Renewal of the Land Lease Agreement: Problems of Theory and Judicial Practice

2020 ◽  
Vol 27 (3) ◽  
pp. 48-62
Author(s):  
Vitalii Urkevych
Keyword(s):  
Legal Regulation ◽  
Practical Significance ◽  
Structural Method ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
Important Object ◽  
And Performance ◽  
Lease Agreement

Land is the most important object of the environment. It is an indispensable means of production in agriculture, the territorial basis for the location of various objects. It is argued that the proper functioning of land lease relations is a guarantee of sustainable economic circulation, a guarantee of the exercise of rights and performance of duties by both the lessor and the lessee of the land. The issue of renewal of the land lease agreement after its expiration is debatable. The purpose of the study is to outline the existing theoretical and law enforcement problems regarding the renewal of the land lease agreement, to make proposals to eliminate the latter. To achieve this purpose, a system-structural method of scientific knowledge was used, which helped analyse the prescriptions of the legislation on renewal of the land lease agreement, their relations and interaction were highlighted. The study proves that the lessee's pre-emptive right exists to renew the land lease agreement only for the same period and on the same terms and in the absence of objections to such renewal by the lessor. If the lessee tries to change the essential terms of the land lease agreement and in the absence of the lessor's consent to such changes, the lessee's pre-emptive right to enter into a land lease agreement for a new term is terminated. It is emphasised that in each dispute it is necessary to establish the good faith of the lessor’s actions to refuse to renew the land lease agreement with one person (lessee) and the subsequent conclusion of the agreement with the new lessee. The use of the category of "less protected" party in land lease legal relations appears debatable, because depending on the subject composition of the parties to these legal relations, such a party can be both a lessee and a lessor. It is concluded that the Supreme Court should unify the practice of applying the provisions of the law on the renewal of the land lease agreement (only in combination with other regulations or autonomously, with the use of the principle of "tacit consent"). The possibility of autonomous application of such instructions is indicated by the provisions of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Counteraction to Raiding”. The revealed shortcomings of the legal regulation of the renewal of the land lease agreement after its expiration indicate the directions of improvement of the legislation in land lease, which has practical significance

scholarly journals The dispute about law in urgent administrative cases at the appeal of the bodies of revenue and fees

2019 ◽  
pp. 85-90
Author(s):  
O.V Skochylias-Pavliv ◽  
N.V. Lesko
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Legal Definition ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
Definition Of ◽  
Judicial Procedure ◽  
Administrative Proceedings

The article deals with current issues related to the procedure of consideration and resolution of urgent administrative cases at the appeal of the bodies of revenue and fees. The peculiarities of the specified category of cases which are manifested in the urgency; subject composition; notification of the participants of the case on the date, time and place of the case; filing of the claim; calculation of procedural terms; announcement and service of court decisions; appeal and cassation appeal; the court fee are analyzed. It is noted that the statements of the case are a statement of claim, reaction a statement of claim, a response to a reaction, a protest, a third party’s explanation of the statement claim, or reaction a statement of claim. The form of the appeal of tax authorities to the administrative court is a claim. Obviously, that is why in these categories of cases there are often misunderstandings regarding the payment of court fees as evidenced by a large number of decisions on leaving without motion the claim of bodies of revenue and fees on the ground of failure to submit to the court a document on payment of court fees. Central to the article is the consideration of the issue of understanding of the dispute about law as one of the grounds for refusing to open proceedings at the appeal of the bodies of revenue and fees. The only form of administrative proceedings is the consideration of the case on the statement of claim. As is well known, a lawsuit involves conflict between the parties. The mutual rights and obligations of the parties to prove their claims and objections constitute the substance of the dispute. However, the peculiarities of disputes at the request of the bodies of revenue and fees due to the fact that they don’t have a dispute about the law. It is noted that there is no legal definition of the term «dispute about the law», which significantly complicates the consideration and resolution of this category of cases. The interpretation of this concept exists only in judicial practice, in particular in resolutions of the Supreme Court but they are also contradictory. That’s why we consider it necessary to supplement article 283 Code of Administrative Proceedings of Ukraine a note defining the concept of «dispute about the law», which should be understood as a claim of the taxpayer to the tax authority regardless of the subject of the claim which may be submitted to administrative or judicial procedure. Keywords: a dispute about law, administrative proceedings, administrative case, revenue, and fees, claim.

INVALIDITY OF DECISIONS OF GENERAL MEETINGS OF SOCIETIES: ANALYSIS OF JUDICIAL PRACTICE

2017 ◽  
Author(s):  
Oleg Pecheniy ◽  
◽  
Oksana Vartovnik ◽  
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
General Meeting ◽  
Case Law ◽  
Legal Regulation ◽  
Practical Application ◽  
Corporate Rights ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject

The article examines the activities of companies, their bodies, disputes, delves in connection with the exercise of corporate rights, holding a general meeting, making decisions, appealing to the courts, as well as compliance with rules relevant to the founders and participants of companies. Disputed situations on observance of the procedure of convening and holding a general meeting, their influence on decision-making, their legitimacy are studied. Violated corporate rights of the participant are protected by invalidating the decision of the general meeting as the highest body of society. The article identifies the problematic aspects of disputes over the invalidation of decisions of the general meeting of companies. Some grounds for invalidating the decisions of the general meeting of companies are analyzed, the shortcomings of their legislative regulation and the peculiarities of practical application by economic courts of various instances, especially the court of cassation, are revealed. The study conducted in the article contains an analysis and generalization of judicial practice in resolving corporate disputes, which revealed inconsistencies in the approaches of courts to law enforcement, taking into account the position of the Supreme Court, which allowed to develop recommendations for improving judicial practice. Ukrainian corporate law leaves room for finding new solutions and ideas for protection in corporate relations, despite the latest legislative novelties. The article outlines the ways of development of judicial practice using, in particular, comparative law, dialectical and applied methods. Thus, the basis for improving the legal regulation of this category of corporate disputes should be the experience of the existing case law of the Supreme Court. Emphasis is placed on such problematic issues as to who can be the subject when applying to the court for invalidation of the decision, respectively, what is the range of plaintiffs and defendants, cases are presented and analyzed in which the plaintiffs are not only members but also their successors (heirs) . Peculiarities of application of special statute of limitations to claims in case of invalidity of decisions of the general meeting, especially in the context of application of special statute of limitations to the relations which have arisen earlier are investigated.

scholarly journals Mediation and termination of the lease agreement of the land share in case of its allocation in kind on the ground

2020 ◽  
pp. 333-337
Author(s):  
Diana Busuiok
Keyword(s):  
Supreme Court ◽  
Agricultural Land ◽  
State Committee ◽  
Legal Regulation ◽  
The State ◽  
Land Disputes ◽  
The Supreme Court ◽  
The Law ◽  
The Right ◽  
Lease Agreement

The article states that the legal regulation of land turnover requires their individualization. Therefore, in practice there is allocationof land shares (units) in kind on the ground. In this regard, the question still arises as to what happens to the land lease agreementin the case of allocation of land share - is it subject to termination or re-conclusion?It is noted that such disputes should be resolved not only in court, but also out of court – the order of mediation. Mediation shouldnot only take into account the interests of the parties to the land dispute and their needs, but also rely on current legislation on the issueand the practice of resolving such disputes by the Supreme Court. There is a need to determine the legislation on this issue and possibleapproaches to resolving such disputes through mediation.Determinants in the introduction of land share are the Decree of the President of Ukraine “On urgent measures to accelerate landreform in the field of agricultural production” of November 10, 1994 № 666/94 and the Decree of the President of Ukraine “On thedist ribution of land transferred to collective ownership of agricultural enterprises and organizations” of August 8, 1995 № 720 / 95.Despite the generally accepted fact in the theory of law that the object of turnover can only be individually identified property inthe transitional provisions of the Law of Ukraine “Land Lease” of October 6, 1998 № 161-XIV contains provisions according to whichcitizens – holders of certificates for the right to land share before allocating them in kind (on the ground) land have the right to enterinto lease agreements for agricultural land, the location of which is determined taking into account the requirements of rational orga -nization territory and compactness of land use, in accordance with these certificates in compliance with the Law of Ukraine “LandLease”.After allocating land in kind (on the ground) to the owners of land shares (units), the land lease agreement is renegotiated inaccordance with the state act on land ownership on the same terms as previously concluded, and may be changed only by agreementof the parties. Termination of the lease agreement is allowed only in cases specified by the Law of Ukraine “Land Lease”.The list of grounds for termination of the land lease agreement is not exhaustive. Cases of termination of the land lease agreement(share) may be provided by another law. However, the allocation of land on the basis of land share in kind on the ground as a basis fortermination of obligations of the parties is not provided by law, but in the order of the State Committee of Ukraine for Land Resources“Approval of the Standard Lease Agreement share” dated January 17, 2000 № 5.This inconsistency between these two acts, so different in their legal force, in practice leads to disputes over the grounds for terminationof the lease of land share in the event of its allocation.In this regard, in the Resolution of the Grand Chamber of the Supreme Court of September 1, 2020, case № 233/3676/19, a correspondingposition was expressed.Examining the above acts, we identified certain shortcomings in determining the grounds for termination of the lease of land(shares). Such uncertainty provokes land disputes. In order to improve the legal regulation of leased land relations, it is necessary to harmonize the legal requirements of differentlegal acts and enshrine in the Law of Ukraine “Land Lease” such grounds for termination of land lease as the allocation of land sharein kind on the ground.In order to effectively mediate land disputes, this inconsistency should be kept in mind in the following cases:1) when conducting contractual mediation, which will consist in concluding a land lease agreement (share) and agreeing on thegrounds for termination of this agreement. Such mediation will be aimed at preventing disputes over the grounds for termination ofsuch an agreement in the future;2) during the mediation of a dispute regarding the termination of the land lease agreement (share) in the case of its allocation inkind on the ground.

scholarly journals Banking operations as an object of administrative and legal protection

2018 ◽  
Vol 81 (2) ◽  
pp. 28-37
Author(s):  
M. Y. Bukreev
Keyword(s):  
Financial Institutions ◽  
Banking Sector ◽  
Banking System ◽  
Legal Protection ◽  
Legal Regulation ◽  
Practical Significance ◽  
Legal Norms ◽  
The Past ◽  
The Subject ◽  
Banking Operations

The subject matter of the research is the relations that are formed in the process of banking operations. It has been substantiated that banks and the banking system are among the most important financial institutions, which proper and stable functioning influences on all other spheres of life in the state. It is proved by the consequences of crises in the banking sector that have occurred in Ukraine over the past few years. Awareness of the importance of this area and the possible consequences of unlawful encroachments have determined the need to search for all legal means for combating delicts in the sphere of banking operations. Understanding the fact that one can achieve significant results in the sphere of protecting banking operations by administrative and legal means, has necessitated this scientific study. In order to analyze banking operations as an object of administrative and legal protection, the author has fulfilled the following tasks. The author has highlighted the use of the concepts of “protection” and “administrative and legal protection” in the context of their implementation in relation to banking operations. The foundations of Ukrainian and international administrative and legal regulation of protecting relations in the sphere of banking operations have been revealed. The essence and features of banking operations influencing the understanding of the sphere of protected relations have been outlined; and the content of administrative and legal protection of relations in the field of banking operations has been revealed. It has been noted that there is an extensive system of banking legislation on legal norms in Ukraine regulating banking operations that require legal protection. The practical significance of the obtained results of the article is determined by the substantiated provisions for improving the approaches to increase the efficiency of the administrative and legal protection of the relations in the sphere of banking operations. A number of practical results of the research can be used while studying administrative and legal means of protecting relations in the field of banking operations.

Practical significance of law constitutional principles

2020 ◽  
pp. 435-441
Author(s):  
Aleksandr Paramonov
Keyword(s):  
Public Relations ◽  
Legal Regulation ◽  
Practical Significance ◽  
Legal Consciousness ◽  
Direct Role ◽  
Positive Role ◽  
Legal Norms ◽  
Russian Law ◽  
The Law ◽  
Basic Ideas

We consider the constitutional principles of Russian law in the framework of positivist legal consciousness. We note the highest value of the law constitutional principles, as the basic ideas that underlie individual branches of law and all legal regulation. We focus on the practical significance of the constitutional principles of Russian law. We point out that in order to overcome defects in the legal consciousness of the population, it is advisable to duplicate the law principles that enshrined in the Constitution of the Russian Federation and in sectoral legislation. We emphasize that the practical significance of the law constitutional principles is manifested not only in their direct role in the legal regulation of public relations, but also in the fact that in judicial practice they can be used in the case of applying the analogy of law and the analogy of legislation. We indicate that this legal and technical tool is used to fill gaps in legal regulation. It is used in many branches of Russian law: civil, civil procedural, arbitration procedural, ad-ministrative procedural, family and others. Thus, the study shows the positive role of law constitutional principles in decision-making by a law enforcer in the absence of sectoral legal norms applicable in a particular situation.

DIRECTION OF THE CASE ON JURISDICTION: PROBLEMS OF LEGAL REGULATION AND FEATURES OF PROCEDURAL REGISTRATION

2021 ◽  
Vol 11 (3) ◽  
pp. 293-315
Author(s):  
D.Yu. VORONIN
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Appellate Courts ◽  
Judicial Practice ◽  
Wide Range ◽  
The Supreme Court ◽  
Universal Approach ◽  
Arbitration Procedure ◽  
The Russian Federation ◽  
The Difference

The paper presents a research of the new legal regulation for such an institute in relation to a regional and equal court, as the referral of a case received in accordance with part 4 of Article 39 of the Arbitration Procedure Code of the Russian Federation to a court of general jurisdiction, which is in jurisdiction to hear a case as it is assigned by law. The absence of procedural legal regulation of this action, which is, in author’s opinion, has an obvious procedural nature, and researched practice general jurisdiction courts demonstrate the uncertainty in implementation of the considered reform. The author analyzes the new procedural institution on the basis of his own vision of a number of procedural norms, as well as scholar works and historical experience. In particular, the author reasoning that the courts are to issue special rulings on the referral of cases received from arbitration to the courts of general jurisdiction. Moreover, the author considers the mechanism for adopting such a judicial act. The article presents a wide range of practical examples of the implementation of considered provision, as well as the difference in the approaches of the appellate courts to assess these implementation practice. In conclusion, the article presents the proposals for further improvement of the regulation of considered issue. Most likely such an improvement will be impossible without the universal approach established by the Supreme Court of the Russian Federation. Such improvements should result in uniform judicial practice, as well as further developments of procedural legislation.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

scholarly journals Legal regulation of aircraft leasing

2018 ◽  
Vol 239 ◽  
pp. 04007
Author(s):  
Elvir Akhmetshin ◽  
Kseniya Kovalenko
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Controversial Issues ◽  
The Subject ◽  
Aircraft Leasing ◽  
Lease Agreement

Currently, flights are an integral part of our lives. Sitting in the plane, we trust our lives not only to the crew but also to the aircraft. Today, the requirements for aviation are extremely high. But do not forget that the aircraft on which we fly are often the subject of a lease agreement. And we would like to consider the issues of aviation leasing in this article. In the legislation and the theory of civil law, there are no concepts of the contract of aviation leasing and the contract of leasing of aircraft. The leasing contract for aircraft is a contract in accordance with which the lessor undertakes to acquire into the ownership of the aircraft (plane) specified by the lessee for business or other professional purposes from the seller specified by him and provides the lessee with this property for a fee in a temporary possession and use. The contract may provide that the choice of the seller and the acquired property is determined by the lessor. In doctrine and practice, there is no consensus on the nature of the leasing agreement, nor can scientists agree on the nature of such a treaty: whether it is trilateral or bilateral, or represents two contracts (leasing and delivery). In civil law, one of the most controversial issues is whether the leasing agreement should be considered as an independent type of a civil law contract or a type of lease.

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