scholarly journals Establishment of things

2006 ◽  
Vol 78 (9) ◽  
pp. 413-441
Author(s):  
Janko Kubinjec
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Property Law ◽  
Human Relationship ◽  
Legal Concept ◽  
Legal Definition ◽  
The Law ◽  
Definition Of

Legal concept of person is to be constituted, while the legal concept of thing is to be established. Legal concept of thing is a metaphysical category that shall be differentiated from the positive-legal definition of thing as an empirical phenomenon, as well from the natural thing, which is also as an empirical phenomenon. Legal concept of thing is a spiritual phenomenon, which belongs to the field of objective spirit. The thing is the basis for the entire civil law. The wrong conclusion that civil law starts with ownership and ownership with possession, is based on the so called naturalistic error. For the title, the thing is primarily a freedom for the person, while the mortgage is the border with which the owner is confronted. At the point where freedom overflows from person to thing we have erga omnes effect of property rights. It is not possible to clearly and materially differentiate person from the thing without defining the law as the freedom, and without making this distinction, the persons can also be defined as res cogitans. In the property law, the essence is manifested through the human relationship. In the law of the contracts and torts the thing is neglected up to the point where we come to property, and point where property becomes the claim. If, in addition to that, directly natural refutation of things is produced, we are faced with the legal concept of damages. In the authentic law, the succession is always the concept pertaining to things and only in the non authentic law it may be the concept pertaining to persons.

scholarly journals Creation of Technical Conditions for Use or Infringement – The Meanders of the Warehouse Keeper’s Liability in Light of CJEU Judgment C-567/18 Coty Germany

2021 ◽  
Vol 52 (3) ◽  
pp. 265-282
Author(s):  
Krystyna Szczepanowska-Kozłowska
Keyword(s):  
Property Rights ◽  
Point Of View ◽  
Literal Meaning ◽  
Property Right ◽  
Third Party ◽  
Property Law ◽  
Industrial Property ◽  
The Absolute ◽  
The Law ◽  
Trademark Use

AbstractOne form of industrial property right infringement is stocking for the purpose of offering or marketing. This form of infringement appears both in EU legal acts on trademarks or designs, as well as in national regulations, including those concerning patents. What is specific to stocking when compared to other activities comprising the stipulated exclusivity of the holder of industrial property rights is the fact that the literal meaning of “stocking” does not explain whether the infringing party or the warehouse keeper is the entity that places the goods in storage. The structure of industrial property rights as absolute rights would theoretically permit the view that the law is violated by both the entity that accepts the goods for storage and the entity that places such goods in storage. To determine if there is an infringement, it must be established what the goods being stocked are further intended for. It is not without significance that the finding of an infringement of industrial property rights does not depend on fault or awareness. From the point of view of the industrial property law regime, it is difficult to find arguments against this understanding of infringement by stocking. Since the offeror of goods infringing industrial property rights may be held liable even if the goods have not yet been manufactured, it is conceivable that the entity accepting such goods for stocking is also liable. This interpretation of the concept of stocking would certainly correspond to the absolute nature of liability for infringement.In a recent judgment the CJEU confirmed that the warehouse keeper who, on behalf of a third party, stores goods which infringe trademark rights only creates the technical conditions for trademark use by this third party provided that the warehouse keeper is not aware of that infringement. The CJEU also confirmed that only the person who decides about the purpose of storing the goods can be treated as an infringer. However, the CJEU did not respond to the question regarding whether the warehouse keeper could be treated as an infringer if it pursues the aims of storing the goods at the request of the entity that put the goods into storage.

scholarly journals LEGAL STATUS OF THE POLICYHOLDER IN THE COMPULSORY STATE SOCIAL INSURANCE AGAINST AN ACCIDENT AT WORK AND AN OCCUPATIONAL DISEASE

2020 ◽  
Vol 1 (9) ◽  
pp. 43-50
Author(s):  
Oleksii Soloviov ◽  
Keyword(s):  
Occupational Disease ◽  
Social Insurance ◽  
Legal Status ◽  
Civil Law ◽  
Insurance Premium ◽  
Material Loss ◽  
Social Contribution ◽  
The Law ◽  
Definition Of ◽  
Compulsory State

The article considers the definition of the insured, which is contained in the Law of Ukraine «On collection and accounting of a single contribution to compulsory state social insurance» and based on this it is concluded that it includes only the persons and the main obligation of the insured – payment of insurance premium and does not establish additional or qualifying features that the insured must have. Given that the social security insurance mechanism was borrowed from civil law, the author examined the definition of the insurer from the standpoint of civil law and concluded that the presence of insurance interest is a prerequisite for determining a person as an insured and proposed his own definition of insurance interest – a certain property interest related to the need to suffer material loss in connection with damage to life, health and ability to work of the insured person as a result of an accident or occupational disease that occurs during the performance or in connection with the performance of certain work in the interests of the insured. The author emphasizes that the insurers in the relationship of social insurance against accidents at work and occupational diseases can be primarily employers. Based on the results of the analysis of the definition of the employer in various regulations, it was concluded that there is a certain inconsistency in science and legislation regarding this term, and therefore the legislative definition of the employer needs to be specified. This made it possible to develop proposals for making the necessary changes to certain regulations that contain this term. The concept and features of a single social contribution are researched. Peculiarities of insurance of persons performing works on the terms of civil law contracts are analyzed. Emphasis is placed on the unresolved issue of the customer - an individual who uses the work of other individuals under a civil contract, but without registering them as a business entity. It is believed that such persons should also act as payers of the single social contribution, and therefore it is necessary to amend the Law of Ukraine «On the collection and accounting of the single contribution to the obligatory state social insurance».

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 THE PROBLEM OF DETERMINING THE LEGAL REGIME OF “DISPUTED” REAL ESTATE: THEORETICAL AND PRACTICAL ASPECTS

2021 ◽  
pp. 19-24
Author(s):  
N.A. Pronina ◽  
T.N. Platunova ◽  
S.O. Kostyakova
Keyword(s):  
Real Estate ◽  
Russian Federation ◽  
Civil Law ◽  
Property Right ◽  
Legal Regime ◽  
Land Plot ◽  
Legal Definition ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article raises the following topical problems currently inherent in the institution of real estate in theRussian Federation: the unsuccessful legal definition of a real estate object, enshrined in Art. 131 of the CivilCode of the Russian Federation; qualification of objects as immovable and, accordingly, delimitation of themfrom movable ones; the emergence of objects with a controversial legal regime; the need to move from themodel of “plurality” to the model of “unity” of real estate objects. Also, the authors of this article analyzea number of approaches aimed at resolving the above problems and the possible consequences (both positiveand negative) of their implementation in practice, put forward their views and offer their own solutionto these problems. A variant of the legalization of “disputable” objects is proposed by introducing the rightof construction into the civil law of the Russian Federation as a limited property right to use a land plot withthe extension of this right to everything that is being built on such a land plot. The examples of legislativeregulation of the right to build in the civil law of pre-revolutionary Russia are considered, the elements of theright to build in the current law of the Russian Federation are revealed.

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.

12. Theft

2020 ◽  
pp. 356-406
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Civil Law ◽  
The Supreme Court ◽  
The Law ◽  
Definition Of ◽  
Court Of Appeal

This chapter examines the law governing theft. It considers the extent to which the criminal law of theft conflicts with civil law concepts of property; whether it is possible to steal property that belongs to oneself; the types of property that may be stolen; and the extent to which it is possible to provide a definition of ‘dishonesty’. The test for dishonesty has been fundamentally altered by the Supreme Court and the Court of Appeal, developments which are analysed in this chapter.

Visually Handicapped People and the Law

1987 ◽  
Vol 81 (2) ◽  
pp. 53-58 ◽  
Author(s):  
V.E. Bishop
Keyword(s):  
Final Section ◽  
Case Law ◽  
Legal Definition ◽  
Legal Precedent ◽  
Legal Position ◽  
Handicapped People ◽  
The Law ◽  
Definition Of ◽  
Visually Handicapped

This paper explores the definitional problems of visual handicaps, especially in terms of the legal definition of blindness. A brief history is given of the laws concerning visually handicapped people, and a discussion of case law describes legal precedent. A final section presents suggestions for strengthening the legal position of visually handicapped people in future litigation.

Troubled Foundations for Private Law

2008 ◽  
Vol 21 (2) ◽  
pp. 459-476
Author(s):  
Stephen A. Smith
Keyword(s):  
Distributive Justice ◽  
Human Life ◽  
Civil Law ◽  
Corrective Justice ◽  
Property Law ◽  
Private Law ◽  
Wide Range ◽  
Commutative Justice ◽  
The Law ◽  
Historical Comparative

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations (contract, tort, unjust enrichment), though ignored and disparaged for much of the 19th and 20th centuries, are today familiar to most private law scholars (thanks in part to Gordley’s earlier work). Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories (e.g., those of Ernest Weinrib or Jules Coleman). In Gordley’s presentation, commutative (or ‘corrective’) justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ’distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations.

scholarly journals On the structure and methodological criteria of the doctrine of property rights in Russian civil law

2021 ◽  
Vol 1 ◽  
pp. 11-13
Author(s):  
E.A. Karpov ◽  
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
Property Law ◽  
Present Stage ◽  
Methodological Criterion ◽  
Modern Period ◽  
Revolutionary Period

The article examines the formation of methodological criteria for the doctrine of property law and its structure. The author reveals the very concept of the methodological criterion of the doctrine, analyzes various criteria of the doctrine of property law in the pre-revolutionary period. Soviet and modern period. The author notes the lack of a clear methodological criterion for the doctrine of property law at the present stage.

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