scholarly journals Some problems of optionality in the civil law of Russia

2021 ◽  
Vol 7 (3) ◽  
pp. 54-57
Author(s):  
Yuriy N. Andreev

In civil theory, the concept of dispositive legal regulation and its relationship with legal, normative, individual, autonomous, decentralized, self-regulating regulation has not been created. Modern civil scientists are faced with the task of creating a holistic teaching about the content, forms, and means of this unique phenomenon.

Author(s):  
Yuliya Chernenilova

This article describes the periods of development of the legal institution of employment contract in Russia. The characteristic features for each of them are defined. The first period was the longest and was marked by develogment of the contract of personal employment as the origin of the modern institution of employment contract. In the second period, the contract of personal employment represented the institution of civil law, and later became the subject of study of the civil law science. At that time the industrial law of the country was forming. A distinctive feature of the third period was the adoption of codified acts, as well as differentiation in the legal regulation of labor relations of temporary and seasonal workers. The fourth period is characterized by changes in state-legal methods of economic management. With the adoption of the Constitution of the Russian Federation labor legislation was assigned to the joint jurisdiction of the Russian Federation and its subjects. It is concluded that the adoption of the Labor Code of the Russian Federation necessitates a more accurate study of the problems arising in the application of specific rules of law governing the peculiarities of labor of certain categories of workers (for example, labor relations with persons with disabilities are not yet perfect because of the youth of the labor law), conflict of laws issues arising in practice, contradictions that occur in a huge array of legal documents not only in labor law, but also in other branches of law.


Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 163-177

The research shows that one of the legal relations in civil matters is the family relationship, having an extensive content. It includes Family Law and the actual family relationships. While there are factual elements in the family relationships, only marriage registration gives rise to the property and personal rights between spouses since marriage is a legal fact of law. However, it has been stated correctly in the legal literature that the actual co-existence of partners is such a family relationship, in which couples enter into marriage without registration. The inner world of unmarried couples is significantly free from legal regulation. Family relationships, by their characteristics, are inconceivable without the personal and intimate aspects contained in certain factual foundations and found in family relationships.


Author(s):  
Iryna I. Banasevych ◽  
Ruslana M. Heints ◽  
Mariia V. Lohvinova ◽  
Oksana S. Oliinyk

Theoretical and applied research of the features of the legal status of the subjects of civil law remains debatable today. Doctrinal and legislative analysis of this subject points to unresolved issues in this area. In particular, the provision on defining the state as a party to civil law remains controversial. There is no consensus on the definition of individuals and legal entities as subjects of civil law among scholars. Furthermore, the legal regulation of certain types of entities is somewhat unsystematic and chaotic. This is largely due to the insufficient development of theoretical issues related to the subjects of civil law. The above issues determine the relevance of the study of the features of the legal status of subjects of civil law. The purpose of the study is to investigate the features of the legal status of subjects of civil law based on doctrinal and legislative analysis. The study is based on a systematic approach, which lies in studying a complex system of relationships between subjects of civil law. Furthermore, the study is based on the laws and principles of dialectics, which contribute to the study of the legal status of the subjects of civil law. Systemic and structural-functional analysis was used to comprehensively describe the legal status of subjects of civil law. The historical method contributed to the study of the evolution of research on the subjects of civil law. The formal legal method helped identify the special features of the provisions of regulations concerning the subjects of civil law. With the help of the comparative legal method, the study analysed the provisions of the Civil Code of Ukraine in terms of regulation of subjects of civil law and such regulation was compared with other countries. The study defined the concepts and types of subjects of civil law and considered the features of the legal status of individuals, legal entities, as well as the state as a special participant of civil law. Special attention was paid to the historical analysis of the development of approaches to the definition of subjects of law, starting with Roman law


2021 ◽  
Vol 37 (1) ◽  
pp. 75-79
Author(s):  
R.D. Farkhutdinov ◽  

The article suggests and justifies the concept of "commercial transaction" is currently not fixed in civil legislation as a civil definition, while a number of scientists have repeatedly justified the need and importance of fixing such a concept to solve a number of problems in legal regulation. In addition, it offers ways to solve the problem of the conceptual apparatus of the practice of separate consideration of "commercial transactions" in civil law, which allows solving a number of practical problems of law enforcement. The article uses comparative, formal-legal and functional research methods. The article identifies individual features of a commercial transaction, the legal limits of mutual synthesis of public and private interests, and determines the forms of protection of such interests.


2020 ◽  
pp. 47-56
Author(s):  
Oksana KIRIIAK

The article contextualizes and assesses the peculiarities of using the mechanism of civil law reimbursement of medical expenses in the context of the global spread of acute respiratory infection COVID-19 caused by coronavirus SARS-CoV-2, as well as the theoretical possibility of such coverage of financial costs and revenues through the enforcement of reimbursement contracts, by analogy with the currently widespread state program «Affordable Medicines of Ukraine». The author analyses the achievements of many domestic and foreign researchers who have covered various aspects of reimbursement in their writings, including the extrapolation algorithms of such traditional institutions of civil law as the fulfilment of obligations for the third parties, compensation, etc. For the completeness of the scientific search, the article also contains an analysis of statistical indicators of the effectiveness of reimbursement contracts in our country, based on information from open official sources of the National Health Service of Ukraine. As a result of the comparison, the author concluded that the well-thought-out organization of high-quality medical care, followed by reimbursement of the full or partial cost of services received or medicines purchased under reimbursement agreements allows to comprehensively and effectively solve most problems in this area in such a way as to protect the interests of patients, doctors, and pharmaceutical companies as the key participants in such legal relations. It is also emphasized that the system of legal regulation and medical provision of access to medicines and procedures in most developed countries is considered as an integral part of public administration, the need to improve which is always an urgent challenge for every law enforcement, especially in the context of the global spread of acute respiratory infection COVID-19 caused by the coronavirus SARS-CoV-2. Particular attention is paid to the fact that the well-thought-out organization of quality medical care, followed by reimbursement of the full or partial cost of services received or drugs purchased in the context of reimbursement agreements allows comprehensive and effective solutions to most problems in this area to protect the interests of patients, doctors and pharmaceutical companies as key participants in such legal relations.


Author(s):  
Anatoliy Babaskin

Іintroduction. Despite the fact that a significant number of scientific publications by well-known Ukrainian authors are devoted to the issues of legal regulation of credit obligations, at the same time separate studies of banking legislation requirements on "acceptability of collateral" have not been conducted in Ukrainian civil science in recent years. This, taking into account the gradual alignment of banking legislation of Ukraine with the standards of Basel III, and Directive 2002/47 / EC of the European Parliament and of the Council of 6 June 2002 on financial collateral mechanisms, necessitates such scientific research. The aim of the article. On the basis of the analysis of the legislation of Ukraine, the legislation of the European Union, scientific advances in the sphere of civil law and banking legislation, in the context of the analysis of the banking legislation of Ukraine, it is safe for creditors. In order to achieve this goal: 1. Conduct an analysis of civil and legal species for the protection of crops for the subject of іх possible delivery to “acceptable safety” and vrahuvannya banks when opening a credit card. 2. Significantly "quasi-security", as viewed by the banking legislation in the form of "acceptable security" for credit cards. 3. Zdіysniti analysis of the approaches to the legislation of the EU in the field of protection from credit denominations. Results. The methodological basis of the study is general scientific and special legal methods of scientific knowledge. In particular, the dialectical method, the method of analysis and synthesis, the comparative law method, the functional method, the modeling method, etc. Conclusions. First, the banking legislation does not consider as "acceptable collateral" such types of collateral as penalty, surety, deposit, retention. Secondly, the banking legislation considers as "acceptable collateral" not only those specified in Part 1 of Art. 546 of the Civil Code of Ukraine types of security for performance of obligations (pledge, right of trust ownership, guarantee), and other types of security for performance of obligations provided by law or contract (reserve letter of credit, performing the function of financial guarantee, guarantees of public entities, guarantee payment), but also contractual constructions which do not concern types of maintenance of performance of obligations (repo agreements). Thus, the banking legislation considers collateral in credit operations from the economic point of view, according to which "acceptable collateral" is only such liquid collateral that guarantees the rapid recovery of the property of the creditor bank, which suffered damage due to default or improper performance of the counterparty loan obligation, as well as "quasi-collateral", if such is referred by banking legislation to "acceptable collateral". Third, the existence of rules in the banking legislation on the acceptability of collateral in no way affects the right of banks to use any type of collateral provided by law or contract, if the application of such is possible in credit relations, taking into account the legal nature of the relevant types. software. Fourth, the set of regulations of the National Bank of Ukraine on the acceptability of collateral can be considered as an institution of banking law, which includes as rules of civil law governing the types of collateral, other rules of contract law governing other "quasi-collateral" contractual constructions, as well as public-law special norms of banking legislation, which establish additional regulatory requirements for banks to ensure credit operations and calculate credit risk.


Author(s):  
A. A. Suslov

The paper provides systematization of inadmissible refusals in civil law enshrined in civil legislation and clarification of court practice. The author analyzes the reasons for fixing the inadmissibility of refusal through civil law cases, which include situations of protection of the weaker party in civil law relations. A specific characteristic of inadmissible refusals according to the way of their expression is proposed: with the presence or absence of legal consequences of inadmissible refusals. The “doctrine of the nullity of refusal” prevailing in modern Russian science and court practice is criticized as contradicting the fundamental principles of civil law (in particular, the principles of freedom of contract, inadmissibility of arbitrary interference in private affairs, etc.) and generally acceptable type of legal regulation peculiar to civil law. Some ways to overcome it are proposed. It is concluded that the resolution of the issue of recognizing a refusal as valid or invalid should be based on the correct qualification of the relevant norms, which fix certain legal opportunities for participants in civil law relations as imperative or dispositive.


2020 ◽  
pp. 26-30
Author(s):  
А.S. Salimov ◽  
S.V. Voronina

The bankruptcy estate of the debtor spouse is all property belonging to him both on the basis ofindividual and joint ownership, including unfulfilled property obligations. The composition of the propertyof spouses is determined by the rules of family law, taking into account the legal regulation of certain typesof property, which requires special attention when forming the bankruptcy estate of the debtor spouse. Thebankruptcy estate may include the property of a citizen, making up his share in the total property, which maybe levied in accordance with civil law, family law. Family relations are built on the principle of community,which affects the implementation of bankruptcy law. To foreclose on the share of the debtor spouse, it isnecessary to separate the share of the debtor spouse from the common property, while the bankruptcy lawallows the sale of common property with the subsequent payment of funds to the debtor’s spouse.


2020 ◽  
pp. 226-233
Author(s):  
Dmytro SHUTIAK

The article explores the features of civil law regulation of customs mediation under the legislation of Ukraine and the EU. The author identifies the characteristics that distinguish customs mediation from similar institutions in other areas of management. The author substantiates the position that the legal relationship established between customs authorities and participants of foreign economic activity with the participation of a third party is a type of economic binding legal relationship, i.e. the legal relationship for the provision of intermediary services. Within the framework of customs legal relations, contracts of a civil law nature are considered as a specific way of the state's influence on this sphere of public relations. With the participation of customs intermediaries, certain economic and legal relations are established between customs authorities and participants in foreign economic activity. The content of customs intermediary activities should be determined through the provision of services mediated by civil law agreements, representing the interests of foreign economic activity in relations with customs authorities, the provision of customs and related services, the implementation of legally significant actions aimed at customs procedures. The analysis of EU legislation in the study area led the author to conclude that at the EU level not only general qualification requirements for customs intermediaries are set, but also principles, values and rules of conduct that encourage customs intermediaries to achieve high standards of professional ethics and proper implementation their responsibilities. Given the specifics of customs mediation in the EU, the author concludes that at EU level it is impossible to unify the standards of customs services, so to date access to the profession of customs agent in each entity, the Member State is subject to national jurisdiction with its requirements for candidates to the level of their skills and knowledge. The author emphasizes that at the national level it is advisable to integrate certain elements of the legal regulation of customs brokerage to ensure competitiveness, provide quality services and overcome gaps in legislation.


2019 ◽  
pp. 72-80
Author(s):  
Avak Vartanian

The article analyzes the novels of the legislation of the Republic of Belarus concerning the procedure for using gift certificates when selling goods (performance of works, rendering services). It has been done a comparative analysis of the legal regulation of the procedure for circulation of gift certificates in the Republic of Belarus, Ukraine and some foreign countries (Canada, the USA). The author raises some problems concerning the use of a gift certificate in civil circulation. It is pointed out that there is uncertainty both in the theory of civil law and at the level of legislative regulation regarding the civil law nature of a gift certificate. It is noted that the analysis of the legislation in force in the Republic of Belarus allows us to define a gift certificate as a document certifying the property right (requirement) of its holder (bearer) to receive goods (works, services), and the amount of money contributed when purchasing a gift certificate, as advance payment (advance payment). At the same time, such an approach of the legislator is criticized due to the fact that there is a clear contradiction to the requirements of Art. 402 of the Civil Code of the Republic of Belarus, from the content of which it follows that the advance payment presupposes the existence of a contract in which the subject has been agreed, which is not typical of most gift certificates, due to the fact that they do not contain an indication of the subject of the contract. Having done the analysis of the civil legislation of Ukraine, the author makes a conclusion that there is application of the rules on a purchase agreement to gift certificates, the subject of which may be property rights in accordance with the Civil Code of Ukraine. The conclusion is made about the imperfection of the legal regulation of the procedure for circulation of gift certificates in the Republic of Belarus and Ukraine, as well as about the complex legal nature of the gift certificate, regarding which legal regulation should be more universal, defining a gift certificate as an independent object of civil legal relationship.


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