scholarly journals Child as a Participant in Obligatory Legal Relations

2021 ◽  
pp. 64-72
Author(s):  
Iryna SERDECHNA
Keyword(s):  
Property Rights ◽  
Characteristic Feature ◽  
Legal Status ◽  
Civil Law ◽  
Civil Code ◽  
Unborn Child ◽  
Legal Relationship ◽  
Contractual Obligations ◽  
The Right ◽  
A Minor

It is determined that, in accordance with the provisions of civil law, the obligation is a legal relationship in which one party (debtor) is obliged to perform a certain act in favour of the second party (creditor), that is, to perform an act determined by contract or law or to refrain from a certain action, and the creditor has the right to require the debtor to fulfil its duty. The presence of a certain number of persons participating in the obligation of the entities of the obligation (creditor and debtor) is a characteristic feature of the binding legal relationship. Scientific approaches and approaches outstanding in the normative legal acts on understanding the concept of «child» have been analyzed. It is proved that in the Civil Code of Ukraine the concept of «child» is used only in some articles (part 2 of article 25, part 1 of article 35, part 3 of article 72, part 2 of article 285, part 3 of article 295, part 1.4 of article 1200 part 1 of article 1242, etc.) at the same time this category is used regarding, that is, when determining the question regarding the legal status of a conceived and unborn child, regarding the personal non-property rights of individuals, regarding the issue of compensation for harm, hereditary legal relations, etc. It is justified that civil law does not identify the concept of «child» with a person before the age of 18. The peculiarities of the child’s participation in binding legal relations, in particular in contractual and non-contractual relations, were studied. The characteristics of the child’s participation in contractual binding legal relations are defined: 1. The child is subject to contractual obligations until he or she reaches the age of 14, as he or she has the right to engage in petty domestic transactions; 2. The child may be subject to contractual obligations at the age of 14, and the scope and capacity of the child is increased; 3. The child has the same rights as other subjects of binding legal relations. 4. Obligatory legal relations involving the child arise in relation to property and personal non-property benefits; 5. Legal facts are the basis for legal relations involving the child. The legislative approach is disclosed regarding the peculiarities of the participation of the child, namely a minor and juvenile person, in non-contractual obligations, in particular in obligations for compensation for harm.

scholarly journals Les droits du mineur en vertu de la Partie VI de la Loi régissant les sociétés commerciales canadiennes

2005 ◽  
Vol 21 (2) ◽  
pp. 399-425 ◽  
Author(s):  
Robert Demers
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Civil Code ◽  
The State ◽  
Point Of View ◽  
Federal Legislation ◽  
Private Law ◽  
Important Trend ◽  
Bona Fide ◽  
A Minor

Transfers of shares in the private law of the Province of Quebec raise numerous questions. The rights of the bona fide transferee for value are not clearly settled by the Civil Code and the provincial Companies Act is silent on the issue. In the first part of this article, the author deals with the state of the civil law on the question, illustrating the discussion with a study of the rights of a minor to proceed against bona fide transferees generally and more specifically, under articles 297 and 1487 C.C. In the second part of the article, the question is viewed from the point of view of the federal legislation. Part VI of the Canada Business Corporations Act is studied in detail in so far as the rights of the minor are modified by the statute. This useful exercise indicates clearly the preference given by the federal Act to bona fide purchasers of securities and the rather precarious position of the true owner in questions of conflicting claims. Viewed from a larger perspective, this study reveals an important trend in recent legislative enactments : where traditional rules tend to protect property rights (nemo dat...), contemporary legislations seem to favour unduly the security of commercial transactions.

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 Contractual Penalty and the Right to Payment for Delays Caused by Force Majeure in Czech Civil Law under the New Civil Code

2015 ◽  
Vol 6 (4) ◽  
pp. 259-269 ◽  
Author(s):  
Martin Janku
Keyword(s):  
Civil Law ◽  
Civil Code ◽  
Mutual Relationship ◽  
Force Majeure ◽  
Recommendations For Practice ◽  
Contracting Process ◽  
Contractual Obligations ◽  
The Right

Abstract In the context of the conclusion of contracts between entrepreneurs under the Czech Civil Code, it is a relatively common arrangement that the parties disclaim any and all liability for damage arising from non-compliance with contractual obligations, if they can prove that this failure was due to an obstacle independent of their will. This circumstance excluding liability for the damage is called force majeure by the theory. In many countries this circumstance is ruled upon directly by the legislation (höhere Gewalt, vis major). The Czech regulations represented by the new Civil Code of 2012 (CivC), however, contains only a framework provision that mentions discharging reasons. The paper deals with the – rather disputable – issue that the force majeure does not affect the obligation to pay a contractual penalty under the new rules of the CivC. It should be therefore reflected in the arrangements for contractual penalties inter partes. To this effect the paper analyses the concepts of contractual penalties and force majeure in civil law legislation. Afterwards it compares their mutual relationship and impact on the obligations of the Contracting Parties. Finally, it draws recommendations for practice from the perspective of the contracting process.

scholarly journals Personal non-property rights ensure a social existence of the Internet user as natural person

Legal Ukraine ◽  
2020 ◽  
pp. 58-67
Author(s):  
Anna Dolinska
Keyword(s):  
Property Rights ◽  
Legal Status ◽  
Civil Law ◽  
Internet User ◽  
The Internet ◽  
Social Existence ◽  
Natural Person ◽  
Internet Users ◽  
Internet Environment ◽  
The Right

The article is devoted to issues of personal non-property rights which ensure social existence of the Internet user as an natural person. It is emphasized that Internet user, as a participant in civil law relations related to protection and defense of personal non-property rights, is endowed with all powers that determine general legal status of a participant in similar law relations. The peculiarities of the Internet user’s exercise of certain personal non-property rights are highlighted, which are due to nature of Internet relations. They reflect specifics of human communication in the Internet environment. At the same time, threats that require formation of a separate mechanism to ensure the protection the personal non-property rights of Internet users are increasing proportionately. Thus, civil law doctrine should take into account need to supplement existing theory of personal non-property rights with new elements that affect the status of a natural person as a participant in civil law relations. The specifics of Internet user’s legal status in the context of his personal non-property rights when performing certain actions on the Internet is: in moment of occurrence the legal status of Internet user as a holder of personal non-property rights; in ensuring principle of equality of all Internet users, regardless of their status in the field of private or public law relations; in compliance with specific requirements for individualization of Internet user. It is determined that Internet user acts in the Internet environment through the complex of individualizing features which include: avatar, nickname, online style (image), text information (post), which accompanied by photos, videos, information that defines Internet user’s list of tastes, comments of Internet user are placed under posts of other users, digital signature on the Internet. Key words: Internet user, personal non-property rights, right to family, right to name, right to respect for honor and dignity; the right to inviolability of business reputation, the right to freedom, the right to individuality, the right to personal papers, the right to secrecy of correspondence, the right to inviolability of the home, the right to freedom of movement, the right to freedom of association.

Kajian Yuridis Pengesampingan Pasal 1266 dan Pasal 1267 Kitab Undang -Undang Hukum Perdata sebagai Syarat Batal dalam Perjanjian Kredit Perbankan

2017 ◽  
pp. 65-89
Author(s):  
Rocky Marciano Ambar ◽  
Budi Santoso ◽  
Hanif Nur Widhiyanti
Keyword(s):  
Research Method ◽  
Code Of Ethics ◽  
Civil Law ◽  
Banking System ◽  
Civil Code ◽  
Bank Credit ◽  
Dominant Position ◽  
Legal Implications ◽  
Credit Agreement ◽  
The Right

Banks in credit agreements use more standard agreements, standard contracts in 2 (two) things, (1) There is an unbalanced position between banks and debtors, banks that have a more dominant position and debtors. (2) There is an understanding of the principle of freedom of contracting and without limits. The Bank has the freedom to seek the form and content of the agreement. Code of Ethics in agreement. The provisions of the Civil Code provide types of compensation for parties. Based on the background, then for problems the problem is written (1). Does the inclusion of Article 1266 and Article 1267 of the Civil Code on the banking system have collected the principles of balance and justice. (2) What are the legal implications of the exclusion clause. The research method is normative juridical research. The result of this research is the neglect of civil law and the principle of compensation is the principle of balance. The basic principle according to Rawls is that it is unfair or more people. in the sense of "freedom of results", in other words. is the nature of the debtor in a bank credit agreement. For the legal implications of the clause that excludes Article 1266 and Article 1267 of the Civil Code concerning the right of the debtor to the debtor. Legal efforts in finding and resolving problems that cannot be made by a decision due to the imbalance of the parties in the agreement. For people who make changes, no party will be harmed.

REGULATION OF CIVIL LAW EMPLOYMENT OR EMPLOYMENT LAW?

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 229-237
Author(s):  
Łukasz Paroń
Keyword(s):  
Gradual Increase ◽  
Civil Law ◽  
Hourly Wage ◽  
Temporary Work ◽  
Freedom Of Contract ◽  
Legal Relationship ◽  
Asking Questions ◽  
The Right ◽  
Employment Rights ◽  
Public Holidays

Performance of work on a basis other than an employment relationship takes various forms. Predominantly, it takes place based on civil law relationships, which are characterised by the principle of freedom of contract, which results in the possibility of freely shaping the content of any such legal relationship. However, recent years are marked by a gradual increase in regulations of employment other than based on contracts of employment, i.e. based on civil law contracts. Introducing a minimum hourly wage, limiting employment in trade on Sundays and public holidays, providing temporary work under civil law contracts or the much earlier widespread granting of employment rights to contractors in the putting-out system and, above all, granting the right to safe and hygienic working conditions to everyone who performs work justifies asking questions about future developments.

scholarly journals Legal Status of Minor Testator’s Parents Deprived of Parental Authority in Intestate Succession. Some Remarks on the Solutions in Polish, Russian, and Italian Law

2021 ◽  
Vol 47 (4) ◽  
pp. 107-134
Author(s):  
Hanna Witczak
Keyword(s):  
Legal Status ◽  
Parental Authority ◽  
Legal Systems ◽  
Family Ties ◽  
Italian Law ◽  
Parental Obligations ◽  
Legal Situation ◽  
Polish Law ◽  
The Right ◽  
A Minor

The legal situation of minor testator’s parents in intestate succession poses a significant legal and social problem. In Polish law, parents who have been deprived of parental authority continue to enjoy their civil-law status; in other words, they maintain the right to inherit from their child under statute. Meanwhile, the reasons for which the court applied the strictest possible “sanction” in the form of deprivation of authority of parents who, in exercising their rights under parental authority, seriously violated the child’s interest or grossly neglected parental obligations, which is noticeable even to an ordinary bystander, seem to be sufficient “proof” that family ties, which are decisive for the statutory title to inherit, do not exist. If these ties are severed or seriously disrupted, the consequences should be seen in all areas of life. Simply put, persons who deliberately break apart the family should not enjoy the advantages that the law provides for testator’s closest relatives. In such a case, to consider the effect of deprivation of parental authority by “releasing” its holders from any obligation towards the child may not be considered a sufficient civil sanction, especially given that in the vast majority of cases, the reason for such deprivation is gross neglect of parental duties by one or both parents. The consequences of this type of negligence should also, if not primarily, consist in the deprivation of pecuniary benefits that the parents of a minor could enjoy after his or her death. The current legal solutions governing this area undoubtedly need to be revised. Such imperfect normative solutions adopted in Polish law prove the need to propose de lege ferenda recommendations. In this context, it is worthwhile to have a look at the normative solutions adopted in foreign legal systems and whether they can be grafted on Polish law. The reference to the Russian and Italian legal systems seems particularly recommendable due to the fact that their normative solutions directly allude to the institution of deprivation of parental authority in the context of admissibility of the title to inherit.

scholarly journals Juridical Review Of Nominee Agreement In Land Of Tenure Property Rights Under The Book Of Civil Law And Agraria

Jurnal Akta ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 441
Author(s):  
Indah Esti Cahyani ◽  
Aryani Witasari
Keyword(s):  
Property Rights ◽  
Legal System ◽  
Civil Law ◽  
Civil Code ◽  
Good Faith ◽  
Freedom Of Contract ◽  
Related Statement ◽  
The Subject ◽  
The Law ◽  
Legal Consequences

Nominee agreement is an agreement made between someone who by law can not be the subject of rights to certain lands (property rights), in this case that foreigners (WNA) and Indonesian Citizen (citizen), with the intention that the foreigners can master land de facto property rights, but legal-formal (de jure) land property rights are assigned to his Indonesian citizen. The purpose of this paper isto assess the position of the nominee agreement in Indonesia's legal system and the legal consequences arising in terms of the draft Civil Code and the Law on Agrarian. Agreement is an agreement unnamed nominee made based on the principle of freedom of contract and good faith of the parties. However, it should be noted that the law prohibits foreigners make agreements / related statement stock wealth / property (land) for and on behalf of others, sehingga the legal consequences of the agreement is the nominee of the agreement is not legally enforceable because the agreement was made on a false causa.Keywords: Nominee Agreement; Property Rights; Foreigners.

scholarly journals Hubungan Hukum Dokter dan Pasien Serta Tanggung Jawab Dokter Dalam Penyelenggaraan Pelayanan Kesehatan

2018 ◽  
Vol 6 (1) ◽  
pp. 163-182
Author(s):  
Yussy A. Mannas
Keyword(s):  
Therapeutic Relationship ◽  
Criminal Law ◽  
Civil Law ◽  
Civil Code ◽  
Legal Relationship ◽  
Medical Disputes ◽  
Legal Effect ◽  
Two Factors ◽  
The Relationship ◽  
Legal Consequences

Abstract:The emergence rights and obligations as a result of legal relationship between doctors and patients could potentially trigger a dispute between doctors and patients or medical disputes. In an effort to avoid or reduce medical disputes, it is necessary to understand the construction of the legal relationship between doctor and patient. From this legal relationship which will result legal actions and gave rise to legal consequences. In a legal effect, it can’t be separated is about who is responsible, as far as what responsibility can be given. It describes that relationship and the patient's physician if constructed, it can be divided based on two factors; transaction of therapeutic and act. In relation patient - physician based therapeutic, known as therapeutic relationship or transaction therapeutic, there is a binding between patients and physicians in the treatment of the disease or treatment. Engagements happens is inspanningsverbintennis and not resultaatsverbintennis, and must comply with the provisions of Article 1320 of the Civil Code. The relationship between doctor and patient is based on the Act - legislation occurred under Article 1354 of the Civil Code, which formulates zaakwaarneming. Legal relationship that occurs by two things above give rise to legal liability for doctors, the responsibility in the field of disciplinary law, criminal law, civil law and administrative law.Keywords: Doctor, Patient and Legal Relationship.Abstrak:Munculnya hak dan kewajiban sebagai akibat hubungan hukum antara dokter dan pasien berpotensi memicu terjadinya sengketa antara dokter dengan pasien atau sengketa medik. Dalam upaya menghindari atau mengurangi sengketa medik yang terjadi, maka perlu dipahami mengenai konstruksi hubungan hukum antara dokter dengan pasien. Dari hubungan hukum inilah yang akan melahirkan perbuatan hukum dan menimbulkan adanya akibat hukum. Dalam suatu akibat hukum, hal yang tidak dapat dipisahkan adalah mengenai siapa yang bertanggung jawab, sejauh apa tanggung jawab dapat diberikan. Dalam tulisan ini diuraikan bahwa hubungan dokter dan pasien ini jika dikonstruksikan maka dapat dibagi berdasarkan dua hal, yaitu transaksi terapeutik dan undang-undang. Pada hubungan pasien- dokter berdasarkan terapeutik, dikenal hubungan terapeutik atau transaksi terapeutik, yaitu terjadi suatu ikatan antara pasien dan dokter dalam hal pengobatan atau perawatan penyakitnya. Perikatan yang terjadi ialah inspanningsverbintennis dan bukan resultaatsverbintennis, dan harus memenuhi ketentuan Pasal 1320 KUHPerdata. Hubungan dokter dan pasien berdasarkan undang–undang terjadi berdasarkan Pasal 1354 KUHPerdata yang merumuskan tentang zaakwaarneming. Hubungan hukum yang terjadi oleh dua hal diatas menimbulkan tanggung jawab hukum bagi dokter, yaitu tanggung jawab dalam bidang hukum, hukum pidana, hukum perdata dan hukum administrasi.Kata Kunci: Dokter, Pasien dan Hubungan Hukum. 

Intersectional relations between executive law and civil law of Ukraine

2021 ◽  
pp. 169-175
Author(s):  
N. Sergiienko
Keyword(s):  
Legal Status ◽  
Mutual Influence ◽  
Civil Law ◽  
Scientific Research ◽  
Civil Code ◽  
Scientific Article ◽  
Executive Process ◽  
The Subject ◽  
Definition Of

The scientific article is devoted to analyze the intersectional relations between executive law of Ukraine and civil law of Ukraine. The classification of forms of intersectional relations, offered by M.Yu Chelyshev, was taken as the ground of theoretical and methodological base of scientific research the intersectional relations between executive law of Ukraine and civil law of Ukraine. Even though this scientist-lawyer researched the intersectional relations of civil law, grounding on the subject of his scientific researches, his classification is stated as universal and grounded enough and can be used for different legal researches. In the scientific article the intersectional relations between executive law of and civil law of Ukraine are discovered though direction as follows: 1) intersectional interaction between executive law of Ukraine and civil law of Ukraine (it represents by using in executive law definitions and constructions of civil law. As an example of definitions and constructions of civil law, that are used in executive law, can be stated the definition of agreement); 2) intersectional influence between executive law and civil law (it represents by mutual influence of compositions of executive law and civil law, especially norms and institutions. The bright example of that mutual influence is the legal status of some kinds of property on the context of forfeiture the property – some kinds of property are out of forfeiture in the executive process, despite that property are out of turnover restrictions); 4) intersectional legal and collision regulation (it represents by direct and indirect mutual renvois between civil legislation and executive legislation. As an example can be used the direct renvoi to art. 28 of The Civil Code of Ukraine from subpar. 5 par. 2 sec. III of The Instruction of Compulsory Execution Organization, approved by The Ministry of Justice of Ukraine from 02.04.2012 under № 512/5).

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