scholarly journals Peculiarities of Protection of Rights and Interests of Heirs: Theoretical Aspects

2020 ◽  
Vol 10 ◽  
pp. 355-362
Author(s):  
Yuri O. Zaika ◽  
◽  
Oleksandr Ye. Kukhariev ◽  
Volodymyr L. Skrypnyk ◽  
Aliesia A. Mytnyk
Keyword(s):  
Civil Rights ◽  
Scientific Community ◽  
Civil Law ◽  
Inheritance Law ◽  
Legal Literature ◽  
Legal Nature ◽  
The Will ◽  
Methodological Approaches ◽  
Definition Of ◽  
The Right

The relevance of this study is due to the necessity to ensure the proper exercise of subjective civil rights in the field of inheritance law. Protection in inheritance is related to the general right to protection. Due to the peculiarities of inheritance law as a sub-branch of civil law, it has its own specifics, which is manifested primarily in the definition of special ways to protect violated unrecognized or challenged rights. In addition, the protection of the rights of heirs takes place only within the inheritance relationship, which is characterized by a long nature. The purpose of the article is to identify the features of protection of subjective civil rights of heirs in the field of inheritance. This necessitates the use of special methodological approaches that will identify the characteristics of protection of the rights of heirs, as well as research methods such as dogmatic, formal-logical, systematic, comparative law. The article analyses the recognition of the right of ownership of inherited property in court and proves that this exceptional method of protection is used if there are obstacles to the notarization of inheritance rights. The most typical and widespread special ways to protect the rights of heirs are considered: removal from the right to inherit, invalidation of the will, change of the order of obtaining the right to inherit, reduction of the size of the obligatory share in the inheritance. The outlined issues were not widely covered in the legal literature, as the attention of scholars was mainly in the perspective of clarifying the legal nature of protection and defence, the ratio of forms and methods of protection of subjective civil rights, analysis of general methods of protection of subjective civil rights. That is why this work is an important contribution to outlining the issue of inheritance law and attracting due attention of the scientific community.

scholarly journals To the Definition of Preferential Right in Civil Law

2021 ◽  
Vol 17 (2) ◽  
pp. 45-53
Author(s):  
A. V. Pikalov
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
Legal Obligation ◽  
Specific Group ◽  
Legal Nature ◽  
The Subject ◽  
Single Idea ◽  
Definition Of ◽  
The Right ◽  
The Relationship

The essential features of the preferential right are revealed and the main approaches to understanding its legal nature are considered. According to the first approach, preferential rights are defined as cases when, under all equal conditions, the advantage is granted by law to a specific group of persons with some special characteristics. The second approach does not have a single idea: the authors focus on a certain aspect of preferential rights and propose to understand other preferential rights in the same way. The place of “preferential rights” among other exceptions in the law is determined, the relationship and difference from related legal categories are shown. Based on the results of carried out research, the author's definition of a preferential right is developed as an additional possibility based on the property (corporate) interest of its owner, established by law or contract, to demand from the subject-accomplice in the right or the party in respect of proper behavior in the form of providing advantages over third parties. This right is proposed to be considered an independent subjective right due to the obvious independence of its existence in objective law as a measure of possible behavior defined by law (by contract, constituent document), the presence of a construction corresponding to it of a legal obligation, its own mechanism for the implementation of this right, and for a number of other reasons set out in the work.

scholarly journals PROSPECTIVE DIRECTIONS OF IMPROVEMENT OF CIVIL LIABILITY

2021 ◽  
pp. 141-146
Author(s):  
O. Zozulyak ◽  
Y. Paruta
Keyword(s):  
Artificial Intelligence ◽  
Civil Rights ◽  
Scientific Community ◽  
Autonomous Robots ◽  
Civil Law ◽  
Limited Liability ◽  
Civil Liability ◽  
Scientific Article ◽  
Simultaneous Application ◽  
Definition Of

The article is devoted to the study of such an important area of civil law as civil liability. The scientific article examines the definition of "civil liability". It is emphasized that civil liability consists of many aspects, including a sanction, a new obligation, the replacement of an unfulfilled obligation with a new one, and so on. It is supported the position that the application of civil liability is voluntary, but the possibility of using jurisdictional forms of liability is not excluded. The authors of the article agree with the approach proposed in the doctrine on the expediency of the transition to the so-called behavioral concept of guilt. The importance of the theoretical demarcation of the institution of ensuring the fulfillment of obligations and measures of civil liability is emphasized. The possibility of simultaneous application of different forms of civil liability is allowed. It is argued that it is appropriate to change the approach to determining and compensating of non-pecuniary damage. It is needed because compensation for non-pecuniary damage depends on the violation of a person's civil right, and not on the envisaged possibility of compensation for non-pecuniary damage in law or contract. The authors of the article positively perceive the position on the need for consolidate the provisions on the civil nature of the liability of officials of corporations.  It is focused on the need to consolidate the subsidiary liability of members of limited liability companies in the event of bringing the failure through their fault. The position to the prospects of further scientific research in the field of responsibility of autonomous robots and artificial intelligence is expressed. It is concluded that due to the multi-vector nature of the concept of "civil liability" there is a need for further meticulous attention of the scientific community to the institution of private liability. In particular, it is necessary to develop qualitative criteria for distinguishing between the institution of abuse of subjective civil rights and the institution of civil liability; research of the peculiarities of the responsibility of such legal entities as owners of significant participation in corporations, supervisors of banking groups and other specific entities, etc.

scholarly journals On the issue of restriction of individual rights in civil law. Correlation between the concepts of restriction and encumbrance of civil rights

2021 ◽  
pp. 146-150
Author(s):  
V.M. Marovdi
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Fundamental Principle ◽  
Individual Rights ◽  
Basic Law ◽  
National Legal System ◽  
Definition Of ◽  
The Right ◽  
The Relationship ◽  
Work First

In this article the author considers the concept of restriction of individual rights in civil law, as well as the re-lationship between the concepts of restriction and encumbrance of civil rights. First of all, the lack of a legislative definition of the concept of restriction of individual rights in civil law, as well as the ambiguity of the position of the legislator on the use of the term restriction and its place among related conceptsIn writing this work, first of all, attention was paid to the Constitution of Ukraine, which is the Basic Law, which serves as a guide that establishes the general boundaries of human and civil rights. The connection of the provisions of the Constitution with the norms of the Civil Code of Ukraine within the framework of the chosen topic was presented. Emphasis is placed on the fundamental principle according to which the national legal system is built, namely: “everything is allowed that is not expressly prohibited by law.”The views of some scholars who adhere to their vision of the concepts under study are given. In addition, in this study, the relationship between the concepts of restriction and encumbrance of individual rights in civil law. In the process of writing this work, the positions of legal scholars who had relatively similar positions were given. They distinguish between the above concepts, and provide the relevant features. However, outside the scope of this study were many works of scientists who do not see a difference in these concepts.None of this was left out of the regulatory framework for the definition of the above concepts at the legislative level. In particular, it was found that in contrast to the concept of restriction of individual rights, including in civil law, the current legislation contains a definition of encumbrance. There are several acts that provide this definition. And in all cases, the definition is different.Based on the analysis of regulations, it was found that the legislator does not consistently approach the definition of encumbrance. In particular, in some cases the latter includes the encumbrancer’s right to the debtor’s movable property or restriction of such right, in others - prohibition or restriction of disposal and / or use of real estate, and in some cases the legislator identifies encumbrances and restrictions.According to the results of the study, the conclusions on the failure to define in national law the concept of re-strictions on the rights of persons in civil law, as well as the lack of a clear distinction between the concept of restric-tion of the right of person and encumbrance, in particular under civil law. There is a position on the need for further research on relevant topics, which will ensure clarity and clarity of the law, and promote its effective application, as well as consensus on this issue among scholars.

scholarly journals Acquisition of Ownership for Unauthorized Construction

2020 ◽  
pp. 160-168
Author(s):  
Olha BORTNYK
Keyword(s):  
Real Estate ◽  
Free Will ◽  
Civil Law ◽  
Building Codes ◽  
Land Plot ◽  
Special Construction ◽  
Legal Nature ◽  
The Will ◽  
Under Construction ◽  
The Right

Legal relations concerning spontaneous construction are a special construction, which is not a classic example of civil relations, which are characterized by legal equality, free will, property independence of their participants, which are collectively considered the fundamental foundations of civil law. The study identifies and reveals the components of the basis for the acquisition of ownership of unauthorized construction, including: ownership can be recognized as a person for the property, which must have certain characteristics, necessary and integral features (characteristics); such property, by its legal nature, must belong to immovable property; construction must be under construction or already built; illegality (illegality) of such construction; constructed real estate or property that is under construction is located on a land plot that has not been allocated for this purpose, property is built or is being built with significant violations of applicable building codes and regulations, etc. Provisions on the understanding of each of the components of the basis for the acquisition of ownership of unauthorized construction are disclosed. Peculiarities of application of norms on unauthorized construction depending on the will of the owner of the land plot on which the unauthorized construction was carried out are stated, as well as attention is paid to the possibility of acquiring ownership of unauthorized construction by a person who did not carry out construction or the land owner. Opinions were expressed regarding the referral of the issue of acquiring the right of ownership for unauthorized construction to judicial jurisdiction.

scholarly journals Problems of the definition and characteristics of the contractual basis for the limitation and encumbrance of ownership of real estate in Ukraine

2021 ◽  
pp. 341-348
Author(s):  
Inna Sevryukova
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Civil Law ◽  
Legal Regulation ◽  
Real Property ◽  
Legal Literature ◽  
Legal Nature ◽  
Characteristic Features ◽  
State Registration ◽  
The Right

Introduction. The legal description of the contractual grounds for restrictions and encumbrances on the right of ownership of real estate can be provided only after a comprehensive study of the common features of the contractual structures, which establish the relevant rights and obligations of the parties. The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. It should also be emphasized that each subjective right has its limits of exercise, including the subjective right of ownership, as well as other real property rights. Of course, the nature of such restrictions must be different and depend on the content and nature of the restricted right, its object and the grounds for the restrictions. That is, restrictions on property rights and other property rights cannot be the same. Restrictions on property rights are established in the interests of society and arise by law, as well as in the interests of individuals (on the basis of law, contract, court decision), and restrictions on other property rights are primarily due to protection of the property from which they originate and the legitimate interests of the owner. In our opinion, the category of real contracts should include those types of contracts relating to real estate, including contracts of encumbrance of property rights on the basis of which the rights subject to state registration arise. Purpose and objectives of the study The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. Therefore, we can argue for the existence of a certain generalizing type of contract, the features of which are inherent in all its subspecies, in particular, contracts for the establishment of easements, superficies, emphyteusis, mortgage agreement. Such an agreement in the legal literature is called by some authors as a real contract. However, issues concerning its legal nature, place in the system of civil law contracts remain debatable. Research methods. The research carried out in the article is based on the assessment of generally accepted approaches to defining the characteristic features of problematic issues of contractual grounds for the emergence of restrictions and encumbrances of property rights to real estate. It should be emphasized that these issues are controversial due to the lack of clear legislative regulation, which leads to imperfect legal regulation and violations of the rights of participants in property turnover. Research conclusions. As a result of the study, the idea is given that in the current legislation of Ukraine due to the lack of a clear concept of the relationship between the category of "encumbrance" and "restriction" of property rights, as well as the uncertainty of property rights, some questions remain about the classification of certain rights accordingly, about the types of material contract, this issue is debatable and needs further study. It is possible to make about polystructurality of the real contract that causes division of this type of the civil law contract into kinds and subspecies. In our opinion, such a division depends on the legal nature and scope of the relevant types of restrictions and encumbrances on the right of ownership of real estate, which are proposed by current civil law.

scholarly journals The Right to Forced Heirship in the Legislation of Ukraine and Foreign Countries

2019 ◽  
pp. 251-259
Author(s):  
Alla KIRYK
Keyword(s):  
Legal Protection ◽  
Legal Regulation ◽  
European Countries ◽  
Basic Principles ◽  
Inheritance Law ◽  
Freedom Of Will ◽  
Foreign Countries ◽  
The Will ◽  
Definition Of ◽  
The Right

Investigated the combination of the basic principles of inheritance law — freedom of will and state legal protection of the interests of disabled family members and relatives. Analyzed the principle of freedom of will which is typical for all developed legal systems. It is established that the legislation of Ukraine does not contain a definition of the freedom of will, but there is no doubt about the existence of this principle, which follows from an analysis of the Civil Code of Ukraine. It has been determined that the institution of the forced heirship is a social security measure that is designed to financially support the category of people who need special protection. Analyzed the aspects of the limitation of the freedom of will. The first restriction on the freedom of will is the right to demand heirs under the law against heirs under the will, another restriction is applied through the reserve system. The analysis of the legislation of foreign countries in the field of forced heirship. It has been determined that most European countries include the children of the testator and, in some cases, the widow (widower) and the parents of the testator as forced heirs; instead, Ukrainian law classifies the number of forced heirs as minor, adult disabled children of the testator, disabled widows (widowers) and disabled parents. Have been studied the novelties of the legal regulation of inheritance of the forced share in Austria, Hungary, Belgium and other European countries. Investigated the tendency to reduce the number of obligatory heirs by depriving the widow (widower) and the parents of the testator. But it is possible for these persons to go to court with a lawsuit on establishing usufruct on the property of the testator.

scholarly journals DEFINICJA PAPIERÓW WARTOŚCIOWYCH DŁUŻNYCH

2017 ◽  
Vol 3 (2) ◽  
pp. 93
Author(s):  
Andrzej Chłopecki
Keyword(s):  
Civil Law ◽  
Main Subject ◽  
Short Overview ◽  
Legal Nature ◽  
Different Types ◽  
Hybrid Securities ◽  
Definition Of ◽  
The Right ◽  
Mixed Nature

Definition of Debt SecuritiesSummaryThe main subject of this article is the definition of debt securities in Polish civil law. This expression („debt securities”) used in many parliaments bills, was not defined on the level of the parliaments bill. Especially in cases of so called „hybrid securities” (securities with the mixed legal nature) there is a necessity to analyze and define their legal nature. This article gives a very short overview on the different types of securities and proposes their systematical classification. The main conclusion of this article is: either in the case of the mixed nature of securities, the right to demand from the issuer to withdraw securities (to pay for them or exchange them into a different type of securities) determines the legal nature of securities as debt securities.

scholarly journals Protection of civil property rights in case of recognition of the contract as not concluded

2021 ◽  
Vol 2 (20) ◽  
pp. 3
Author(s):  
O. A. Surzhenko
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Civil Law ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Law ◽  
The Right ◽  
Legal Consequences

The article examines the problems of protecting civil property rights, one of the ways of which is to recognize the transaction as invalid. When analyzing this method of protection, violations by a transaction of the conditions of its action, the legal nature of invalid transactions, individual grounds and legal consequences of their invalidity are considered. Transactions that have certain drawbacks, and therefore do not meet the conditions that make the person’s actions legitimate, closely intersect with other actions that also do not lead to the purpose for which they were committed. These are not concluded contracts. The plane of intersection of these actions is quite significant, and the criteria for their delimitation are not regulated in the law, but in judicial practice are sometimes worked out contradictory. This applies to non-compliance with the requirements for the form of the transaction (in particular, the signature of the person), essential conditions, and other provisions of the law.Protection of civil rights is one of the most important categories of the theory of civil and civil procedural law, without clarification of which it is very difficult to understand the nature and characteristics of civil sanctions, the mechanism of their implementation and other issues arising in connection with the violation of civil rights. It is noted that the originality of regulatory civil law is that it arises from legitimate legal actions and is aimed at satisfying any property need. The force of coercion gives it the ability to be provided with legal measures. The right (entitlement) to protection in regulatory legal relations is one of the transactions of any subjective civil law, according to which the rightholder can, in the event of violation of the right, make a demand for the protection of the violated civil law

scholarly journals Legal Nature of the Embryo in Vitro

Lex Russica ◽  
2019 ◽  
pp. 122-130
Author(s):  
D. A. Belova
Keyword(s):  
Civil Rights ◽  
Conflicts Of Interest ◽  
Human Life ◽  
Human Embryos ◽  
Legal Regime ◽  
Assistance Program ◽  
Legal Nature ◽  
The Will ◽  
Definition Of

The paper is an attempt of scientific understanding of the legal nature of the embryo in vitro, undertaken on the basis of the regulations governing their legal regime, as well as the practice of their application and doctrinal research. Embryos in vitro, being human embryos conceived and developing outside the mother’s body, because of their autonomous existence have raised questions about their legal nature. Without such determination, it is impossible to decide the fate of embryos in the event of the divorce of the persons who expressed the will to create them, in the event of the death of one or both of them (the so-called «orphan» embryos), in the event of the refusal of one or both of them to continue the reproductive assistance program. The paper examines the main points of view on the nature of the embryo in vitro, established in the doctrine, namely whether it is a subject of law, the object of law or is a special legal phenomenon, sui generis. The author comes to the conclusion that the embryo can not be attributed to the category of things, as well as to a broader category of property due to the lack of value equivalent and the inadmissibility of attempts to determine it, as otherwise contrary to the principles of morality. The embryo does not have legal capacity under the provisions of the current civil law, and granting it such a capacity may entail certain problems and conflicts of interest outlined in the paper. The most optimal is the consideration of the embryo as a special legal phenomenon (sui generis) with the definition of its place in the system of elements of legal relationship or an independent object of civil rights with a special legal regime, as the basis of which the author proposes to lay the principle of respect for human life at any stage of its development and the principle of preservation of human life.

scholarly journals Concept and Content of Corporate Rights as an Object of Civil Law Regulations

2020 ◽  
pp. 182-189
Author(s):  
Kostiantyn LEONOV
Keyword(s):  
Civil Rights ◽  
Private Property ◽  
Civil Law ◽  
Integrated Approach ◽  
Business Organization ◽  
Business Law ◽  
Foreign Investors ◽  
Corporate Rights ◽  
Legal Nature ◽  
Definition Of

During the years of independence, entrepreneurship in Ukraine has undergone a significant evolution. The opening of domestic markets and stable economic growth contributed to the emergence of a significant number of foreign investors who became participants (shareholders) of domestic companies. Along with foreign investors in Ukraine, European approaches to business structuring, building a model of relations between partners, standards of corporate governance, ethics, etc. began to be applied. The development of corporate law was significantly influenced by Ukraine's recognition of private property and guaranteeing equality of all forms of ownership. In view of the above, the issue of essential content of corporate rights, in particular their role in civil law relations, becomes especially important. Assigning corporate rights to a certain type of objects of civil law and distinguishing the features of their turnover requires, first of all, determining the legal nature of corporate rights, identifying the characteristics and formulating their definition. The most common views on the legal nature of corporate relations are the approaches of civil doctrine, business law, as well as the so-called integrated approach. Thus, the definition of corporate relations is inextricably linked with the definition of the range of legal entities for which we can generally speak of the existence of corporate rights. In legal science, different views are expressed on this issue. Some scholars note that corporate rights can have only members of corporations, and the corporations, in turn, it should be considered only those companies in which the share capital is divided into shares, participants are entitled to part of the company's profits and to participate in its management. Taking into account the specific legal nature of corporate rights, the latter should be considered a special and independent object of civil law, characterized by its own, not inherent in any other object features. Ensuring proper civil circulation of such objects requires amendments to the current legislation, first of all, the recognition of them as the objects of civil rights. Undoubtedly, such changes should be comprehensive and aimed at improving the civil circulation of corporate rights between the parties to civil relations. Based on the above, it is proposed to introduce a legal definition of corporate rights, setting it out as follows: corporate rights are the object of civil law, which is a set of rights of a person whose share is determined in the authorized capital (property) of a business organization, a person in the management of a business organization, receiving a certain share of profits (dividends) of the organization and assets in the event of liquidation of the latter in accordance with the law, as well as other powers provided by law and statutory documents.

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