scholarly journals Problems of legal regulation of delay interest as a type of civil liability for breach of monetary obligations in Ukraine

2020 ◽  
pp. 296-300
Author(s):  
Yaryna Fomenko
Keyword(s):  
Law Enforcement ◽  
Theoretical Study ◽  
National Level ◽  
Civil Liability ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Provisions ◽  
Legal Nature ◽  
Definition Of ◽  
Legal Concepts

This article is devoted to the theoretical study of the legal regulation of delay interest as a type of civil liability for breach of mo -ne tary obligations under Ukrainian law. It is the contractual sanctions, that are one of the most important parts of the contract as theyinduce the parties to comply with their obligations. In addition, sanctions are of a dual legal nature – they are both means of ensuringthe performance of the obligations and a measure of liability for a dishonest contractor. Liability for breach of monetary obligations ischaracterized by conflicting legal provisions and ambiguous court practice. For example, under the Civil Code of Ukraine delay interestand a penalty are regarded as types of forfeit, while in the Economic Code of Ukraine forfeit is treated as a separate type of sanction.However, in the absence of separate definitions of each sanction in the Economic Code of Ukraine, it is unclear as to the meaningintended by the legislator in particular in the concept of “forfeit”. This situation complicates the understanding of legal concepts andrequires a regulatory specification of such provisions in legislative acts. Based on the theoretical analysis, it is necessary to develop scientificallygrounded proposals and recommendations for improvement of law making and law enforcement activities. The legal characteristicsand peculiarities of the delay interest as a type of civil liability are investigated in the article.As a result of a comparative analysis of the regulations in the Civil Code of Ukraine and the Economic Code of Ukraine, the followingdifferences and contradictions were summarized and noted: a) different approach to the definition of “delay interest”; b) unequalapproach to the question of types of obligations to which delay interest can be applied; c) differences in the calculating of delay interestfor breach of a monetary obligation procedures.In order to effectively resolve disputes, the author notes the need to implement unification of the Civil Code of Ukraine with theEconomic Code of Ukraine at the national level and to establish clear rules for the application of delay interest for non-compliance withmonetary obligations.

scholarly journals PECULIARITIES OF A PERSON'S CIVIL LIABILITY IN CASE OF EXERCISING THE RIGHT TO SELF-DEFENSE AND IN EXTREME NECESSITY

2021 ◽  
pp. 21-26
Author(s):  
I. Dzera
Keyword(s):  
Civil Law ◽  
Civil Liability ◽  
Legal Regulation ◽  
Civil Code ◽  
Self Defense ◽  
Legal Nature ◽  
Compensation For Damage ◽  
Contractual Obligations ◽  
The Right ◽  
Commission Agent

Civil law provides both general rules that provide the grounds and procedure for liability for damage to a person, and special grounds for bringing or release from such liability in the event that the person causing such damage carried them out in self-defense or extreme necessity. Therefore, it is important to clarify the specifics of civil liability of a person in the exercise of his right to self-defense and in a state of extreme necessity. The grounds and procedure for bringing a person to such responsibility are determined, the peculiarities of the subject composition are determined. A thorough study of the Civil Code of Ukraine to determine their compliance with the general principles of civil law and the need for appropriate changes and clarifications for proper legal regulation of grounds for liability and release from liability for damage caused by a person exercising his right to self-defense and in a state of extreme necessity . The development of civil legislation of Ukraine in terms of compensation for damage caused by a person in the exercise of his right to self-defense, in conditions of extreme necessity and necessary defense in order to identify gaps and contradictions and formulate proposals for recoding the Civil Code of Ukraine. The purpose of the study is to define the concept of self-defense and extreme necessity, as well as to determine the grounds and conditions of civil liability for damage caused by a person exercising his right to self-defense or in extreme necessity, as well as sanctions applied to a person. The object of the study is the legal relationship arising from the prosecution of a person who caused harm in a state of extreme necessity or in the exercise of his right to self-defense and the application of civil sanctions. To achieve this goal, the following methods were used: formal-legal to study the legal regulation of legal relations; analytical for the correct interpretation of the scope of legal content; system-structural to determine the legal nature of the studied legal relations; historical and legal for the analysis of the development of civil legislation; dialectical to identify contradictions in legal relations and legal regulation. It is noted that in determining the content of self-defense committed by a person, it is necessary to take into account the legal nature of legal relations, as the performance of self-defense actions of a legal nature are mainly contractual obligations, and self-defense actual actions – noncontractual obligations, including tort obligations. The prevailing position in civil science is that self-defense is a way of protecting civil rights and a non-jurisdictional form of realization of this protection. It is noted that self-defense can be carried out in the form of both factual and legal actions, which can be both legal and illegal. Manifestations of self-defense are measures of operational influence, which in science are called operational sanctions. They are designed to prevent specific offenses, usually in contractual obligations and can be applied by a unilaterally authorized person out of court. Varieties of such sanctions are unilateral withdrawal from the contract; unilateral termination of the obligation; actions of the commission agent, aimed at unilateral retention of the thing to be transferred to the principal, in order to ensure their claims under the contract; actions of the commission agent aimed at unilateral deduction of the amounts due to him under the contract, received by him for the principal. Illegal active and passive actions of self-defense can lead to harm to the life, health of the offender, his property, which can lead to prosecution of the person for the damage. The analysis of the norm of Art. 1169 of the CCU, which regulates liability for damage caused by a person in the exercise of his right to self-defense. It is noted that the norm of Part 2 of Art. 1169 of the Civil Code is formulated unsuccessfully, because it does not contain information about "another person" who was harmed by a person who carried out self-defense against unlawful encroachments, and therefore it is not clear who may be obliged to compensate him. In this regard, it is proposed to make appropriate changes to the norm under study in terms of clarifying the person who may be obliged to compensate, introducing the term "causer" of the damage along with the term in the article "person who committed an illegal act". As a general rule, damage caused by a person in cases of exercising his right to self-defense is reimbursed only if the limits of necessary defense are exceeded. In this case, the right to apply a sanction for damages has a person whose actions have become the basis for the application of self-defense. Damage caused to third parties in ways not prohibited by law and which do not contradict the moral principles of society, is compensated by the person who committed the illegal act, and in other cases – by the person who carried out self-defense. That is, in the first case, the third party has the right to apply sanctions for recovery. Keywords: sanctions, liability, protection, compensation for damage, tort, operational measures.

scholarly journals Legal nature, role, meaning and grounds of Constitutional Court interpretation and doctrinal interpretation: their interconnection

2020 ◽  
pp. 33-38
Author(s):  
Valerya Antoshkina
Keyword(s):  
National Level ◽  
Legal Consciousness ◽  
Constitutional Court ◽  
Historical Aspect ◽  
Legal Norms ◽  
Legal Provisions ◽  
Legal Nature ◽  
The Subject ◽  
Definition Of ◽  
The Right

That article studies the questions on the legal nature, significance and grounds of the Constitutional Court of Ukraine (hereinafter - CCU) and of doctrinal interpretation as well as their interconnection. The author analyzes the types of interpretation by the subject and notes that among the subjects of the official interpretation the Constitutional Court plays an important role, while for the informal interpretation the doctrinal interpretation is crucial. The paper defines the legal basis for exercising of the right of interpretation by the Constitutional Court of Ukraine, as a specific body, which is the latter at national level aimed at exercising exclusive special powers in protecting the rights and fundamental freedoms of human and citizen. It is stated that the CCU is a quasi-legislative body whose acts are binding and have the features of a source of law, the paradigm of its activity is determined, first of all, by the rule of law and then by the supremacy of the Constitution of Ukraine. The article also pays attention to the ratio between the legal positions and decisions of the CCU. The article analyzes the changes of the legislation on the activity of the CCU in the context of reducing the power to interpret laws, limiting it only to the right to interpret the Constitution of Ukraine. The author also emphasizes that as the subject of court interpretation may act a scientist who interprets a certain norm of law and works as a judge of the CCU. In this case, the interpretation is based on the results of a scientific research for a judge. Therefore, it is reasonable to say that judges of the Constitutional Court of Ukraine can to some extent be considered as “subjects of doctrinal interpretation”, especially taking into account the fact that these days there are many legal scientists, scientists with academic degrees and titles working at the posts of judges and performing scientific and judicial activity at the same time. The author also studies certain aspects of the doctrinal interpretation and the definition of its role and significance in the historical aspect on the example of different states. Questions on the ratio between doctrinal and court interpretation are also paid attention by the author. It is noted that, in general, in Ukraine scientific doctrine is not recognized as an official source of law, but at the same time plays an important role in the formation of legal consciousness, worldview and lawmaking. Therefore, it can be noted basing on the results of the analysis of legal norms and court practice, that many doctrinal legal positions over time are reflected both in the rulemaking process and in court decisions, turning into court legal provisions.

scholarly journals LAWMAKING ISSUES IN THE REGULATION OF FINANCIAL RELATIONS

2018 ◽  
Vol 4 (4) ◽  
pp. 351-355
Author(s):  
Nataliia Uvarova ◽  
Oleg Mikhalskyi ◽  
Igor Bohdaniuk
Keyword(s):  
Legal Regulation ◽  
Tax System ◽  
Tax Legislation ◽  
Legal Method ◽  
Legal Provisions ◽  
Domestic Legislation ◽  
Legal Foundations ◽  
The Subject ◽  
Definition Of ◽  
Legal Concepts

The aim of the article. The problematic issues of financial legislation are revealed, as well as the adoption of financial and legal provisions as one of the stages of financial legal regulation is considered. The subject of the study is lawmaking issues in the regulation of financial relations. Methodology. The study is based on an analysis of legal provisions regarding the legal regulation of financial relations in Ukraine. The comparative legal method enabled to study certain provisions of the legislation of Ukraine on financial relations, followed by the application of positive foreign experience in this sphere. The results of the study revealed the need for a detailed study of the problem. The most significant element for the existence and development of tax relations is considered. The author’s approach to improving the tax legislation of Ukraine is exposed. Practical implications. Theoretical and legal foundations of financial relations in the economic and legal sphere are considered. A comparative legal study of legal provisions that affect the lawmaking issues in the regulation of financial relations and on this basis the definition of ways to improve the domestic legislation in this area. Relevance/originality. The analysis of financial relations raises the issue of codification and harmonization of tax legislation that mediate the development of the tax system since the efficiency of the tax system of Ukraine, the Russian Federation, and other countries depends on the uniformity of legal concepts used in the legal regulation of financial, banking, budgetary, tax activities.

scholarly journals Legal status of cryptocurrency in Asian countries

2021 ◽  
Vol 66 ◽  
pp. 96-102
Author(s):  
V.M. Logoida
Keyword(s):  
Civil Rights ◽  
Government Regulation ◽  
Legal Status ◽  
Legal Regulation ◽  
Intangible Asset ◽  
Asian Countries ◽  
Legal Nature ◽  
Liberal Approach ◽  
Definition Of ◽  
Almost All

The article is devoted to the study of the experience of legal regulation of the legal status of cryptocurrencies and transactions with them in Asian countries (except for the People's Republic of China and Asian countries - members of the Commonwealth of Independent States, as the author examined them in separate publications). In the article the author, based on the study of regulations, administrative and judicial practice of all major countries in this part of the world, emphasizes the divergent trends in cryptocurrency transactions regulation in the region, when some countries move from a liberal approach to the use of cryptocurrencies to their total ban and vice versa. It is noted that almost all countries in the region give a legal assessment of the payment function of cryptocurrencies, using regulatory or prohibitive approaches, depending on the chosen policy, which indirectly confirms their understanding of the legal nature of cryptocurrencies primarily as a means of payment. At the same time, these countries not only categorically distinguish cryptocurrencies from fiat money issued by central banks, but also mostly avoid the official definition of cryptocurrency as private (decentralized) cash, preferring to qualify them as an intangible asset, virtual asset, digital asset, financial value and even a good or service, which is currently a kind of compromise between political expediency and economic realities. The author also notes that the Asian region is characterized by very active attempts to resolve the legal status of cryptocurrencies at the legislative level, and not just administrative or judicial response to the actual legal relationship, although the progress of different countries in this matter is different. As a result, the author concludes that in the Asian countries considered in the article, there is no same view on the legal nature of cryptocurrency, its qualification as an object of civil rights, and ways to regulate transactions with it (libertarian approach, positive-cryptocurrency approach but with detailed government regulation and control or a completely restrictive policy in relation to the cryptocurrency market).

scholarly journals Problems of defining legal concepts in laws and other normative legal acts

Legal Ukraine ◽  
2020 ◽  
pp. 30-41
Author(s):  
Volodymyr Klochkov
Keyword(s):  
The State ◽  
Legal Concept ◽  
Legal Norms ◽  
Legal Nature ◽  
State And Society ◽  
Word Representation ◽  
The Law ◽  
Definition Of ◽  
Legal Concepts ◽  
Laws And Regulations

Each legal concept has not only content (content), but also a form. The form requires compliance with the rules for the definition and construction of concepts. Improving legal terminology is impossible without deep development and observance of the rules of analysis and the precise construction of the conceptual apparatus. Gaps in legislation and regulations are derived from inaccuracy, lack of clarity and simplicity of conceptual constructions. The inconsistency of certain legal norms found in various laws and regulatory legal acts, the inconsistency of norms with the prevailing realities of legal life in the state and society impede the fulfillment by state authorities, including law enforcement, of their functional responsibilities. Mistakes made in the preparation of draft laws and regulations, methodological recommendations mainly boil down to the violation of the requirements of the unified laws of logic: the law of identity, the law of contradiction, the law of the excluded third and the law of sufficient reason. The use of inappropriate terminology causes complications in the application of legal norms. The Constitution of Ukraine assigns to the prosecutor the function of representing the interests of a citizen or state in court in cases specified by law. The term representation is not exactly chosen. The word "representation" means: the performance of the duties of a representative; an institution representing the interests of someone; elections, as well as the law, the procedure for the election of representatives to any bodies; representation is a legal relationship in which one party (representative) is obligated or entitled to make a transaction on behalf of the other party that it represents; representation means activity on behalf of someone, on behalf of a person. By its legal nature, a representative can only be authorized for transactions that the person he represents is entitled to carry out. The representation of the prosecutor's office in court is specific, since this body does not need instructions, contracts or other documents. The prosecutor or his deputy should act not on behalf of someone, but on behalf of the state in favor of the person and citizen, state or society, within the limits established by law. In the legislation there is a conflict (conflict) in the law regarding the term «representation». To eliminate such a conflict, it is necessary to amend the Law of Ukraine «On the Prosecutor's Office». Key words: definition of concepts, laws and regulations, accuracy, clarity, brevity of terms.

scholarly journals Protection against imposing unfavorable contract terms by the dominant party in the russian legislation: issues of ensuring the balance of convenience

2020 ◽  
Vol 16 (1) ◽  
Author(s):  
Kirill Andreevich Pisenko ◽  
Stanislav Lvovich Botvinnik
Keyword(s):  
Legal Regulation ◽  
Philosophical Perspective ◽  
Public And Private ◽  
Scientific Methods ◽  
Dominant Party ◽  
Legal Method ◽  
General Logic ◽  
Legal Nature ◽  
Definition Of ◽  
Antitrust Regulation

Legal issues of counteracting the imposition of unfavorable contract terms by the dominant party raise a number of theoretical and practical problems. The authors of the article try to determine the legal nature of imposition and develop methods of comprehensive counteraction to this violation in order to ensure the balance of convenience. From the philosophical perspective and a certain worldview, the study is based on the balance of convenience regarded as the objective foundation of legal regulation. The main philosophical and scientific methods used in this article include the dialectic method, the formal-legal method, the method of legal hermeneutics, as well as the comparative-legal and empirical methods. The theoretical basis is represented by scientific works in the field of civil, administrative, entrepreneurial and procedural branches of law. The legal nature of imposition as a type of violation should be determined with due regard to the general logic of antitrust regulation. The parallel use of both public and private law necessitates the development of procedural legal means ensuring uniform law enforcement and the balance of convenience. First of all, the unity of approaches regarding legal tools of public and civil law should be concerned with the definition of features and the essence of elements compiling the imposition itself. The authors also propose approaches to the formation of an appropriate procedural model.

Overcoming of Corruptogenic Factors of Criminal Legislation: Concept and Main Methods

10.12737/5503 ◽  
2014 ◽  
Vol 2 (9) ◽  
pp. 68-75
Author(s):  
Сергей Иванов ◽  
Sergey Ivanov
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Law Enforcement ◽  
Criminal Law ◽  
Positive Role ◽  
Legal Nature ◽  
Rational Explanation ◽  
Definition Of ◽  
Criminal Matters ◽  
Criminal Legislation

This article deals with the definition of overcoming the corruptogenic factors of the criminal law; notes its positive role in combating corruption in the criminal justice and highlights the main features: universality, casuistry, functional character, law-enforcement level of the implementation. This article discusses some of the most important ways of overcoming the corruptogenic factors of the criminal law: the uniformity of practical activity (the same understanding and application of the criminal law to all situations with a similar set of actual data and identical criminal-legal nature); motivation (rational explanation subject to enforcement activities of the reasons and circumstances underlying the decision on this or other legal and penal question) and formalization of the decision-making (development and implementation of the criminal law or court practice on certain criteria that must underlie the adoption of any authority of any decisions in criminal matters and to narrow the scope of his discretion); raising the level of legal awareness of subjects of criminal-law relationships.

Receivables Financing in Lithuania: Is the Legal Regulation Suited to Accommodate the Practical Needs of Industry?

2009 ◽  
Vol 34 (3) ◽  
pp. 255-285
Author(s):  
Lina Aleknaitė
Keyword(s):  
Legal Regulation ◽  
Civil Code ◽  
Viable Alternative ◽  
Practical Application ◽  
Legal Provisions ◽  
Security Interest ◽  
Present Structure ◽  
Further Development

AbstractThis article examines the provisions of the 2000 Lithuanian Civil Code regarding the use of receivables for the purpose of raising finance. It starts by discussing the mechanism that the Code provides for the transfer of receivables—i.e., cession. Also, limitations on cession without debtor approval and the extent of rights that can be ceded are noted. The author then turns to the two main techniques of using receivables for financing. First, she examines the legal provisions on factoring and their practical application, as well as the structure of the industry. She presents some observations on the present structure of the industry, which precludes smaller companies from entering the market. Thereafter, she focuses on the possibilities under the Code of creating a security interest in receivables. Here, she reveals that the mechanism, although it does exist, is not a viable alternative to factoring, as it imposes additional burdens upon economic actors. Finally, the author presents her suggestions to the Lithuanian legislator, specifying the amendments that she believes should be made to the Code in order to encourage wider use of receivables financing in different ways (both by selling and by creating a security interest in receivables), as well as the further development of the industry.

scholarly journals PRACTICAL AND LEGAL FEATURES OF USE LAW ENFORCEMENT OFFICERS PHYSICAL FORCE

2021 ◽  
Vol 23 (80) ◽  
pp. 23-28
Author(s):  
V.A. Kaznazcheev ◽  
Keyword(s):  
Law Enforcement ◽  
Law Enforcement Officers ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Power Structures ◽  
Physical Force ◽  
Law Enforcement Agencies ◽  
Legal Nature ◽  
Wide Scale ◽  
Principle Of Legality

The presented research is devoted to the practical and legal features of the use of physical force by employees of law enforcement agencies. The work contains a legal analysis of these issues. The article examines the legal nature of this special coercion measure and outlines the legal significance of observing the principle of legality in its application. The scientific study provides examples of domestic and foreign practices concerning the consequences of violation of the requirements of the law by officials. The paper analyzes the statistical information on the state of crime for the first half of 2020 presented on the official portal of the Judicial Department at the Supreme Court of the Russian Federation, and notes that issues related to abuse of authority by employees of power structures are of particular public and legal interest. Practice shows that the abuse of power by law enforcement officers in the use of physical force can lead to the emergence of public protests, reaching a wide scale. This fact necessitates a thorough study of the issues that arise in the course of the use of physical force by powerful subjects. The author outlines his own position on this topic, outlines the problems of legal regulation of the considered area of legal relations and suggests possible ways to resolve them.

scholarly journals RUSSIAN LAW OF OBLIGATIONS REFORMED: THE CONSEQUENCES FOR THE INSTITUTE OF DAMAGES (LOSSES)

2021 ◽  
pp. 689-698
Author(s):  
Y. E. Monastyrsky ◽  
Keyword(s):  
Russian Federation ◽  
System Analysis ◽  
Civil Law ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Civil Code ◽  
Legal Provisions ◽  
The Russian Federation ◽  
Russian Law ◽  
Practice Methods

Introduction: of all the instruments of protection of subjective property rights, the fundamental role belongs to the institute of indemnification, whose regulatory framework needs to be clarified. The purpose of this paper is comparative description of the important legal aspects of the main type of property liability. In accordance with the purpose, the following objectives were set: to determine the extent to which legal provisions of general regulations on obligations laid down in the Civil Code of the Russian Federation should or can be applied to claims for damages; to formulate the proposals for improving the indemnification court practice. Methods: the methodological framework of the study consists of specific scholarly (special legal, comparative legal) and general scholarly (problem-theory, teleological, and system) methods of analysis. The main trends in the development of the institute of liability and the debatable aspects reflected in the Russian and foreign documents were studied with the use of the problem-theory and system analysis methods. Results: being a summary overview of the available knowledge and comparative regulatory material, this paper allowed us to articulate the ideas aimed at improving the fundamental principles of legal regulation of relations in the sphere of protection of subjective rights, in particular indemnification. Discussion: indemnification is a developing major institute of civil law, invariably attracting the attention of scholars around the world. Lately it has taken on special significance and some of its aspects have become a focus of a separate field of scholarly discussion. Many Russian scholars have written about indemnification in a comparative aspect: О. N. Sadikov, V. V. Baibak and others [2, 15]; this paper focuses on the reform of Russian law of obligations and the new provisions of the Civil Code of the Russian Federation of March 8, 2015 and reveals the consequences of the reform for the institute of damages, discussing this topic in detail as a separate standalone issue. Conclusion: we hope that this paper will contribute to further discussion in the civil law doctrine of the ideas and conclusions presented.

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