The Concept Of Unfair Contract Terms

The article explores the concept of «unfair terms contract terms» through the analysis of its origin and fixing in the legislation and legal literature of the European Union, Ukraine and the United States. Comparisons of interpretations of this concept according to Directive 93/13/EEC, Model Rules of European Private Law, The Uniform Commercial Code, as well as the Law of Ukraine «On Consumer Protection». In the article author notes that the definition of unfair terms of the contract is a complex symbiosis of material and procedural, a combination of justice and dishonesty, comparison of signs of «imbalance of interests» and «significantly disadvantaged» and therefore at this stage of civil law is not can be defined unambiguously. It is investigated that the modern civil legislation of Ukraine is still in solidarity with the legislation of most EU member states in terms of introducing this concept primarily to protect consumer rights. Regarding the definition of «unfair terms», author notes that Ukrainian legislation follows common legal trends and recognizes unfair terms when they violate the principle of good faith and fairness, as well as when they lead to a significant imbalance of contractual rights and obligations of the parties and harm the consumer. As a result, it was found that in general the concept of «unfair terms» is evaluative and can not by its very nature reflect the motives laid down in the contract by one or another party. The Court of EU and the courts of the EU member states do not give general conclusions on a case-by-case basis, using the definitions contained in the text of Directive 93/13/EEC, which set out the conditions that may be considered unfair. Author proposes to use the sign «significantly unfavorable position» proposed by A.A.Leff to define the concept of «unfair terms of the contract», as it will improve the protection of the interests of the economically weaker party in the contract.

Еffectiveness Of Protection The Rights Of The Parties Of Lease Agreement

The paper deals with the concept of measures to protect the rights of the parties of lease agreement. It is stated that in case of violation, non-recognition or challenge of the rights of lease agreement, the person against whom the illegal act was committed has the right to defend his rights independently or seek protection from one of the authorized bodies. It is emphasized that protection consists of measures of various nature. The author proved that the effectiveness of protection depends on the correctly chosen method of protection and proof of the circumstances to which the person points. It is proved that it is important to set the right goal of personal protection and choose measures aimed at achieving this goal. These arguments are confirmed by judicial practice and scientific doctrine. It is argued that non-jurisdictional safety methods, in particular self-defense, measures of operational influence, may be applied if they are provided or prohibited by law and are sufficient. Also jurisdictional safety methods must be applied when enforcement is required, or safety methods must be applied only by an authorized body. Based on the analysis of judicial practice, the criteria for the effectiveness of safety methods are established and the limits of application of safety methods are determined. Measures of judicial protection of the rights of the parties of the lease agreement has been studied. It is concluded that the limits of application of the method of protection are reflected in the legality, objectivity of application, depend on the existence of appropriate grounds and conditions, the nature of the violation, non-recognition, challenge.

Domestic And American Model Of Sanctions For Criminal Violations In The Economic Field: Critical Approach By A Comparativist

The article critically reviews the models of criminal sanctions introduced in Ukraine and the United States for economic criminal offenses. It is emphasized that the meaning of the concept of punishment is inextricably linked to the fundamental category of criminal liability, which means the restrictions provided by criminal law for the exercise of the rights and freedoms of a person for committing a criminal offense. It has been noted that most American courts do not practice “linear” philosophy in terms of sentencing, but on the contrary, take the whole set of unique facts and circumstances with legal significance into account in each criminal case. It has been established that this approach partially resembles the content of paragraph 3, part 1 of Art. 65 of the Criminal Code of Ukraine: the court imposes punishment, taking into account severity of the crime, identity of the perpetrator as well as mitigating and aggravating circumstances. It has been also established that in comparison with the American domestic practice of sentencing in general and for economic crimes in particular seems unreasonably humane, such that it is not able to fully implement the purpose of punishment, declared in Art. 50 of the Criminal Code, and therefore, such as objectively unable to restrain the manifestations of illegal behavior in the economic sphere. The large- scale humanization of criminal liability for economic encroachments carried out by the Ukrainian legislator at the end of 2011, combined with the decriminalization of certain acts and the replacement of imprisonment with fines in sanctions of other norms, has intensified such negative trend. Third, the analysis of the content and application of the federal Penal Code demonstrates not only the advantages of this act of the federal criminal law, but also its individual shortcomings. There is a lot of criticism against this document’s provisions in terms of sentencing for economic crimes. The main reason for criticism is the purely arithmetic relationship between the amount of punishment and the amount of material damage caused by such a crime. Based on the results of elaboration of the American experience in terms of normative provision and practice of application of punishments for economic crimes, a position has been expressed on the expediency of introducing a model of limited formalization of punishments in Ukraine.

Theoretical aspects of distinguishing the concepts of «scientific and technical information» and «information resource»

Scientific and technical information is a complex object that may under certain conditions fall under the legal regulation of information, civil law, including copyright and patent law. The author examines the manifestations of scientific and technical information as an object of civil rights in particular. The concept of scientific and technical information and its specific features are defined. The article states that as an object of civil law, scientific and technical information can be interpreted as a personal intangible asset, as well as an informational scientific and technical product or informational scientific and technical resource. To qualitatively distinguish these concepts, their definitions and basic identifying features are given. The article states that despite the delimitation of these concepts, they are closely interrelated and often interdependent. It is noted that the information product and information resource are not identical concepts, although as an object of civil rights have a similar legal nature and characteristics. The author consider, that scientific and technical information as a good has no value and cannot be the subject of property relations. The product-subject (thing) circulates in the information market and has a value in the form of an information product or resource, is characterized by individually defined features of the thing and is the subject of transactions. It is determined that scientific and technical information and scientific and technical information product or resource - categories are not identical in content, because: 1) scientific and technical information is good; scientific and technical information product (resource) - a thing; rights on scientific and technical information, if it contains indications about the object of intellectual property rights, - regulated by the subinstitution of exclusive rights; rights from a scientific and technical information product or scientific and technical information resource - the institute of property law.

The Concept Of Solidarity As A Factor In The Realization Of Human And Civil Rights And Freedoms In Ukraine

The article is devoted to the study of the role and significance of guarantees of individual rights and freedoms in Ukraine. The author defines that they are important factors in the economic, political, legal, cultural and other spheres of society that create conditions for the real possibility of exercising the rights and freedoms of the individual. The concept of solidarity excludes the idea of class struggle, the revolutionary path of development of society. According to this concept, the focus is on the social nature of the state: socio-economic, cultural, environmental rights of citizens are ensured with the participation of the state, which pursues an active socio-economic policy aimed at redistribution of funds for the most vulnerable, employment, social insurance, development affordable education, health care, etc. Guarantees for the realization of human and civil rights, freedoms and responsibilities can be described as a system of conditions and means that together ensure the exercise of constitutional human and civil rights, freedoms and responsibilities. The effectiveness of this system depends on various factors, but the main among them is the presence of certain elements in the system of government. These include: a) the existence of the Basic Law, the effect of which cannot be terminated arbitrarily; b) the definition of state power derived from the power of the people and the Constitution; c) consolidation at the constitutional level of fundamental rights, freedoms and responsibilities of man and citizen and the means and conditions of their exercise; d) the existence of an independent judiciary; e) the opportunity to protect their rights with the Commissioner for Human Rights of the Verkhovna Rada of Ukraine and in international human rights organizations. It is also proposed to solve certain issues of realization of human rights and freedoms in Ukraine through the implementation of the concept of solidarity - the principle of building a social system in which its members (citizens, families, ethnic groups, religious denominations, social groups, political parties, business corporations, etc.) have a real legal and socio-political subjectivity , on the basis of which their rights, opportunities and interests can be consolidated and solidified in order to achieve consensus goals (common good) in social frameworks of different scales (local, national, global).

The Concept And Legal Nature Of Amendments To The Contract

The article examines the concept and legal nature of amendments to the contract. It is established that this legal phenomenon due to the rapid development of market relations is becoming widespread. The meaning of the concept of «change» and its legal nature are analyzed. An exhaustive list of possible options for exercising the right to amend the contract has been made. According to the results of scientific research of different points of view of civilians of different epochs on the concept of «change of contract terms», the own definition of the mentioned concept is formulated and it is proposed to make appropriate changes to the current Civil Code of Ukraine. After all, the perfect legislative regulation of certain relations begins with the consolidation of their definition, in order to have a common understanding of the concept. In our opinion, the lack of a legislative definition of the term “change of contract terms” is a negative phenomenon, as it leads to unequal understanding of the concept by parties, substitution of concepts, violation of the rights of parties, different case law, which is based on the results of consideration of the category of cases related to amendments to the contract. Therefore, we believe that the CC of Ukraine should be amended by including Article 650 1 «The concept of changing the terms of the contract», by which we mean the process, active behavior of the party (parties), which aims to create new or edit existing terms of the contract to bring it in accordance with certain life circumstances, legal norms, as well as its optimization, the purpose of which is to obtain by the party (parties) a certain positive result of property and / or non-property nature. The implementation of these changes will make it possible to avoid the above-mentioned negative consequences in the future and will ensure the introduction of uniform case law in resolving disputes related to amendments to the contract.

Possibilities Usage Blockchain Technology For Protect Intellectual Property Rights In Ukraine

In the article the author explores the prospects of using blockchain technologies to protect intellectual property rights. The purpose of this study is to identify the main advantages of this technology, analysis of foreign legislation and proposals for improving existing legislation. The analysis of activity of operating services on the basis of blockchain technology WIPO Proof, Blinded, Ascribe and practice of their application is carried out. Promising areas of use of blockchain technology in the field of intellectual property should be: ensuring the automatic storage of data of applications for intellectual property rights; opportunity to confirm intellectual property rights; separations of access rights to the object of intellectual property rights. Ensuring automatic storage of data of applicants for intellectual property rights. Services based on blockchain technology allow you to securely store user data. The reliability and completeness of the data rests with the user of the services. Ability to confirm intellectual property rights. Analyzing advantages and disadvantages of blochchain technology, it should be noted that this technology will have a positive result in Ukraine, namely build on the basic technology of blockchain register of intellectual property rights. By analogy with the State Land Cadastral to blockchain technology. Separation of access right to the object of intellectual property rights. The advantage of this service is the ability to enter into smart contracts, which are confidential because they are stored in encrypted form, reduces time and money. The parties can be sure that the terms of the agreement will be met, and no one will change them. In conclusion, blockchain technology has significant prospects and provides an opportunity to qualitatively transform the field of intellectual property in the direction of providing reliable evidence of authorship, facilitating content control and user rights management.

Internetional Experience Of Legal Regulation Of The Status Of Non-Entrepreneurial Legal Entities

The article deals with studying the legislation of individual countries on the legal status of non-entrepreneurial legal entities. It is stated that in international practice there is no single term that would describe all non-entrepreneurial legal entities. Typically, several terms are used, such as non-for-profit orgnisation, non­governmental organization, charity organization, private voluntary organization, civil social organization. In the scientific work authors analyzed the documents that are common to the whole European community and individual countries. The main features of non­entrepreneurial legal entities according to European standards are outlined. Among them: the main goal can not be making a profit, and in the case of making a profit it is aimed at achieving the goals for which the organization was created, non­entrepreneurial legal entities with legal personality acquire the same rights as other legal entities, the possibility of creating member organizations and organizations without membership. It is noted that the division of non-entrepreneurial legal entities on the basis of the system is the fundamental in Poland. That is why non­entrepreneurial legal entities in Poland are divided into companies and foundations. German law provides the creation of not only companies and foundations, but also associations that may not be intended for business purposes. The scientific work studies not only the provisions of legislative acts, but also the scientific developments of domestic and foreign scientists. In particular, doctrinal approaches to non-entrepreneurial legal entities in Germany, Japan, England and Wales were studied. It is concluded that it is not possible to accept the legal model of a non­entrepreneurial legal entity of a certain country and introduce it into national legislation, because each country has its own peculiarities.

Subjects That Shape Public Policy In The Sphere Of Circulation Of Medical Means

Implementation of an effective policy in the field of medical means circulation at the present stage of the development of Ukrainian society is one of the defining conditions for its further democratic reform, strengthening in the country of the institutions of the rule of law, competitive market economy, ensuring the implementation of human and citizen rights and freedoms. Any policy becomes understandable when it is understood who carries out it and what it is aimed at, i.e. defined subjects and objects of policy in society at one or another stage of historical development. This definition makes it possible to clarify the essence of political relations between subjects, as well as between subjects and objects of policy, to reveal the forms of their political behavior, methods of political activity, means of transformation of the political environment. The article highlights the issues concerning subjects that form the general state policy in the field of circulation of medicines. Their analysis is carried out and their main functions and tasks are determined. The state policy in the sphere of circulation of medicinal products is formed and implemented by the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine, the Ministry of Economic Development and Trade of Ukraine, the Ministry of Health of Ukraine, the State Service of Ukraine for Medicinal Products, professional associations of pharmaceutical workers, within the powers of which is the adoption of different types of normative legal acts (concepts, programs, provisions, procedures, rules, standards, instructions, instructions, licensing conditions, lists, codes, etc.), agreed with European and international legislation, as well as, if necessary, with other central bodies of executive power. Such standards follow, in addition to general normative legal acts, also from specialized acts on the formation of such policy.

The Subject Of A Land Lease Agreement In Conjunction With A Water Facility Located On It

The publication is devoted to the study of legal and doctrinal trends in solving the issue of the subject of a land lease agreement in complex with a water object located on it. The author makes a reservation that the difficulty of clearly defining the subject of the studied treaty is due not only to the absence in the civil doctrine of a unanimous approach to understanding the essence of the subject of the treaty, but also to the natural inseparability of the water body with the land located on it. In the article, the author found that the legislative modelling of the contract, which mediates modern relations of use of the water body, was preceded by scientific studies of the features of ownership and use of this natural resource in conjunction with the land on which it is located. The author established the practical and doctrinal significance of using one contractual design for the lease of a water body and a land plot located under it. Such a legislative approach positively solves the problematic issues of the moment of acquisition of the right to lease a water object and the moment of transfer of the use object to the tenant, since the legislator connects these points with the time of state registration of the right to lease a land plot. The doctrinal effect of the application of this treaty model is manifested in the possibility of defining this contract in the system of civil law contracts, and affects the scope of application of civil, land and water legislation to the lease relations of a water body. In the publication, the author established that both natural resources - a land plot and a water object, together constitute the subject of a land lease agreement in conjunction with a water object located on it, formally correspond to the qualifying criteria of the thing as the subject of a hire (lease) agreement. The author concludes that the name of the contract model, simultaneously with the time of occurrence of the right to lease a land plot and a water object located on it, and the mandatory inclusion of a water body passport in such an agreement, make it possible to conclude that in the lease agreement of a land plot in complex with the water object located on it, it is not necessary to indicate technical data (volume and area) of the water body, since they are presented in its passport.