A Market-Friendly Human Rights Paradigm for Intellectual Property Rights in Europe?

This chapter explains that in the new variants of constitutionalism, human rights are perceived as critical normative counterweights to the extension of market-friendly rights privileging the protection of fiscal policies, the free movement of capital assets across borders, and the interests of investors over democratic processes, communities, and people. From this perspective, the European Convention on Human Rights (ECHR) and EU Charter of Fundamental Rights, which extend the right of property to legal persons, strike a discordant note by comparison with other international human rights instruments. The chapter investigates the origins of this incongruity. It shows that, paradoxically and contrary to the prevailing view, the rationale for the extension in the ECHR was to enable states to counteract the adverse social and economic impact of untrammelled exploitation of property and accumulation of profit. The chapter then examines the jurisprudence of the European Court of Human Rights (ECtHR) through this prism and considers how the Court may recover the normative ideals of human rights law. It also draws out the implications and challenges for the interpretation of IP rights in the EU Charter of Fundamental Rights.

The building financing fund: main problems of ensuring and protection of beneficiary’s rights and interests

The active usage of investment and financing mechanisms in sphere of construction of housing determines the necessity of involving the financial means of individuals and legal entities to such process and comes with risks for investors. At the same time the negative experience associated with frauds in sphere of construction of housing that caused a damage to the persons who had invested in housing within the territory of Ukraine and the intentions of lawmaker to establish the juridical mechanisms of financing of the construction that would neutralize or minimalize appropriate dangers determines the necessity to researched such juridical schemes in context of ensuring and protection of rights and interests of the participants of appropriate relationships. The author determines the advantages and disadvantages of the model of financing of construction of housing through building financing funds. It is defined that the obvious advantages of such model are: the professionalism of trustee; the usage of such ensuring and protective means for beneficiary’s (investor’s) rights and interests as hypothec, insurance of the developer’s risk of break the terms of obligations execution. The ensuring character also has the process of fixation of an investment object for beneficiary. At the same time the author states that it is difficult to justify the “encumbrance” of basic investment model by abovementioned ensuring and protective components. Even within basic investment model the beneficiary’s (investor’s) rights and interests could be ensured by hypothec of proprietary interests rights. Moreover the beneficiary (investor) can use insurance. The main advantage of the mechanism of financing of the construction through the building financing fund is the beneficiaries (investors) possibility to acquire with less organizational costs of a right of property on unfinished building in case when developer breaks his obligations. But at the same time the mechanism of financing of the construction through the fund rises the price of investment objects because of additional expenses. It is defined that despite of the provision of part three of the article 4 of the Law of Ukraine On investment Activity such provision does not neutralize a possibility to use alternative juridical schemes of the investment and financing of housing.

Obligatory Share and Entitled Entities: An Obligatory Share during Testamentary Inheritance

This paper focuses on the results of the research of normative acts and practices regulating the institute of mandatory shares and entities with the right to the mandatory shares. Formation of the correct view on this issue is a precondition for the redistribution of property in accordance with the law of inherited property, both in court and in notarial practices. In turn, the proper redistribution of the inherited property is directly related to the protection of property and inheritance rights. This is why the studied issue does not lose its urgency. The aim of the paper is to correctly define the essence of the mandatory share, as well as the subjects entitled to the mandatory share, to identify the shortcomings in this issue, and to develop recommendations for their perfection. The comparative-legal, logical, and systematic analysis of norms were used to achieve this goal. Problems were analyzed using the examples of Georgian, German, and Swiss law. In defining the mandatory share and the subjects entitled to it, both common features and essential differences were revealed between the named models, This, however, makes it possible to define a more effective model - a number of advantages of the Georgian model were identified - which is reflected in the mechanism of effective exercise of the right to mandatory share without a court. In addition, the study found that the testator’s grandchildren are not eligible entities to receive a mandatory share if their parent died before the testator. The legal norms of inheritance are interpreted in relation to the Constitution. On this basis, the shortcomings of a number of norms for both the Civil Code of Georgia and the Law of Georgia “On Entrepreneurs” and even non- compliance with the Constitution are identified. This is why it is necessary to improve them and create the stable guarantees for the right of property and inheritance.

The Relationship Between the European Convention on Human Rights and Domestic Law: a Case Study

The article is pertaining to the relationship between the European Convention on Human Rights and the Polish national law. Upon the introduction of the system of economic, social and cultural rights contained in the Constitution of the Republic of Poland of 1997, the article considers what rules determine the relationship between the application of the law by Polish courts and the European Court of Human Rights in Strasbourg. The paper concludes by showing how Polish courts and the European Court of Human Rights in Strasbourg refer to the right of property. It’s one of the fundamental human rights, when they examine a case. It occurs that clauses, which limit this right, are sometimes understood in a different way by Polish courts and the European Court of Human Rights. Regarding the above, the case of Waldemar Nowakowski v. Poland of the European Court of Human Rights in Strasbourg is discussed. Furthermore, the article presents how the Polish Government executes the judgment of the European Court of Human Rights in Strasbourg delivered in the above-mentioned case.

Rozgraniczenie statutu rzeczowego i kontraktowego przy poszukiwaniu prawa właściwego do oceny zastrzeżenia prawa własności

Retention of title as a security on tangible assets is well known in many legal systems. It enables to strengthen the position of the seller in such a contract of sale in which the payment of the price is agreed to be done later than the handing over the good. This instrument disturbs the traditional model of sale in two ways. Firstly, the conclusion of the contract is not directly followed — which takes usually place — by the performance of the obligation to transfer the property. Secondly, the right of property receives in that way a new role to play — it becomes a security right, guarantying the pecuniary claim of the seller and ceases the function of the principal right. In order to find the law applicable to the retention of title, its different aspects — contractual and real — should be qualified according to their nature. These aspects should be treated separately and be assessed according to the proper legal system. For example, the law applicable to contractual assets of retention of title defines if such belated transfer of ownership affects any general rights and obligations of parties, such as the right to receive benefits from the asset or to bear costs of its maintenance. On the other hand, the law of actual location of the asset as a law applicable to real aspects of the retention of title defines the nature of the element disturbing the transfer of ownership and the scope of rights of the seller towards charged good as its owner.