REGULATION OF CIVIL LAW EMPLOYMENT OR EMPLOYMENT LAW?

Performance of work on a basis other than an employment relationship takes various forms. Predominantly, it takes place based on civil law relationships, which are characterised by the principle of freedom of contract, which results in the possibility of freely shaping the content of any such legal relationship. However, recent years are marked by a gradual increase in regulations of employment other than based on contracts of employment, i.e. based on civil law contracts. Introducing a minimum hourly wage, limiting employment in trade on Sundays and public holidays, providing temporary work under civil law contracts or the much earlier widespread granting of employment rights to contractors in the putting-out system and, above all, granting the right to safe and hygienic working conditions to everyone who performs work justifies asking questions about future developments.

THE FREEDOM OF CONTRACT AND ADDITIONAL CONTRACTS OF THE PARTIES TO THE EMPLOYMENT RELATIONSHIP

The issue of freedom of contract in the individual labour law is discussed in this text taking into account the additional conctracts, concluded by the employer and the employee in addition to the primary contract (i.e. employment contract). The scope of freedom of contract which is construed in the relation to the additional contracts shows deviations from the basic model. The main difference is the recognition of the rule of numerus apertus (as opposed to numerus clausus rule) of additional conctracts. The specifity of additional contracts extends the freedom of parties of an employment relationship to form the content of that legal relationship. This, however, does not prejudge a question of a regulatory model of the above-mentioned freedom.

CONTRACTUAL BASIS FOR TERMINATION OF CIVIL LEGAL OBLIGATIONS: PROBLEMS OF THEORY AND PRACTICE OF APPLICATION

The article considers contractual grounds for termination of civil obligations: compensation, innovation, debt forgiveness. The paper notes some problems of the application of Articles 409, 414, 415 of the Civil Code of the Russian Federation in judicial practice, analyzes the issues of the ratio of compensation and innovation, the differentiation of these contracts. The problems of qualification of agreements on the grounds for termination of obligations in law enforcement practice and the question of applying the principle of freedom of contract to the relations under consideration are considered. It is noted that at present the practice of applying the legislation on compensation has changed significantly. Despite the restrictions established by the norm of Article 409 of the Civil Code of the Russian Federation, judicial practice allows the possibility of using works and services as a subject of compensation, which leads to problems of distinguishing such contractual grounds for termination of obligations as compensation and innovation. With regard to the innovation, an analysis of the provisions on the possibility of novating the penalty into a loan obligation is given. A problematic issue is the legal qualification of debt forgiveness as a basis for termination of an obligation. It is noted that the contractual nature of debt forgiveness should be taken into account. Acceptance of notification by the debtor's creditor of his release from the performance of his duty is the silence of the debtor (clause 2 of Article 438 of the Civil Code of the Russian Federation). The article also considers the question of the ratio of debt forgiveness and donation. The analysis of judicial practice shows that the courts do not consider debt forgiveness as a gift, except in cases when the creditor released the debtor from the performance of the obligation free of charge. In this case, the norms of Article 168 of the Civil Code of the Russian Federation and paragraph 4 of Article 575 of the Civil Code of the Russian Federation are subject to the application of debt forgiveness.

Fransız Milletlerarası Tahkim Kanunu’nun İncelenmesi

International arbitration notion contains to be commercial and to be international together, different from national arbitration notion. To be international criterion is to the fullest extent arranged in old French CPC art. 1492, which contains also French Arbitration Code. According to this article which is protected by 13 January 2011 reform; arbitration which is about international commercial benefit is an international arbitration. In 1992 French Arbitration Commitee prepared a report with the name of “Perspectives for İmprovement of French Arbitration Law”. The amendements of the directive of 13 January 2011 is neither a revolution nor an easy make up but it is a real reform which can be known as by the words clarity, definiteness, flexibility, freedom of choice, effectuality and speediness. The reform of 2011 did not changed the liberal structure of the French international arbitration law which is stand by freedom of contract and limited only by public policy. Keywords: France, International Arbitration, Freedom of Choice, Public Policy, Liberal

Development of Retail Payment Systems Since 1949

<p>Starting with the introduction of the Diner's Club payment card in 1949, the means of exchange have progressed well beyond traditional instruments such as notes, coins and cheques. I use institutional economics to analyse historical data on the evolution of recently-developed retail payment systems in Australia, Canada, Germany, New Zealand, Norway, the United Kingdom and the United States. The framework I create yields insights into the incentives faced by the users of payment instruments and the payment networks that provide them. It also provides a means to assess the role of government in the evolution of retail payment systems. Ceteris paribus, consumers and merchants will prefer low transaction cost payment instruments. In order to complete a transaction, a consumer will proffer an instrument that may or may not be accepted by the merchant. Together, merchants and consumers will choose the payment instrument that generally reduces demand-side – i.e. consumer and merchant – transaction costs, relative to other available instruments. Consumer irreversible costs of adoption enhance the importance of network effects. To help overcome these, I argue payment networks need to make acceptance of their instrument attractive to merchants, which I find to be supported by analysis of the pricing of payment instruments. It distinguishes recently-developed payment instruments from other new technologies – the most technologically advanced instrument will not likely be adopted unless it is first acceptable to merchants. In workably competitive conditions, profit-seeking payment networks will attempt to provide an instrument that gets used while it at least recoups its costs of supply from fees paid by users. I argue this suggests a process of institutional adaption for profit-seeking payment networks. Network effects mean the use of an instrument grows disproportionately faster, the greater the number of people using it. For instrument supply, this means profit-seeking payment networks have an incentive to increase participation. In the presence of potential inter-network competition, a payment network will likely experience greater participation if, ceteris paribus, it offers an instrument that generally reduces demand-side transaction costs to a greater degree than competing networks' instruments and provides it with lower costs of supply. Governments play two key roles in retail payment system development. First, they can affect the development of systems by how well they protect property rights and enforce contracts. Although this role is performed relatively well in my sample countries, my analysis suggests that the use of recently-developed retail payment systems would fall, substantially, were it not so. Second and more importantly in my sample countries, governments impose restrictions on the freedom of contract for payment networks. If restrictions on this freedom are such that they prevent the trading of property rights, they risk reducing either the demand or the supply of payment instruments. Such restrictions might reduce demand if the instrument that would have been used no longer generally reduces demand-side transaction costs. They might reduce supply in two ways: by impeding payment networks' attempts to offer instruments that reduce these transaction costs or by reducing inter-network competition. In summary, I find that it is government restrictions on the freedom of contract that cause the substantial differences in the use of newly-developed retail payment systems between my sample countries. By risking reducing the supply and demand of retail payment systems, these restrictions may diminish innovation in payments, thereby harming dynamic efficiency.</p>

Development of Retail Payment Systems Since 1949

<p>Starting with the introduction of the Diner's Club payment card in 1949, the means of exchange have progressed well beyond traditional instruments such as notes, coins and cheques. I use institutional economics to analyse historical data on the evolution of recently-developed retail payment systems in Australia, Canada, Germany, New Zealand, Norway, the United Kingdom and the United States. The framework I create yields insights into the incentives faced by the users of payment instruments and the payment networks that provide them. It also provides a means to assess the role of government in the evolution of retail payment systems. Ceteris paribus, consumers and merchants will prefer low transaction cost payment instruments. In order to complete a transaction, a consumer will proffer an instrument that may or may not be accepted by the merchant. Together, merchants and consumers will choose the payment instrument that generally reduces demand-side – i.e. consumer and merchant – transaction costs, relative to other available instruments. Consumer irreversible costs of adoption enhance the importance of network effects. To help overcome these, I argue payment networks need to make acceptance of their instrument attractive to merchants, which I find to be supported by analysis of the pricing of payment instruments. It distinguishes recently-developed payment instruments from other new technologies – the most technologically advanced instrument will not likely be adopted unless it is first acceptable to merchants. In workably competitive conditions, profit-seeking payment networks will attempt to provide an instrument that gets used while it at least recoups its costs of supply from fees paid by users. I argue this suggests a process of institutional adaption for profit-seeking payment networks. Network effects mean the use of an instrument grows disproportionately faster, the greater the number of people using it. For instrument supply, this means profit-seeking payment networks have an incentive to increase participation. In the presence of potential inter-network competition, a payment network will likely experience greater participation if, ceteris paribus, it offers an instrument that generally reduces demand-side transaction costs to a greater degree than competing networks' instruments and provides it with lower costs of supply. Governments play two key roles in retail payment system development. First, they can affect the development of systems by how well they protect property rights and enforce contracts. Although this role is performed relatively well in my sample countries, my analysis suggests that the use of recently-developed retail payment systems would fall, substantially, were it not so. Second and more importantly in my sample countries, governments impose restrictions on the freedom of contract for payment networks. If restrictions on this freedom are such that they prevent the trading of property rights, they risk reducing either the demand or the supply of payment instruments. Such restrictions might reduce demand if the instrument that would have been used no longer generally reduces demand-side transaction costs. They might reduce supply in two ways: by impeding payment networks' attempts to offer instruments that reduce these transaction costs or by reducing inter-network competition. In summary, I find that it is government restrictions on the freedom of contract that cause the substantial differences in the use of newly-developed retail payment systems between my sample countries. By risking reducing the supply and demand of retail payment systems, these restrictions may diminish innovation in payments, thereby harming dynamic efficiency.</p>

MODERNIZATION OF THE INSTITUTIONAL FOUNDATIONS OF THE STOCK MARKET IN UKRAINE: PROSPECTS FOR UPDATING FINANCIAL INSTRUMENTS

The negative tendencies in the development of the financial market of Ukraine are stated, including the limitedness of the applied financial instruments. Despite the extensive list of types of securities and derivatives already available to market participants, investors' interest is concentrated almost exclusively on government securities, while transactions with corporate financial instruments are sporadic. In the course of the study of the updated Ukrainian legislation in the field of capital markets it is substantiated that the declared purpose of introduction of new financial instruments does not correspond to the real content of legislative changes. It is, first of all, a cosmetic change of classification features or names and regulation at the legislative level of requirements for certain types of securities, which already existed before at the level of bylaws. Formally, the number of groups and types of securities available for circulation will even decrease after the legislation is updated. Perhaps the only noticeable expansion of the list of tools concerns the legislative design of certain categories of debt securities, the issue and circulation of which, however, did not contradict previous legislation. It was found that a significant expansion of the classification features of derivatives is provided by atypical instruments, the use of which has not previously been prohibited by law, but it is not accompanied by changes in tax legislation; restricts the current freedom of contract for the parties to derivative contracts, even if they are concluded outside the regulated market, and leads to significant legal uncertainty due to the inclusion of a wide range of issues regarding the specifics of the use of derivatives in the scope of the regulator's powers to regulate them at the level of its own regulations, which obviously will not be developed in time, until the amendments come into force. It is substantiated that sporadic changes in the legislation related to the contradictory implementation of the European legal framework are insufficient to solve the real problems of financial market infrastructure development and expansion of its tools.

THE INFLUENCE OF PLAIN LANGUAGE AND STRUCTURE ON THE READABILITY OF CONTRACTS

Contracts form an integral part of our existence, both in our work and personal environments. They are an unavoidable consequence of our participation in the commercial world. As such they are important since they will determine the distribution of wealth and power in society. South African law has always stuck religiously to the principles of freedom of contract and pacta sunt servanda. That is to say, everyone should have the utmost freedom to enter into contracts with whomever they please and once that agreement has been struck it must be adhered to. Through the application of these principles the law of contract obtained a high degree of certainty which is important for the parties to a contract because they know what their rights and obligations are. Furthermore they are safe in theknowledge that the contract is enforceable. While this may be an ideal situation we do not live in an ideal world. A large percentage of our society has had little contractual experience and even those that have are still regularly involved in contacts over which they have no control. Whilst consumers supposedly have freedom to contract, they very often have no leverage to negotiate the terms of the contract since a business will often make use of a standard form contract. As a consequence of this lack of bargaining power, consumers entering into contracts may not bother to read the terms since they are bound by them no matter what. Another reason is that they may be drafted and set out in such a way as to dissuade consumers from reading them.

CASES OF A UNILATERAL OBLIGATION TO CONCLUDE AGREEMENT UNDER THE CIVIL LAWOF THE RUSSIAN FEDERATION

The article is devoted to identifying in the civil legislation of Russia the cases provided for by law, in which parties is obliged to conclude an agreement. The author analyzes the relationship between the principle of freedom of contract and the obligation to conclude a contract provided for by law. The article provides a list of identified cases in which the obligation to conclude an agreement is imposed on one of the parties, as well as on both parties to the agreement.