scholarly journals Problems of uncertainty of force majeure circumstances abstract

2020 ◽  
pp. 134-139
Author(s):  
Patimat Nazhmutdinova
Keyword(s):  
Legal Regulation ◽  
Judicial Practice ◽  
Force Majeure ◽  
Coronavirus Infection ◽  
The Individual

The article deals with the problem of the phenomenon of uncertainty in determining and qualifying force majeure circumstances. The analysis of judicial practice on the interpretation of the certainty of force majeure circumstances, including in the context of the spread of a new coronavirus infection (COVID-19). Conclusions and suggestions are made to improve the individual legal regulation of force majeure circumstances.

scholarly journals Agreements to Eliminate Liability for Breach of a Contractual Obligation: Comparative Analysis of the Legal Regulation and Judicial Practice

Legal Concept ◽  
2021 ◽  
pp. 123-130
Author(s):  
Natalia Kagalnitskova ◽  
Olga Tolstova
Keyword(s):  
Legal Regulation ◽  
Scientific Methods ◽  
Freedom Of Contract ◽  
Contractual Obligation ◽  
Judicial Practice ◽  
Force Majeure ◽  
Legal Nature ◽  
General Scientific ◽  
Contractual Obligations ◽  
Weak Party

Introduction: modern legal science is faced with the task of developing the concept of an agreement on the elimination of contractual civil liability: determining its legal nature, scope and conditions for its implementation. For this purpose, the authors of the paper attempt to model the theoretical and legal basis of the agreement on the elimination of contractual liability of the debtor for non-performance, improper performance of its obligations. Using the general scientific methods – synthesis, analysis, comparative and dialectical methods, as well as the specific scientific methods of cognition, in particular, formal-legal, structural-functional and others, the authors determine the legal nature and scope of the agreement on the elimination of contractual liability for violation of a contractual obligation, and examine the practice of such application. Results: it is indicated that within the framework of the agreement on the elimination of contractual liability, it is possible to expand the list of circumstances related to “force majeure”, but taking into account the criterion of the latter: emergency and insurmountability. Conclusions: an agreement to eliminate contractual liability is not possible in contractual obligations involving a weak party, unless it is concluded in its favor. Therefore, the main scope of their application is the obligations related to the implementation of business activities. The possibility of concluding this agreement is a manifestation of the principles of autonomy of will and freedom of contract.

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 Legal Definition of Irresistible Force in the Civil Law of Russia and China

2021 ◽  
Vol 8 (3) ◽  
pp. 93-120
Author(s):  
S. Zimneva ◽  
T. Popova ◽  
H. Siao
Keyword(s):  
Civil Law ◽  
Theoretical Concept ◽  
Republic Of China ◽  
Legal Definition ◽  
Judicial Practice ◽  
Legal Literature ◽  
Force Majeure ◽  
Coronavirus Infection ◽  
Russian Law ◽  
Definition Of

The research focus is on concept of force majeure and irresistible force as a reason to release the parties from liability for failure to perform civil obligations. The authors examine theoretical concept and legal definition of “irresistible force” and its characteristics based on legislation, legal literature and judicial practice of the Russian Federation and the People’s Republic of China. Also, the authors analyze the civil law jurisdictions on irresistible force, relatively to its ambiguity and situation with the spread of the new coronavirus infection (COVID-19) and come to the conclusion that courts in each specific case should establish irresistible force circumstances. The work uses a linguistic (philological) method, in particular, the method of distributive analysis of the terms “irresistible force” and “force majeure.” The article shows that in modern Russian law the expression “irresistible force circumstances” has more efficient terminological potential. The authors propose implementation of “irresistible force circumstances” concept in the Russian Civil Code, which would more accurately reflect the essence of this concept.

scholarly journals Features of individual legal regulation of force majeure circumstances

2021 ◽  
pp. 192-197
Author(s):  
Patimat Nazhmutdinova
Keyword(s):  
Legal Regulation ◽  
Judicial Practice ◽  
Legal Science ◽  
Force Majeure ◽  
Characteristic Features

The article reveals the specifics of individual legal regulation of force majeure circumstances. The author analyzes the existing legal science classifications of the designated type of legal regulation, examines the features of each of them, provides examples from the current Russian legislation and materials of judicial practice. The characteristic features of individual legal regulation, under which force majeure circumstances fall, are formulated.

scholarly journals Coronavirus Pandemic 2019-nCoV (COVID-19) as Force Majeure

Lex Russica ◽  
2020 ◽  
pp. 124-133 ◽  
Author(s):  
Kh. V. Idrisov
Keyword(s):  
Public Relations ◽  
Russian Federation ◽  
Civil Law ◽  
Legal Regulation ◽  
World Health ◽  
Legal Analysis ◽  
Force Majeure ◽  
Coronavirus Infection ◽  
The Russian Federation ◽  
Health Organization

The paper is devoted to the legal analysis of the consequences of a new coronavirus infection, due to which the World Health Organization declared a pandemic. By its nature, this infectious phenomenon refers to a force majeure event. Within the framework of the scientific research, the author describes the concept of force majeure, as well as the features of emergency and unavoidability that make up this legal category. In addition, a number of regulatory legal acts regulating public relations in this area are subject to legal analysis, both adopted earlier and published literally from the very beginning of the spread of coronavirus infection throughout the territory of the Russian Federation. Along with the analysis of the regulatory legal acts, the paper also provides judicial practice on the issue under consideration. Based on the legal analysis of the issues under study, it is concluded that adequate legal regulation of the consequences of the coronavirus infection within the framework of relations between civil law subjects will guarantee the participants mutual bona fide behavior in accordance with the norms established by civil law, and in the case of unfair behavior — the implementation of civil liability measures for such subjects. In conclusion, it is noted that prompt and qualitative regulation of the consequences of the coronavirus infection is one of the key tasks in the legal field in the current situation, since contract law, which includes provisions on force majeure, plays an important role in the development and maintenance of stability of civil turnover, providing all its participants with legal guarantees for the implementation of the basic norms and rules established in the Civil Code of the Russian Federation concerning the conclusion and execution of contracts.

Institute of incapacity in contemporary Russian law

2019 ◽  
pp. 145-158
Author(s):  
Olga Viktorovna Belyanskaya
Keyword(s):  
Medical Knowledge ◽  
Legal Regulation ◽  
Roman Law ◽  
Ancient Rome ◽  
Judicial Practice ◽  
Diminished Capacity ◽  
The Social ◽  
Russian Law ◽  
Individual Capacity ◽  
The Individual

We analyze one of the most important legal properties of the individual - capacity, as well as conditions of recognition person as incapable. Institute of incapacity norms were formed in Roman law, and in contemporary legal systems they are an indicator of tolerance level towards various deviations in the social behavior of an individual. We give a brief analysis of the Roman law provisions on the factors and conditions for the capacity diminishment and the recognition of a person as incapable. In Ancient Rome, only free-born man had legal capacity and personal capacity, and the reason for capacity diminishment could be the state of health, disgrace, wastefulness. The basis of institute of incapacity legal regulation in Russian civil and criminal law is the basic provisions of Roman law, which have been transformed and reflect contemporary medical knowledge and ideas about the social status of citizens. Citizens with diminish capacity may be recognized on the basis of various circumstances; accordingly, there are different types of restrictions in the implementation of their rights. This is the basis for dividing the diminished capacity of a person into two types - full and partial. We analyze the conditions for partial diminish of capacity. We provide judgments of scientists on the need to introduce such grounds as video games addiction, gambling, and wastefulness. We assume that these circumstances should be taken into account upon making decisions on the capacity diminishment and develop the relevant judicial practice. We propose a new wording of paragraph 1 of part 1 of article 30 of the Civil Code of the Russian Federation.

ORGANIZATIONAL MEASURES FOR SPECIAL TRANSPORT PROCESSING USED FOR CONVICTS AND PERSONS IN CUSTODY ESCORTING INCLUDING PATIENTS WITH INFECTIOUS DISEASES

2020 ◽  
pp. 43-47
Author(s):  
Валерий Викторович Кубанов
Keyword(s):  
Infectious Diseases ◽  
Ultraviolet Radiation ◽  
Selection Criteria ◽  
Legal Regulation ◽  
Ultraviolet Disinfection ◽  
Physical Methods ◽  
Combined Use ◽  
Coronavirus Infection ◽  
Hygienic Conditions

В статье анализируются вопросы правового регулирования и организации мероприятий по обработке специального транспорта, используемого для конвоирования осужденных и лиц, содержащихся под стражей, в целях недопущения распространения заболеваний, вызванных новой коронавирусной инфекцией (COVID-19). Охарактеризована правовая регламентация санитарно-гигиенической и противоэпидемиологической деятельности в условиях учреждений, обеспечивающих изоляцию от общества. Показан комплекс проблем, связанных с обеспечением необходимых санитарно-гигиенических условий при перевозках осужденных и лиц, содержащихся под стражей. Исследован вопрос о критериях отбора дезинфицирующего средства, применяемого для обработки специального транспорта. Сформулированы дополнительные требования, предъявляемые к дезинфицирующим средствам, в современных условиях распространения новой коронавирусной инфекции (COVID-19). Сделан вывод о целесообразности сочетания химических и физических способов проведения дезинфекции. Предложено комбинированное использование химических аэрозольных методов и физических ультрафиолетовых дезинфекционных технологий, реализуемых посредством бактерицидных облучателей-рециркуляторов воздуха, предназначенных для обеззараживания воздуха ультрафиолетовым излучением в различных закрытых пространствах, включая салоны транспортных средств. Затронуты вопросы организации дезинфекционных пунктов в учреждениях уголовно-исполнительной системы Самарской области. The article analyzes the issues of legal regulation and organization of measures for processing special transport used for convicts and persons in custody escorting in order to prevent the spread of diseases caused by a new coronavirus infection (covid-19). The article describes the legal regulation of sanitary-hygienic and antiepidemiological activities in institutions that provide isolation from society. The complex of problems related to ensuring the necessary sanitary and hygienic conditions during transportation of convicts and persons in custody is shown. The question of the selection criteria for the disinfectant used for the treatment of special transport is investigated. Additional requirements for disinfectants are formulated in the current conditions of the spread of a new coronavirus infection (COVID-19). The conclusion is made about the expediency of combining chemical and physical methods of disinfection. The combined use of chemical aerosol methods and physical ultraviolet disinfection technologies implemented by means of bactericidal irradiators-air recirculators designed for disinfection of air with ultraviolet radiation in various enclosed spaces, including vehicle interiors, is proposed The issues of organization of disinfection points in institutions of the penitentiary system of the Samara region were discussed.

Foreign experience in constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law

2021 ◽  
Vol 28 (2) ◽  
pp. 55-65
Author(s):  
Oleksandr M. Bukhanevych ◽  
Serhii O. Kuznichenko ◽  
Anastasiia M. Mernyk
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Well Being ◽  
Legal Regulation ◽  
Martial Law ◽  
Foreign Experience ◽  
Foreign Countries ◽  
General Scientific ◽  
The Individual ◽  
Exhaustive List

The study investigates the foreign experience of constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law in Macedonia, Armenia, Belarus, Moldova, Georgia, Latvia, Lithuania, Albania, Azerbaijan, which is relevantin modern conditions, based on the presence of local military conflicts, emergencies, or the possibility of their existence in many countries of the world. The purpose of this study was to analyse the text and content of the constitutions of foreign countries to clarify and explain the groundsfor restricting human and civil rights and freedoms in conditions of emergency and martial law. To achieve this purpose, the study employed a system of methods of scientific cognition, namely general scientific (analysis, synthesis), particular (comparative, quantitative and qualitative analysis, approximation), as well as special legal (formal legal, comparative legal) methods. The practical value of the study lies in the identification of four prevailing trends in the constitutions of foreign states to the procedure for determining the scope of restrictions on human rights under special regimes: 1) consolidation of an exhaustive list of rights and freedoms in the constitutions, which cannot be restricted during the period of emergency and martial law; 2) consolidation of an exhaustive list of rights and freedoms in the constitution, which can be restricted to protect human rights, the democratic structure of the state, public safety, the well-being of the population and morals; 3) combining the first two options for consolidating restrictions in the text of the constitutions; 4) consolidation of the possibility of limiting the rights and freedoms of the individual in the texts of constitutions by state authorities under special legal regimes in the interests of national security without specifying partiular rights and freedoms that may (or may not) be restricted

Emergency powers of the authorities of the constituent units of the federation (states) in Russia, the USA and Brazil amid the spread of a new coronavirus infection

2021 ◽  
Vol 30 (3) ◽  
pp. 86-107
Author(s):  
Alexander Merkulenko
Keyword(s):  
Russian Federation ◽  
The United States ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Emergency Powers ◽  
Lack Of Control ◽  
The Usa ◽  
Coronavirus Infection ◽  
The Russian Federation ◽  
The Government

Due to the new coronavirus pandemic, high alert regimes were introduced across the Russian Federation in spring 2020. These emergency regimes were established exclusively by the state bodies of the Russian Federation’s constituent units – federal authorities did not introduce their own emergency regimes. This decentralized strategy of fighting the pandemic was also introduced by the USA and Brazil. Their states, without the sanction of the federal government, and in the case of Brazil, ignoring its bans, set emergency restrictions similar to those in Russia. The legal regulation of emergency regimes existed before 2020, when constituent units of the federation (states) actively used their emergency powers. However, the regimes introduced during the fight against the pandemic were slightly different to previous ones. The restrictions on rights and freedoms within these regimes were so severe that not only their proportionality was questioned, but there were also doubts as to whether the regional level of the government had the authority to establish such strict restrictions. In addition, the pandemic exposed old problems and revealed new shortcomings in the legal regulation of emergency regimes: lack of control over the realization of the emergency regime by legislative (representative) authorities, and gaps in legislative regulation – notably in the establishment of possible restrictions and of a mechanism for scrutinizing their proportionality. All this raised questions about the proportionality of the established restrictions. The Constitutional Court of the Russian Federation resolved a very insignificant amount of the problems. While the United States and Brazil faced similar issues, the practice of scrutinizing implemented restrictions in these countries was more common. This article takes domestic and foreign experiences into account, while examining certain aspects of the establishment and the operation of regional emergency regimes.

Current State of Legislation, Law Enforcement and Judicial Practice in the Sphere of Conclusion, Modification and Termination of Lease Agreements for Land Plots, Concluded for Construction Purposes

2020 ◽  
Vol 1 ◽  
pp. 16-23
Author(s):  
V. V. Cheremukhin ◽  
Keyword(s):  
Law Enforcement ◽  
System Analysis ◽  
Legal Regulation ◽  
Scientific Development ◽  
Synthesis System ◽  
Judicial Practice ◽  
Current State ◽  
General Scientific ◽  
Statistical Indicators

Construction, as a sphere of the national economy, has impressive statistical indicators, determining the importance and relevance of its proper legal regulation, especially in terms of land use for relevant purposes. This article discusses the current situation in the sphere of provision of land plots for construction purposes, further alteration and termination of the relevant lease relations; provides a detailed analysis of the current legislation, law enforcement and judicial practice in such sphere. The purpose of the article is to analyze and summarize legislation judicial and law enforcement practice in this area, as well as the development of specific directions for a comprehensive dissertation research, proposals for improving the legislation regulating these relations. This goal is achieved by solving tasks such as studying of the existing legal regulation of disputed legal relations, law enforcement and judicial practice, identification of problematic and conflict-of-laws issues in the field under consideration, review of the degree of scientific development of the research topic, determination of trends in the development of this sphere of legal relations, development of specific proposals for changing legislation and law enforcement practice. General scientific (synthesis, system analysis, analogy) and special (formal-legal, comparative-legal) methods are used to solve the above problems. Based on the results of consideration of these issues, the author formulates the main problems of the legal relations under consideration, an assessment of the current degree of scientific development of this field is given, the main directions of the planned scientific research are also outlined, proposals are formulated to improve legislation and law enforcement practice.

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