Judicially Established Obligation for Alimony and Claim Under Article 439, Paragraph 2 of the Bulgarian Code of Civil Procedure

De Jure ◽  
2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Ivaylo Donev ◽  
Keyword(s):  
Civil Procedure ◽  
Parental Rights ◽  
Legal Obligation ◽  
Legal Relationship ◽  
Bona Fide

This article considers the practical aspects of the protection and establishment of the fulfillment of the court-established legal obligation for maintenance by the parent who has not been granted the exercise of parental rights and has been sentenced to pay maintenance by virtue of a court act. The elements of the legal relationship, which arises in the judicially established obligation for maintenance and the possibilities of the obliged party to protect the lawfully executed bona fide execution outside the court act, assigning him the manner of execution through the declaratory action under Article 439, Paragraph 2 of the Bulgarian Code of Civil Procedure.

Constitutional Principles of Contractual Representation in Ukraine: Problems of Theory and Practice

2019 ◽  
Vol 10 (3) ◽  
pp. 948
Author(s):  
Vadym TSIURA ◽  
Susanna SULEIMANOVA ◽  
Oleksandr SOTULA ◽  
Vita PANASIUK ◽  
Volodymyra DOBROVOLSKA
Keyword(s):  
Civil Procedure ◽  
Civil Code ◽  
Theory And Practice ◽  
Legal Doctrine ◽  
Legal Method ◽  
Current State ◽  
Legal Relationship ◽  
Procedure Code ◽  
The Will ◽  
Theory Of Law

The research is devoted to the issue of the nature and essence of the contractual representation as a legal relationship and a constitutional principle.The current understanding of the institution of representation in the context of the provisions of the Code of Civil Procedure of Ukraine and the Civil Code of Ukraine is ambiguous and this problem needs to be solved. In order to determine the true meaning of the legal institute of representation, the authors of the article made an attempt to study it through the lens of the norms of the current constitution of Ukraine.The methods of scientific research, used by the authors are the analysis, the synthesis, the deduction and induction,the comparison-legal method. All these methods in their convergence made it possible to find out the current state of the existing legislation and legal doctrine in the context of contractual representation and to offer the authors’ own vision of directions of improvement of the studied legal institute.In the result of the study the authors made a conclusion that a contractual representation is a kind of representation, arising out of a contract or other act that underlies the will of the person represented (the principal) and the person representing (the attorney) and the agreement between them. It is important for both the practice of law and the theory of law that the understanding of the essence of the said institute and the approaches to regulating relations of representation in the Civil Code and in the Civil Procedure Code be the same.  

scholarly journals The civil procedure principles as the essential basis for undisputed enforcement of obligations

2018 ◽  
Vol 51 ◽  
pp. 01011
Author(s):  
Andris Pesudovs
Keyword(s):  
Civil Procedure ◽  
Legal Principles ◽  
Legal Relationship ◽  
Simplified Procedure ◽  
The Right ◽  
Judicial Protection ◽  
To Receive ◽  
Legal Consequences

Not always are a legal transaction and the legal consequences thereof limited to complete and voluntary fulfilment of the mutual obligations of the parties. In cases when a commitment has not been fulfilled, there is an option for a creditor to request for judicial protection in order to prove substantiality of his claim and to receive confirmation to his right to recover the debt in a form of court judgment. However, in the civil legal relationship such impairment of a right is possible which exists outside the dispute regarding the right. A debtor fails fulfilling his obligation and not denies doing it. In such circumstances, notwithstanding recognition of the debt, in order to achieve compulsory execution of the obligation, a document to be enforced is also needed. Provided the type of transaction allows establishing of such type of legal consequences, simplified procedural arrangements may be applied, and restricted principle of contest may result in the possibilities of procedural economy being exercised. Admissibility of such procedural possibility also inevitably activates the discussion regarding what the preconditions of the simplified procedure are and how the simplified procedure of establishing the debtor's obligation can be consistent with protection of his rights. The article focuses on the procedural legal principles, which are involved in the alternative to claim proceedings action of the expedited proceedings and the mutual coherency thereof. Attention is also paid to the form of the transaction and significance thereof in the simplified proceedings.

scholarly journals UDZIAŁ OSÓB NIEUPRAWNIONYCH W WYDANIU ORZECZENIA W POSTĘPOWANIU CYWILNYM - UWAGI NA TLE D.1,14,3 I D.41,3,44 PR.

2017 ◽  
Vol 6 (2) ◽  
pp. 97
Author(s):  
Bartosz Szolc-Nartowski
Keyword(s):  
Common Sense ◽  
Public Interest ◽  
Civil Procedure ◽  
The Other ◽  
Roman Law ◽  
Private Law ◽  
The Public ◽  
Civil Proceedings ◽  
Bona Fide ◽  
Polish Law

Participation of Unauthorised Persons in Issuance of Decisions in Civil Proceedings - Remarks on the Basis D. 1,14,3 and D. 41,3,44 pr.SummaryAccording to Polish civil procedure a sentence given by an unauthorized person is invalid. This was not always the case in ancien Roman law. Ulpianus declared that when a slave, who escaped from his master, became a praetor, his acts were valid. He took into consideration serious problems of those who had put their trust in the praetor’s office as well as the respect for humanitas. A basic common sense requires that what was well decided, should be considered valid. According to the author, Ulpianus realized that the rule of ius civile which determined the requirements for entering in a praetor’s duties had the character of a guarantee. If the purpose, for which this rule was established, was achieved, such acts should be accepted as valid.The question arises whether that approach could be applied to contemporary cases of iudex incompetens. Furthermore, whether it would be justifiable to extend this solution to other - not only procedural – but also material, guarantee rules?The answer is not easy. In D. 41,3,44 pr., a pater familias conducted the procedure of adrogation (adoption) improperly. Papinianus decided that, although pater familias made a justifiable mistake, all that the son enacted in the name of the father, was invalid. Nevertheless a different rule, as the jurist says in D. 41,3,44 pr., must be observed in the case of homo liber bona fide serviens - a person, who being unaware of his free man status, served as a slave. Actions taken by such a person were valid (the purchaser of a slave had to be protected), since transactions of that kind happened very often. More importantly, any other solution would be against the public interest. O n the other hand, it was very rare for a pater familias to wrongly adrogate, therefore the example of pater familias did not create a general rule.It seems quite difficult to indicate one principle which could be applied to all the guarantee rules. As far as the case of an unauthorized person giving sentence is concerned, the Roman private law shows that the regard for the public interest may sometimes justify solutions different from those preferred by Polish law.

ALIENS AS INTERNATIONAL CIVIL PROCEDURE ACTORS IN RUSSIAN AND U.S. LAW: THE ISSUE OF INTERNATIONAL COMMERCIAL LITIGATION

2021 ◽  
Vol 10 (6) ◽  
pp. 193-223
Author(s):  
V.O. PUCHKOV
Keyword(s):  
International Organizations ◽  
Legal Protection ◽  
The United States ◽  
Civil Procedure ◽  
Point Of View ◽  
Procedural Law ◽  
Legal Relationship ◽  
Civil Proceedings ◽  
Legal Entities

The article examines the issue of the procedural status of various aliens (individuals and legal entities, international organizations and states) in the international civil procedure of Russia and the United States of America. The author comes to conclusion that the determination of the composition of the parties of international commercial dispute (as well as the qualification of their claims and forms of legal protection) should be determined on the basis of lex (processualis) causae, reflecting the essence of the substantive disputed relationship and the peculiarities of its qualifications from the point of view of national law. The study analyzes the features of the procedural position of specific categories of actors (individuals and legal entities, international organizations and states), as well as persons facilitating justice in international commercial disputes. The article states that the limits of foreign procedural law application to the procedural status of an alien in Russian civil proceedings is mediated by his connection with the essence of the substantive disputed relationship. Depending on the nature of such a connection, the author proposes to divide aliens as actors of international civil procedure into two groups: persons directly related to the disputed legal relationship and, therefore, subordinate lex processualis personalis (parties, third parties and their representatives) and persons, communication which with a controversial legal relationship is of an indirect nature and the procedural status of which is therefore regulated by lex fori (witnesses, experts, specialists and translators). Also, the study pays attention to the problems of jurisdictional immunity of a foreign state and conflict aspects of fraudulent joinder.

NECESSARY (COMPULSORY) EVIDENCES IN CIVIL PROCEDURE

2021 ◽  
Vol 11 (5) ◽  
pp. 61-70
Author(s):  
S.V. NIKITIN
Keyword(s):  
Expert Opinion ◽  
Civil Procedure ◽  
Legal Obligation ◽  
Forensic Evidence ◽  
Civil Proceedings ◽  
Special Rule ◽  
Factual Data

In this article, the author examines the concept and procedural and legal significance of necessary (mandatory) forensic evidence. It analyzes the formulated by M.K. Treushnikov, who was the first in the procedural doctrine who paid attention to the legal obligation to use certain means of proof when establishing certain legal facts, the positive rule of admissibility of evidence, the positions of other authors on the issue of necessary evidence in civil proceedings. The rule of necessary (obligatory) evidence is considered as a special rule of judicial proof. At the end of the study it is concluded that the allocation of necessary evidence is carried out from the same content of factual data, reflecting the same fact, based on the peculiarities of their procedural form. Necessary evidence in its form is a specific type of a written document or expert opinion. Thus, the rule of proving the circumstances of the case with the use of necessary evidence concerns the form of evidence, beyond its content. The thesis is also put forward that necessary evidence, due to the specifics of the procedure for its formation, the presence of requirements established by law to its form and content, has a significant evidentiary value.

TYPOLOGY OF ADMINISTRATIVE COURT PROCEDURE AND WAYS OF UNIFICATION OF CIVIL PROCEDURE

2020 ◽  
Vol 10 (5) ◽  
pp. 118-133
Author(s):  
N.V. SAMSONOV
Keyword(s):  
System Analysis ◽  
Civil Law ◽  
Administrative Law ◽  
Civil Procedure ◽  
Theoretical Discussion ◽  
Legal Relationship ◽  
Personal Rights ◽  
Arbitration Process ◽  
Legal Nature ◽  
Research Goal

Within a matter of a theoretical discussion about the legal nature of administrative court procedure, the article investigates the issue of issue of a type of this procedure. In order to reach the research goal the author solves the following problems: defines the essence of the protective legal relationship in the administrative court procedure; finds out whether it is typical for administrative court procedure to deal with dispute about personal right; makes a comparative analysis of the targets of administrative court procedure, its main principles with similar institutions in administrative and civil procedure. The methodological basis of the research is the dialectic approach. The author uses the methods of system analysis, formal logical analysis, formal legal and comparative legal methods. The following conclusions are made: as examining the cases in terms of administrative court procedure, the courts resolve the conflicts about personal right, that is typical for civil procedure; the main aim of administrative court procedure, civil and arbitration process is defense of violated or contested personal rights, freedoms and legal interests, that is not similar to the goal of administrative law and process; administrative court procedure and civil and arbitration process have common principles that differ essentially from the principles of administration law and process. The empirical data that confirm these conclusions are analyzed. The author concludes that administrative court procedure can be estimated as a new protsessual form of civil procedure. The unification of the general provisions of civil law procedural legislation is proposed.

scholarly journals Tax liability of banks for non-fulfillment of tax authorities’ decisions: legislative regulation and law enforcement practice

2019 ◽  
pp. 87-94
Author(s):  
Екатерина Бочкарева ◽  
Yekatyerina Bochkareva
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal Obligation ◽  
Legal Relationship ◽  
Legislative Regulation ◽  
The Russian Federation ◽  
The Law ◽  
Credit Institutions

The author analyzes the articles 134 and 135 of the Tax code of the Russian Federation and the practice of their application. In the article are considered the problems of bringing credit institutions to responsibility for commission by them breaches of the law related to non-fulfillment there publicly-legal obligation to enforce decisions of tax authorities. The author substantiates the conclusion that the amount of the taxpayer's debt determined for the purpose of prosecuting banks according the article 134 of the Tax code of the Russian Federation, should not include the amount of fines and penalties, since banks are not actual participants in the legal relationship “tax authority — taxpayer” and have no right to appeal against the amount of money that serves as the basis for establishing a fine.

scholarly journals Ensuring the interests of children in cases of deprivation of parental rights

2021 ◽  
pp. 103-117
Author(s):  
Vasyl Datsenko
Keyword(s):  
Family Environment ◽  
Family Law ◽  
Best Interests ◽  
Child Rearing ◽  
Legal Responsibility ◽  
Future Research ◽  
Parental Rights ◽  
Legal Obligation ◽  
Public Employees ◽  
Family Responsibility

Proper child-rearing of children is the main moral and legal obligation for both parents. In addition, the way parents fulfill their relationships fully requires the constant development of the child, according to her formation and becoming as a person. Unfortunately, not all parents fully communicate their responsibility for the development of the child, the formation of his personality, the importance of their upbringing for a better future of a child. In those times when parents misuse their shared ties, family law measures may be applied to them when the parental rights greeting appears. According to most of the scientists, in this category of reference, welcoming parental rights, is carried out by the court to ensure the interests of the child.Meanwhile, deprivation of parental rights is also a type of family legal responsibility, the main service of which is the search for parents. However, such an approach to amending the institution inviting parental rights into the means of family legal responsibility, highlighting the punitive function of this event, attempts to assign this procedure to the function, the nature of legal liability (fine, educational, preventive), an unjustified conclusion about public employees, the state, society and parents, and this reason distracts from the main participant in this procedure - the child. When considering the issues of the proclamation of parental rights, the main issue for the court should be the proportionality of the interference with the child's right to a family environment to the level of threat of the child's right to formation, protection, health and education. In their quick reference about the appropriateness of punishing the father, the court cannot be judged, so they cannot be present on the child in any way. It also appears logical that in such cases the court cannot at all achieve the goal of punishing the father and simultaneuoslyensuring the best interests of the child. Pursuit of the goal of punishing the father ambiguously intersects with the interests of the child and negatively affects them. Future research should move away from the concept of deprivation of parental rights as a form of family responsibility because in this case the purpose of punishing the father is provided costing the interests of the child. Keywords: best interests of the child, family law relations, legal responsibility, deprivation of parental rights, family law responsibility.

scholarly journals Venire contra factum proprium: From a binding past to a binding future

Pravovedenie ◽  
2020 ◽  
Vol 64 (2) ◽  
pp. 270-308
Author(s):  
Translator alter
Keyword(s):  
Roman Law ◽  
Private Law ◽  
Legal Relationship ◽  
New Thinking ◽  
Functional Analog ◽  
Bona Fide ◽  
Legal Position ◽  
Venire Contra Factum Proprium ◽  
Bürgerliches Gesetzbuch ◽  
Formal Rules

Inadmissibility of controversial conduct (venire contra factum proprium) is a continental functional analog of common law estoppel. It is a special “pitfall” under the rubric for the application of the bona fide requirement when inadmissibility of conduct is derived from its controversial character in regard to previous conduct. The article exposes a lack of necessity in the prohibition under the regimes of early private law codifications of the Modern Age (France, Austria) which is why one may observe its prevalence primarily in Germany after the enactment of German Bürgerliches Gesetzbuch (Civil Code). The author thinks of its prevalence as a result of a drastic change in understanding the legal relationship induced by the restoration of corporate thinking in a renewed form as opposed to individualistic thinking associated with Roman law and the first draft of Bürgerliches Gesetzbuch. For the courts, the inadmissibility of controversial conduct became a convenient means to justify the restatement of rules formally binding for parties in cases where, as a result of the application of formal rules, the connection between the conduct of a party to a legal relationship and its negative outcome, which under said formal rules, totally fall into the other party’s burden. Due to this, the concept of a legal relationship, previously built as mere correlation of a subjective right to liability, is complicated by an element of burden — some of which would be imposed on the entitled party. This revealed the formal side of inadmissibility of controversial conduct, which made it possible to correct what shall be treated in terms of new thinking as a gap of regulation formed by individualistic thinking. In material terms, the inadmissibility of controversial conduct is limited in literature to cases when the previous conduct of a certain person has caused legitimate expectations from the counterparty and the current conduct contradicts these expectations. The author refutes this reduction since from the outset, the founding idea of the rule was to preserve the interrelation between conduct and adverse consequences lost in the formal application of the law. The contradiction of conduct, hence, shall be seen in using a formal legal position to prevent the adverse outcome of one’s own conduct. However, development of this court practice revealed another function of the rule, much more important in the author’s opinion, namely, the acceleration of civil communication governed by private law.

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