiction of the claim for challenging the transaction of a foreign insolvent debtor.

scholarly journals Position Of The Deed Of Will Made By Notary In Dispute Between The Heirs (Case Study Of Religion Court Decision No. 0427/Pdt.G/2014/PA.bla)

Jurnal Akta ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 561
Author(s):  
Nurul Kusumawati ◽  
Akhmad Khisni
Keyword(s):  
Civil Code ◽  
Court Decision ◽  
The Will ◽  
The Right

An inheritor can make a deed of will before a Notary, so that in a dispute occur later on between the heirs, the deed of will can be used as a basis for deciding the dispute between parties. Notaries who have the authority to make a deed of will have the obligation to serve the community in making a deed of will in the form of an authentic deed as stipulated in Article 15 paragraph (1) of Law Number 2 year 2014 concerning Amendments to Law Number 30 on the Position of Notary, which reads " The Notary has the authority to make authentic deeds regarding all deeds, agreements, and stipulations required by legislation and/or desired by the interested parties to be stated in an authentic deed, to guarantee certainty of the date of making the deed, to store the deed, give grosse, copy and quote of deed. All of those matters can be done by the notary as long as the deed is not also assigned or excluded to other officials or other people determined by law". So it is expected that the will certificate in the form of an authentic deed made by a notary based on the will of the inheritor can provide a solution that can be used as a basis in deciding a case of dispute between heirs. Legally, the heirs have secured the right as an heir, in accordance with Article 874 of the Civil Code. Related to the dispute between the heirs caused by the will deed made by the Notary, the Court take responsibility to overcome the dispute, so that all parties can get legal certainty.Keywords: Testament Deed, Authority of Notary, Dispute of Heirs

scholarly journals Legal construction of the superficies until the modernization of the civil code of the Republic of Moldova and the background which lead to the amendment of the civil code

2021 ◽  
pp. 14-18
Author(s):  
Constanta Obada ◽  
Keyword(s):  
Real Estate ◽  
Civil Code ◽  
Practical Application ◽  
Republic Of Moldova ◽  
Local Literature ◽  
Legal Construction ◽  
The Republic ◽  
The Right ◽  
Over Time

The purpose of this paper is to highlight the issues related to the clarification of the essence and legal construction of the surface right/ superficies, as initially regulated by the Moldovan legislator (until 01.03.2019), due to the fact that in the local literature there were different opinions with reference to this subject, which, consequently, led to the equivocal interpretation of the norms of law in the same matter, and this interpretation, respectively, offered different solutions of practical application of the norms regarding the institution of superficies. Thus, in this paper was analyzed the evolution of the right of superficies over time and highlighted the premises that led to the change of several rules governing the institution of superficies, but also the concept of real estate, in general.

Excepția de neexecutare a contractului și dreptul de retenție

2020 ◽  
Vol 2020 (2020) ◽  
pp. 129-185
Author(s):  
Flavius Antoniu BAIAS ◽  
◽  
Valentin CÎLȚEA ◽  
Keyword(s):  
Detailed Analysis ◽  
Comparative Law ◽  
Civil Code ◽  
Application Domain ◽  
Legal Institutions ◽  
Breach Of Contract ◽  
Special Effects ◽  
Judicial Practice ◽  
Specific Performance ◽  
The Right

"This study contains a detailed analysis of the Defense of refusal to perform and the Right of retention in the current Civil Code, with reference to the practice of the courts of law and to comparative law issues. Therefore, following the update of the two legal institutions, the present study mirrors the defense of refusal to perform with the right of retention (i.e. legal frame, notion, legal ground, characteristics, application domain, exercise’s conditions, operation’s mechanism, effects and transitional law). Following the examinations of the above-mentioned issues, both legal institutions are compared in order to outline the differences between them. By doing so, the article aims to settle the edge between these two means of judicial defense and to put an end to long debated controversies in the literature and judicial practice. Key-words: Civil Code; favor contractus; the rule of specific performance; the plea of breach of the contract/defense of refusal to perform/right to withhold performance of reciprocal obligation; right of retention; defense; statement of defense; counterclaim; synallagmatic contract; the special effects of synallagmatic contract; remedies for breach of contract; imperfect guarantee"

The Paradoxes of the Law and Judicial Practice Involving the Lease of Land Plots

Legal Concept ◽  
2021 ◽  
pp. 184-188
Author(s):  
Pyotr Filippov ◽  
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Legal Analysis ◽  
Judicial Practice ◽  
Analysis And Synthesis ◽  
The Russian Federation ◽  
Local Budget ◽  
Legal Concepts ◽  
The Right ◽  
Ownership Of Land

Introduction: the paradox of the judicial practice on claims of the municipal authorities on forcing the conclusion of lease agreements of land plots with the owners of parking spaces in the underground parking lots (garages). The Tax Code of the Russian Federation (Article 15 of the Tax Code of the Russian Federation) establishes a fee for the use of land. The forms of payment for the use of land are land tax and rent. Article 15 of the Tax Code of the Russian Federation establishes that the land tax refers to local taxes and the payment for it goes to the local budget of the municipality in whose territory the tax was introduced. The right of ownership of land (real estate) is registered and is publicly available. The tax authorities immediately issue payment receipts and the owners pay the tax, so the payment for the use of land is observed. Nevertheless, the municipal authorities (the departments of municipal property of the DMI) require owners to conclude lease agreements, lease their property and pay a fee to the local budget. The courts satisfy such claims and create a paradox that does not meet the requirements of the Constitution of the Russian Federation (Article 36), the requirements of the Civil Code of the Russian Federation, which establishes that the landlord can only be the owner or a person authorized by law or the owner to lease the property (Article 608 of the Civil Code of the Russian Federation). It is paradoxical, but that’s the fact that the owner of his property becomes both a landlord and a tenant of his property. And the departments receive double payment for the use of land in the form of a local tax and in the form of rent. It is necessary to formulate the norms of the Tax Code of the Russian Federation and the Civil Code of the Russian Federation more clearly and expressly so that there is no possibility of a paradoxical interpretation of the procedure for their application. In addition, the courts recognize the owner as unreasonably enriched, since the registered ownership of the land plot is not considered a sufficient legal basis to use his property. The purpose of the study is the author’s attempts to show contradictions in the judicial practice on the application of the norms of the Constitution of the Russian Federation, the Tax Code of the Russian Federation, and the Civil Code of the Russian Federation. Methods: in the process of the research, the method of a systematic approach to the study of legal concepts, comparative legal analysis, and synthesis was used. Results: the author clearly shows the conflict of interests of the owners of land plots and the departments of municipal property. As a result of the study, it is shown that the wording of the norms of the Tax Code of the Russian Federation and the Civil Code of the Russian Federation allows them to be interpreted differently and, accordingly, applied differently. Conclusions: the author proposes the rules for the exact interpretation of the norms of law and changes in the judicial practice in such cases.

scholarly journals Derelikce nemovitosti a její právněhistorické kořeny

2021 ◽  
Vol 51 (2) ◽  
pp. 111-128
Author(s):  
Marek Novák
Keyword(s):  
Real Estate ◽  
Civil Code ◽  
State Ownership ◽  
Roman Law ◽  
Constitutional Court ◽  
The Real ◽  
The Real Estate ◽  
Original Owner ◽  
Property Registration ◽  
The Right

It follows from the case law of the Supreme and Constitutional Court that everyone has the right to leave immovable property if they do not illegally avoid liability for non-fulfilment of their own obligations. The legal institute of dereliction has its origins in Roman law, which emphasized the free will of the owner deciding to abandon property. The dereliction of real estate according to the Civil Code in effect takes place by the legal action itself, by which the owner expresses the will to abandon the thing. Declaratory nature of property registration in the real estate cadastre might follow the recodification work in the 1920s and 1930s, as it differs from the General civil code (ABGB) regulation. Moreover, the Civil Code is influenced by socialist legislation when it transfers abandoned real estate to state ownership automatically. Although this was originally considered a measure in favour of the society, it is likely to cause difficulties. In recent years, laconic provisions of the Civil Code have provoked a discussion on the requisites of the application for the registration of state ownership in the real estate cadastre. The cadastral offices and some courts initially considered that the application must be accompanied by a consent statement from the original owner and the state, which, however, contradicts the characteristic of dereliction as a unilateral act. The Supreme Court strongly opposed this practice and interpreted the nature of dereliction in its decisions in detail.

Sign in / Sign up

Export Citation Format

Share Document