scholarly journals Legal nature of debt restructuring in a bankruptcy case of a citizen: articulation of the problem

2020 ◽  
pp. 68-80
Author(s):  
Kirill Katkov
Keyword(s):  
Civil Law ◽  
Case Law ◽  
Court Order ◽  
Personal Bankruptcy ◽  
Debt Restructuring ◽  
Legal Nature ◽  
Personal A ◽  
The Subject ◽  
Russian Law ◽  
Definition Of

The subject of this research is articulation of the problem of legal qualification of a new institution of Russian law – debt restructuring in a personal bankruptcy case. The author sets a goal to determine the scope of problems emerging in examination of a question of legal nature of the debt restructuring plan, and proposes ways of their possible solution. The research covers question such as correlation between the restructuring plan and other categories of the institution of personal insolvency, presence of elements of a deal in the restructuring plan, essence of debt restructuring, as well as court’s role in personal debt restructuring. The empirical base of this research includes materials from case law of both, lower and higher courts. The scientific novelty of this work consists in the approach towards definition of the essence of restructuring plan that is principally different from other versions in literature, namely the qualification of the restructuring plan as a legal claim, rather than a civil law deal. The author advances a concept, according to which the obligations on debt restructuring stem from a court order, rendered in response to demands of parties (or party) in a personal a bankruptcy case expressed by presentation of restructuring plan to the court. Based on this concept, legal practitioners intending to argue a restructuring plan, are recommended to file an appeal for court order on confirmation of restructuring plan, or with a motion on its annulment by the court, rather than with a request to find the restructuring plan an invalid deal.

scholarly journals Concepts And Features Of The Corporate Contract

2019 ◽  
pp. 121-134
Author(s):  
R.S. Lukashov
Keyword(s):  
Civil Law ◽  
Limited Liability ◽  
Limited Liability Company ◽  
Key Factors ◽  
Legal Entity ◽  
Legal Nature ◽  
The Subject ◽  
Definition Of ◽  
Contractual Structures

The article is devoted to the theoretical and legal analyses of the place of a corporate agreement in the system of civil contracts. The article identifies the key factors that justify a separate place of the corporate agreement among existing contractual structures of civil law. The article deals with scientific views on the concept and legal nature of the corporate agreement, outlines the subject of the corporate agreement, which is concluded between the participants of the legal entity of corporate type, as well as analyzed the latest legislation on the definition of the concept, subject and content of the corporate agreement, which is concluded between the members of the limited liability company.  

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 The concept and legal nature of corporate relations: the position of doctrine and judicial practice

2020 ◽  
pp. 290-295
Author(s):  
Borys Soloviov
Keyword(s):  
Civil Law ◽  
Legal Protection ◽  
Critical Issue ◽  
Association Agreement ◽  
Corporate Rights ◽  
Judicial Practice ◽  
Legal Nature ◽  
Critical Problems ◽  
The Subject ◽  
Definition Of

Nowadays the processes of democratization, liberalization, integration of Ukraine into European and world space take place. Theundisputed significance for these processes is the signing of the Association Agreement between Ukraine and the European Union.Thus, the rapprochement of Ukraine with the European community, which has taken place in recent years, affects the sphere of privatelaw relations, which make up the subject matter of civil law. Taking all mentioned above into account corporate relations and its nationalregulation is critical issue for analysis.The provisions of national legislation regarding the definition of corporate rights and respective legal relations are analyzed. Specialattention is paid to the position of the civil law doctrine representatives in terms of legal nature and features of corporate legal relations.Analysis of current doctrine gives ground to state that corporate relations are considered to be a special type of civil legal relationsthat make up the subject of civil law. At the same time recognition of corporate relations as a type of civil ones makes it possible to useall the civil law tools and mechanism of legal protection and enforcement for corporate relations regulation.The relevant practice of the highest judicial bodies of Ukraine is analyzed. The analysis of the legislation and judicial practicehas given an opportunity to stress some problems that need to be eliminated. To our mind, one of the main problems is “fragmentation”of the legislator’s attention to the definition of corporate legal relations, which creates the ground for numerous discussions. At the sametime there are critical problems in judicial practice. For instance, we cannot agree with the Supreme Court’s attempts to find corporatelegal relations in those types of legal entities in which such legal relations do not take place at all.It is crucial to stress that recodification of civil legislation in Ukraine has its direct impact on private legal relations system andits mechanism of legal regulations.

scholarly journals Civil contracts in the area of air transportation: concept, characteristics, classification

2020 ◽  
pp. 35-60
Author(s):  
Natalia Vasilyevna Markevich
Keyword(s):  
Civil Law ◽  
Regulatory System ◽  
Air Transportation ◽  
Case Law ◽  
Legal Regulation ◽  
Air Cargo ◽  
Legal Nature ◽  
The Subject ◽  
Application Classification

The subject of this research is the concept, characteristics and interrelation of contracts in the area of air transportation. The article is dedication to understanding of legal nature and key elements of air contracts, specificity of their theoretical and practical application, classification; as well as aimed at creation of integral concept of regulatory system. Such understanding is acquired from a broad context of civil law literature and case law. Reference to the provisions of civil law doctrine allowed presenting an original view upon the subject matter, and propose recommendations on the improvement of aviation legislation. The main conclusion consists in the fact that civil law regulation of contracts in the area of air transportation is characterized by the existence of special contracts with peculiar features, which define the content of aviation legislation. With regards to each contractual construct, there emerge various question not only from the perspective of legal regulation and law enforcement (overbooking in the contract of air transportation of passengers), but also scientific approaches toward determination of the concept and nature of a particular contract (qualification of the shipping agreement as a bilateral or multilateral, legal nature of the shipping agreement for air cargo). The absence of universal understanding and interpretation of concept, contradiction of legislation, existence of legal gaps do not contribute to uniformity of aviation legislation, making it complicated for studying and application. The author also reviewed draft laws on regulation of air transportation and separate clauses thereof. Presented analysis reflects only few problematic aspects in the area of air transportation. The acquired results can be used in theoretical legal research, as well as legislative and practical activities.

scholarly journals Emergence of the category of “accessority” and historical peculiarities of its reception in Russian civil law

2021 ◽  
pp. 1-15
Author(s):  
Igor' Olegovich Nadtochii ◽  
Roman Petrovich Trukhan
Keyword(s):  
Civil Law ◽  
Roman Law ◽  
Soviet Period ◽  
Legal Doctrine ◽  
Legal Relationship ◽  
Long Time ◽  
The Subject ◽  
Russian Law ◽  
Civil Science ◽  
Definition Of

The subject of the article is the examination of evolution of the institution of accessory obligations and its gradual “infiltration” into Russian law. The author reviews the genesis of the category of “accessority” in Roman law, within the framework of which its initial formula “the validity of the accessory legal relationship is predetermined by the validity of the basic legal relationship" gained widespread. Description is given to the peculiarities of evolution of accessority in Russian law. In civil law of pre-revolutionary Russia, accessority was being neglected for a long time. In the Soviet period, the identification of the terms “security obligation” and “accessory obligation” established in civil science. Currently, in Russian law, the concept of “accessority” is identified with the security obligation. The conclusion is made on versatility of the category of “accessority”. In the course of the development of law, the concept of accessory obligations undergone significant changes – from perception of accessority as a certain obligation that ensures the repayment of debt and the transfer of “belonging” to the sold goods towards its identification with security obligations as a whole. With time, the opinion that accessority is attributed to different types of obligations with own features and specifics, has established in the legal doctrine. The relevance of the selected topic is defined by a range of problematic questions, which have not been previously covered in Russian civil science. Thus, the legislation of the Russian Federation does not contain a legal definition of the concept of accessory obligations. The civil law doctrine also does not have a unanimity of opinion on the matter. The authors assume that the established situation, namely in the context of the civil legislation that has been fundamentally reformed in 2012 – 2015, does not contribute to unified understanding of the essence of accessory obligations and optimization of their doctrinal interpretation.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

The Concept of Land Real Estate in the Act on Real Estate Management

2020 ◽  
Vol 2(22) ◽  
pp. 37-46
Author(s):  
Michał Kiedrzynek
Keyword(s):  
Real Estate ◽  
Civil Law ◽  
The Real ◽  
The Real Estate ◽  
The Subject ◽  
Estate Management ◽  
Definition Of ◽  
Real Estate Management

The management of public real estate has been regulated in many legal acts, among which the Act of August 21, 1997 on real estate management plays the greatest role. The definitions contained in it are intended to explain the most important concepts related to the subject of this act. However, with regard to the definition of land real estate, we are dealing with a repetition of what was defined by the provisions of civil law. Such a situation raises justified interpretation doubts, which may have significant consequences in the application of this act. The existence of two definitions for the same object is undesirable and the Real Estate Management Act should be amended in this respect by including an appropriate reference to the provisions of civil law.

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).

Tendencies of Development of Legal Regulation Emission and Turnover Bonds in the Legislation of Poland

10.12737/397 ◽  
2013 ◽  
Vol 1 (1) ◽  
pp. 0-0
Author(s):  
Андрей Богустов ◽  
Andrei Bogustov
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
Civil Law ◽  
Legal Regulation ◽  
Securities Market ◽  
Concept Definition ◽  
Current Trends ◽  
The Subject ◽  
Definition Of ◽  
Debt Holders

The subject of research is the notion and the features of a bond as a subject of the Polish civil law. The aim of research is the exposure of the current trends of legal regulation of bond issue and handling on example of the legislation of Poland. The methodological basis of the research contains the comparative law approach. In the course of investigation the author has come to the conclusion that the legislation of Poland governing the issue and handling of bonds reflects a number of current trends of the development of civil law as following: the differentiation of legal regulation of the securities market, the unacceptance of the universal concept definition of the term «security», the dematerialization of the securities, the approximation of the legal status of a share and a bond, the enhancement of the measures of the corporation’s shareholders and debt holders protection, the approximation and mutual loanword of the common and continental law countries legislation, the extention of the frame of reference of legal civil rights represented with securities.

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