COMPARATIVE ANALYSIS OF DEVELOPMENT SUPPORT MECHANISMS FOR START-UPS BY BUSINESS INCUBATORS UNDER THE LEGISLATION OF KAZAKHSTAN AND UKRAINE

The article analyzes the Kazakhstan’s and Ukrainian legislation regarding the legal status of a business incubator in the field of entrepreneurship and start-ups support. The article provides for the definitions and main features of business incubators. It has been demonstrated that Kazakhstan’s legislation, unlike Ukrainian legislation, does not differentiate business incubators by type, and a startup company can be organized in any form of a commercial legal entity. The authors prove the necessity of contractual regulation of relations between a business incubator and a start-up. Contractual regulation is necessary due to number of variables of these relations. First, there is a vast variety of types of investments by business incubator at the stage of a prototype, or a business project, which may include money, property, services etc. Second, organizational and legal forms of start-ups may vary. Third, the investments may be done in several modes. One of possible investment modes is entering the charter fund of a legal entity-start-up in order to control and manage it, to participate in the distribution of profit and to obtain first-hand information about the start-up’s activities. Another mode of investing into a start-up is through the contract of loan with suspending condition of purchase of shares of the company. All these variables lead to the necessity of contractual regulation. Moreover, a business incubator, as a subject of these relationships, provides start-ups with premises for rent, provides various kinds of services. This also entails the need to conclude a lease contract and a service contract between the parties. The research demonstrated that, despite the similarity of the reasons for the emergence and development of these mechanisms, their practical application in Ukraine and Kazakhstan is somewhat different. Although the article shows that in both countries business incubators have potential of being an effective support to start-ups, there are still several issues which have to be addressed. Namely, there are concerns about protection of the rights of investors and start-up participants from violations of their intellectual property rights and property interests, such as profit distribution, business interference, the procedure for the election and exit of investors and startup participants and others. Due to these issues the investments to start-ups look risky and lose their attractiveness for investors. Therefore, in the countries in consideration business-incubators cannot exist without significant state support.

TERMINATION OF FINANCIAL LEASE CONTRACT DUE TO DEFECTS OF GOODS: FROM CLAUSULA DE REBUS SIC STANTIBUS TO DOCTRINE OF LINKED CONTRACTS

Translation includes judgements representing solutions adopted in practice of German and Spanish courts as to (typical financial lease contracts) regulation consisting in exemption of lessor from liability to provide compliant goods with the rights under the sales contract assigned to lessee when lessee exercises the right to early terminate the sales contract due to deficiency of goods: what implications for lease contract this triggers? Conscious of contract’s true purpose to finance the purchase, European courts unite in treating financial lease contract as terminated, also being inclined to recognize its retrospective character and, as a result, restitution of all rent payments, including already received by the lessor. However, the courts subject it to different doctrines and differ in legal classification that leads to discrepancies in treatment of particular cases.

Loss given default in SME leasing

Leasing provides a fundamental source of firm funding, especially for small and medium-sized enterprises. A crucial difference from loans and bonds is that the lessor retains ownership rights of the leased asset during the lease term. This facilitates the asset utilization and work-out process and leads to higher liquidation proceeds. Hence, previous findings on the loan and bond loss given default (LGD) are not transferable to the leasing industry. Our analysis is based on a very granular data set covering a great variety of information on the lessee, the leased asset, as well as contractual and transactional characteristics. We examine novel LGD determinants such as an external credit rating, the lessee’s limited liability, and the number of leased assets and collaterals. Moreover, new results on previously explored factors question earlier findings, for example, on the lease contract type. Most importantly, as proposed by Miller and Töws (J Bank Finance 91:189–201, 2018), we analyze two different LGDs, one based on the asset utilization proceeds, the other on repayments. Our results clearly indicate the crucial importance of this separation when analyzing the drivers of the leasing LGD in detail because several determinants affect these LGDs in different ways. Our study assists both lessors and regulators in assessing the effective risk of lease contracts and enables lessors to enhance their risk management and work-out processes.

A CRITICAL ANALYSIS OF THE DECISION OF THE CONSTITUTIONAL COURT* Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC)

The pursuit of access to better economic opportunities such as decent jobs has resulted in an astronomic influx of people into the inner city of Johannesburg, South Africa. As a result there is a high demand for rental housing. This presents an opportunity to make profit for those who leasepremises in order to generate an income. The demand for rental housing has arguably caused the escalation of rental prices, thereby causing a shortage of affordable rental housing in the city centre. The Rental Housing Act 50 of 1999 was enacted to resolve disputes that may arise from any unfair practice or matters affecting the relationship between the landlord and his tenants in respect of the lease contract. In particular, the Rental Housing Act seeks inter alia to “create mechanisms to promote the provision of rental-housing property; promote access to adequate housing through creating mechanisms to ensure the proper functioning of the rental-housing market [and] to lay down general principles governing conflict resolution in the rental-housing sector” (Preamble to the Rental Housing Act). In terms of the Rental Housing Act, the landlord or a tenant may approach the RentalHousing Tribunal and complain about an unfair practice (s 13 of the Rental Housing Act). The Rental Housing Act defines an unfair practice as “a practice unreasonably prejudicing the rights or interests of a tenant or a landlord” (s 1 of the Rental Housing Act). Where the Tribunal, at the conclusion of the hearing, is of the view that an unfair practice exists, it may rule that the exploitative rental be discontinued. The Tribunal may also make a determination about the amount of rental that must be paid by a tenant taking into account inter alia “the need for a realistic return on investment for investors in rental housing”. The argument presented in this case is that the applicants ought to have made up their case in the court of first instance and not at the appellate stage. The paper isdivided into nine sections. Section 2 provides an overview of the facts of the case, section 3 discusses the case before the High Court, section 4 discusses the case before the Supreme Court of Appeal (SCA), section 5 discusses the case in the Constitutional Court, the issues, arguments, before the court, the findings and conclusions of the court. Section 6 evaluates the parties’ submissions in light of the Rental Housing Act, the Constitution, the Gauteng Unfair Practices Regulations, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIEA) (19 of 1998). Section 7 discusses the majority judgment. Section 8 discusses the minority judgment. Section 9 is a critique of both the minority and majority judgments. The conclusion made is that the applicants should stand or fall by the arguments contained in the founding documents.

On the possibility of termination of the lease contract of municipal property in the case of privatization of the lease object

Problem setting. Quite often in the practice of law enforcement there are disagreements as to whether privatization of the leased object may be the reason for the termination of the lease contract of municipal property. Analysis of recent researches and publications. The issue of termination of lease contract of municipal property was studied by legal scholars in different ways. Research in this area was conducted by I. R. Kalaur, Ye. Kozarenko, O. Moroz, I. Spasibo-Fatieieva, V. Steshenko and other scientists. Target of research is determining whether the lease contract of municipal property can be terminated by privatization of the leased object. Article’s main body. A conflict between Part 2 of Art. 770 of the Civil Code of Ukraine and Part 8 of Art. 20 of the current Law of Ukraine “On Lease of State and Municipal Property”, which stipulate that the provision that the lease contract remains in force for the new owner in case of alienation of leased property may be changed by the parties to the contract and the said alienation may be grounds for the termination of the lease, if the parties have agreed on this, on the one hand and Part 4 of Article 18 of the Law of Ukraine “On Privatization of State and Municipal Property”, which establishes the mandatory provision according to which in case of privatization the lease contract remains in force for a new owner, on the other. The author notes that the mentioned rule of the Law of Ukraine “On Privatization of Public and Municipal Property” is special in relation to the rules of the Civil Code of Ukraine and the Law of Ukraine “On Lease of Public and Mubicipal Property”, which are general in relation to the first. Conclusions and prospects for the development. Upon alienation of the subject of the contract in the manner of privatization, the contract of lease of municipal property remains in force for the new owner of the privatized property. At the same time, if the parties have established in the lease of municipal property that the alienation of the leased object is the basis for its termination, such a provision applies in the case of alienation of the object by the owner on grounds other than privatization and in such circumstances, alienation of property by the owner otherwise than privatization is the reason for its termination.

THE IMPACT OF IJARAH/LEASE FINANCING ON MALAYSIAN ISLAMIC BANK PERFORMANCE

Ijarah (lease contract) is one of the essential financing contracts offered by Islamic banking institutions to meet the demand of the clients. This study investigates the impact of Ijarah financing on Islamic bank performance in Malaysia for the period from 2004-2018 using Fixed and Random Effect Models. Ijarah financing (IJFA) which becomes the focus variable of this study with other six independent variables; operating efficiency (EXTA), bank size (LTA), total financing (TFTA), base rate (BR), consumer price index (CPI) and gross domestic product (GDP) were regressed against return on asset (ROA) and net profit margin (NPM). The results show that Ijarah financing has a positive and significant impact on NPM. The findings suggest that Islamic banks should increase their portfolio of Ijarah financing and this is also support the concentration strategy used by banks in improving Islamic bank performances. An increase in demand for Ijarah financing will increase Islamic banks performance and this reflects that Ijarah financing as an asset creation tool that banks prefer particularly for generating income.

Colonii și arenda pământului în Roma antică

"The present paper analyzes the legal situation of the colonists - semi-free people, land cultivators, in the period of ancient Rome, as well as the particularities that the land lease has experienced in relation to the colonist, in the same period of antiquity. We have had as starting point the status of the colonist within the framework of the Roman society along with a brief characterization of them in order to properly understand the reasons for establishing a particular type of relation with the lands and the corresponding owners of them. Hereinafter, we have considered the sources of the lease agreement as well as the outcome/impact of the contract, in particular the rights and obligations of the settlers. The topic that might be labelled as out of interest has been intended to create a general overview in respect of the people and their relationship with the lands in general with focus on the period of ancient Rome. At the same time, the analysis has been directed towards an in-depth study as regards the legal relationship on which the lease contract was based, starting from the perspective of the great professor Vladimir Hanga, who expressed the idea according to which ”every legislation is related to the society from which it comes and on which it depends”. The research method in point of the of the text has been the observation and analysis of documents, the exact identification of the tackled concepts in respect of time and space, but also for an accurate understanding of the legal situation of the colonists - semi-free people who worked the land during ancient Rome."