Preventive Duties under Private and Public Law scilicet spei permultum sed rei paulum

2020 ◽  
Vol 2 (103) ◽  
pp. 51-71
Author(s):  
Dariusz Fuchs
Keyword(s):  
Contract Law ◽  
Legal Aspects ◽  
Public Law ◽  
Civil Code ◽  
Insurance Contract ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
European Insurance ◽  
The Relationship

The article aims at discussing preventive obligations incumbent on the insurer and other entities of the insurance relationship, in particular on the policyholder. The analysis takes into account comparative legal aspects, and therefore refers to the Principles of European Insurance Contract Law (PEICL). The author emphasizes the evolution of the provision of Article 826 of the Civil Code, which has changed his views on the scope of the preventive obligation under insurance contract. He points out the possible differences of interpretation as to the scope of the prevention as well as the issue of the insurer's reimbursement of costs due to its implementation by the policyholder. What is more, the relationship between public and private law standards has been presented, with a particular focus on Article 826 of the Civil Code. Finally, de lege ferenda conclusions have been presented.

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

scholarly journals Evaluation Concepts in Russian Codifications of Civil Law

Lex Russica ◽  
2019 ◽  
pp. 37-50
Author(s):  
V. G. Golubtsov
Keyword(s):  
Essential Feature ◽  
Civil Law ◽  
Legal Regulation ◽  
Public Law ◽  
Civil Code ◽  
Property Law ◽  
Private Law ◽  
Private And Public ◽  
The Impact ◽  
Basic Evaluation

Based on general legal and civilistic experience in the study of evaluative concepts, the author investigates the general and the specific in their civil law nature. As the result of the study, the author draws the conclusion that the existence of evaluative concepts forms a distinctive essential feature of civil law as private law. It is noted, however, that the doctrine, law-maker and law-enforcer need basic guidelines that will allow to define objective criteria for nominating concepts as evaluative, as well as for determining the boundaries of their systematic interpretation. Also, the author concludes that the impact of evaluation concepts on legal regulation in private and public law is different. In civil law, depending on the localization in the text of the Civil Code, it is possible to distinguish two groups of evaluation concepts. The first group includes the basic evaluation concepts that allow us to see the goals, meaning and specifics of civil law regulation. The second group, in the author’s opinion, includes peripheral evaluation concepts that are utilized by property law and separate contractual constructions and the presence of which allows to avoid unnecessary causality and, at the same time, makes it possible to bring legal regulation closer to real relations.

Public/Private

2020 ◽  
pp. 466-480
Author(s):  
Jean-Bernard Auby
Keyword(s):  
Essential Feature ◽  
Common Law ◽  
Public Domain ◽  
Public Law ◽  
Roman Law ◽  
Private Sphere ◽  
Private Law ◽  
The Public ◽  
Private And Public ◽  
The Relationship

This chapter examines the distinction between public law and private law. It stresses the importance of being aware of this difference between the public/private and public law/private law dichotomies. The public–private divide is universal even if, from one society to another, it can be conceived differently in certain ways. All human communities have an idea about the relationship between the private sphere and the public domain. By contrast, the distinction between public law and private law is not universal. It may be ignored, rejected, or confined to a very limited sphere of operation as, traditionally, in common law systems. Conversely, the public law/private law distinction may be understood as an essential feature of the juridical world, as was the approach of Roman law, inherited by the continental legal systems.

scholarly journals Jurisdiction, Illegality and Fault: An Unholy Trinity

2019 ◽  
Vol 16 (1) ◽  
pp. 69-100
Author(s):  
Roderick A. Macdonald
Keyword(s):  
Public Law ◽  
Corrective Justice ◽  
Risk Allocation ◽  
Private Law ◽  
Public And Private ◽  
Statutory Duty ◽  
Policy Conflicts ◽  
History Of ◽  
Per Se ◽  
The Relationship

The relationship between fault and ultra vires is one of the most difficult aspects of the law of Crown Liability. It sets clearly into relief the policy conflicts which arise when private law risk allocation regimes (the adversarial adjudicative imposition of liability rules grounded in a concept of corrective justice) are invoked to police the functioning of public law risk allocation regimes (the allocation through various non-adjudicative procedures of the benefit and burden according to a variety of conceptions of distributive justice). The Crown Liability Act and article 94 of the Code of Civil Procedure both incorporate as against the Crown rules of private law delictual behaviour which were originally developed for regulating activity between private parties as such. They, therefore, compel courts to determine whether jurisdictional error per se constitutes fault. The history of twentieth century attempts to reconcile ultra vires and fault is a history of the judicial search for boundary criteria between realms of public and private law. These boundaries have been, among others, a good faith test, functional criteria such as judicial and legislative immunity or immunity for planning functions, the notion of breach of statutory duty, and so on. Each of these attempts has ultimately be repulsed by the desire of litigants to recover against the Crown on the widest possible basis. Modern theories of jurisdiction being so all-embracing and modern conceptions of fault being so comprehensive, the courts are constantly being asked to develop an absolute equation between fault and ultra vires. The paper concludes by exploring several options for harmonizing private law and public law risk allocation regimes. It recommends a restructuring of the Crown Liability Act so as (i) to permit recovery on a variety of no fault bases, (ii) to permit recovery even when intra vires acts have been undertaken (if these cause significant or disproportional damage) and (iii) to permit the immunization of certain governmental functions from private law liability even when the decisions in question have been taken in an ultra vires fashion.

scholarly journals WEWNĘTRZNY RYNEK UBEZPIECZEŃ A HARMONIZACJA KONTRAKTU UBEZPIECZENIOWEGO

2017 ◽  
Vol 4 (2) ◽  
pp. 41
Author(s):  
Zdzisław Brodecki ◽  
Katarzyna Malinowska
Keyword(s):  
Product Liability ◽  
Contract Law ◽  
Insurance Contract ◽  
Private Law ◽  
European Contract ◽  
Insurance Contracts ◽  
General Contract Law ◽  
European Insurance ◽  
The Impact ◽  
European Contract Law

Tendencies on Internal Insurance Market vis a vis Harmonization of European Insurance Contract LawSummaryIn the paper, the authors describe the main contemporary process which takes place w ithin the insurance contract law in Europe - viz the Euro-merge of private law, as well as the evolution of the insurance contract law during the last decades. The process o f the unification of European private law will also affect the insurance contract law. First of all the impact o f the development o f the ideas shaped in a form of general contract law drafted as the Restatement of the Principles of European Contract Law by the „Lando Group” is undeniable. These rules also applicable to some extent to insurance contracts show that the process of the unification o f insurance contract law cannot be stopped and that it will constantly develop. There can also be observed a process of a specific European com m on law being developed in Europe in different branches, such as product liability, consumer protection, etc. This already influences the harmonization o f the European insurance contract law, and the obstacles to harmonization, existing even ten years ago, have disappeared. The Restatement o f Insurance Contract Law being in preparation by the „Group of Innsbruck” will probably constitute a basis for a future codification o f the insurance contract law.

scholarly journals Сomplexity of structure of institute of bank responsibility

2016 ◽  
Vol 4 (3) ◽  
pp. 0-0
Author(s):  
Вера Степанова ◽  
Vera Stepanova
Keyword(s):  
Complex Structure ◽  
Public Law ◽  
Legal Responsibility ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
The Subject ◽  
The Right ◽  
Criminal Legislation ◽  
Credit Institutions

The article is devoted to research of institute of bank responsibility as complex structure which enters both in public, and private law. Bank responsibility as an independent legal design acts as an object of research. Both ad banking laws, and the codified legal acts which also contain regulations on responsibility of credit institutions (banks) are in detail analyzed. Legal comparison of content of standards of ad banking laws and norms on responsibility of credit institutions in the codified legal acts on features of subject and object accessory is carried out, the special attention is paid to bank responsibility in its private-law aspect where not only the legal, but also natural person can be the subject. Examples of standards of the civil legislation which are also related to bank responsibility are given. From the conducted research it is possible to conclude that uniqueness of institute of bank responsibility is that it is on crossing of private and public law. Bank responsibility only partially (public part) is included into institute of financial and legal responsibility while private-law responsibility is regulated also by standards of the civil, administrative and criminal legislation. Article is executed with assistance of RGNF, the project No. 16-33-00017 "Complex interindustry institute of legal responsibility: concept, structure, interrelations and the place in system of the right".

scholarly journals Disclosure duties in insurance contract

Pravni zapisi ◽  
2021 ◽  
Vol 12 (1) ◽  
pp. 184-212
Author(s):  
Katarina Ivančević
Keyword(s):  
Risk Assessment ◽  
Comparative Law ◽  
Contract Law ◽  
Civil Code ◽  
Insurance Contract ◽  
Contractual Obligation ◽  
The Republic ◽  
Special Rules ◽  
European Insurance ◽  
Preliminary Draft

In this paper, the author considers issues related to the pre-contractual obligation of the insurance policyholder to report to the insurer circumstances significant for the risk assessment. The aim of this paper is to compare the provisions of the The Law on Contract and Torts (LCT), proposals for changes in Serbian law envisaged in the Preliminary Draft of the Civil Code of the Republic of Serbia with solutions from comparative law and the provisions of the Principles of European Insurance Contract Law (PEICL). The analysis showed that it is necessary to update the solutions from the LCT and that the proposed changes, in terms of special rules regarding the obligation to report circumstances relevant to risk assessment to the insurer, are largely in line with modern solutions in comparative law and PEICL. The author points out that the proposed solutions can be supplemented and improved.

scholarly journals Legal and Historical Prerequisites for the Transfer (Inheritance) of the Deceased Person Property to Public Legal Entities

2020 ◽  
pp. 125-137
Author(s):  
Maryna BORYSLAVSKA
Keyword(s):  
Public Law ◽  
Civil Code ◽  
The State ◽  
Private Law ◽  
Legal Capacity ◽  
Public And Private ◽  
Legal Personality ◽  
The Status ◽  
Legal Capability ◽  
Legal Entities

The article studies the peculiarities of participation in civil relations of such public legal entities as the state and the territorial community. It is established that according to part 2 of Article 2 of the Civil Code of Ukraine, along with legal persons of public law, they are assigned to subjects of public law. Full determination of the status of public entities in private law remains problematic. This is due to the dual status of these entities: as participants in public and private relations. It is stated that despite the fact that the State and territorial communities are primarily subjects of public law, they take part in civil relations, taking into account the signs of these relations defined in the Civil Code of Ukraine. The classification of public legal entities as special entities leads to their participation in civil relations through state authorities and other entities that are legal persons; representation of their interests by physical persons is not excluded. It is confirmed that the civil legal capability and legal capacity of public legal entities is reduced to the legal capacity of bodies acting in their interests. The acquisition of legal personality by public legal entities is carried out mainly in accordance with the norms of constitutional and administrative law. It is determined that the civil legal capacity of public legal entities is limited in scope. On the basis of the analysis of acts of legislation on inheritance of the Soviet and modern period, it is established that the current legislation provides for the maximum removal of public legal entities from the field of private law. This is manifested in hereditary relationships. Public law entities may acquire ownership of the property of the deceased if: 1) a will is drawn up in their favor; 2) if the property was not inherited by the heirs and by decision of the court is recognized as fictitious and becomes the property of the territorial community. It is confirmed that under Ukrainian law the transfer of fictitious property to communal property is not recognized as inheritance. Separately, it should be noted that before the entry into force of the Civil Code of Ukraine of 2003, fictitious property in Ukraine was inherited by the state, now by territorial communities.

scholarly journals Interpretation in modern legal literature on the functioning of private and public law

2021 ◽  
pp. 258-263
Author(s):  
N. V. Teremtsova
Keyword(s):  
General Theory ◽  
Legal System ◽  
Public Law ◽  
Fundamental Rights ◽  
Traditional Theory ◽  
Private Law ◽  
Public And Private ◽  
Stage Of Development ◽  
Private And Public ◽  
Theory Of Law

The article is concerned with problem of interpretation the public and private law. At the beginning of the article the author describes the imperfection of approaches to differentiation.The article examines the topical issue of general theory of law, which contains a delicate phenomenon that has existed for a long time, but during all this time has not developed a common understanding of its basic parameters, and therefore remain controversial theoretical foundations for construction and operation. Its existence raises a number of very important questions about properties for the legal community. At the moment it is not possible to assert the presence of the same understanding of the essence of separation of the right to private and public. Different scientific schools actually offer his vision within the Ukrainian legal system and traditional doctrine. It would be wise to mention here at the present stage of development of legal matter, it is necessary to make some adjustments to the traditional theory of law, as well as some provisions of the law regarding the division of law into private and public. In brief each new field studied by scientists is a legal phenomenon, but when applying general theoretical conclusions to it, it is necessary to take into account the specifics of the object under study in terms of the general theory of law. To conclude a pattern that allows to establish two objectively independent branches of law, linking them to the manifestations of public and private foundations, and to represent the spread of rights to private and public, as it is not just a classification, but conceptual, concerning the most fundamental rights of each place and role in human life, its defined values, continues in the theory of law today. Keywords: public law, private law, legal system, legal science, branches of law. References

Part VI Rights—Structure and Scope, Ch.38 The Constitutionalisation of Indian Private Law

2016 ◽  
Author(s):  
Balganesh Shyamkrishna
Keyword(s):  
Constitutional Law ◽  
Tort Law ◽  
Contract Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Property Law ◽  
Private Law ◽  
The Public ◽  
The Past ◽  
The Relationship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon is evident not only with respect to tort law, but also to a lesser degree in other areas of private law, such as contract law and property law.

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