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MULTIPARTY ARBITRATION – PROBLEMS AND LATEST DEVELOPMENTS

Author(s): Dejan Janićijević / Language(s): English Issue: 1/2015

The author presents key issues related to participation of multiple parties in the arbitration procedure. Consolidation of arbitration proceeding, resulting in a multi-party procedural relationship, as well as joinder and intervention of third persons, non-signatories to the arbitration agreement, are viewed for the purpose of identifying possible problems their emergence in arbitration may cause. The development of judicial approach to procedural questions raised by participation of multiple subjects in the contractual relationships, out of which the dispute before the arbitral tribunal has arisen, is showcased through the analysis of the 2010 United States Supreme Court Decision, which sets grounds for restricting multi-party arbitration only to situations where participation of multiple parties in a single proceeding is expressly provided for in the arbitration agreement.

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ИСТОРИЈA ПООШТРАВАЊА ЗАКОНСКЕ ФОРМЕ УГОВОРА О ОТУЂЕЊУ НЕПОКРЕТНОСТИ У СРПСКОМ ПРАВУ

Author(s): Marija Karanikić Mirić / Language(s): Serbian Issue: 4/2015

The subject of this paper is continuous process of tightening of the statutory rules on form of contracts for conveyance of real estate in Serbian law, the reasons behind it, and the most recent legal changes which made the statutory form stricter than ever. In the beginning, the requirements of form were imposed circuitously, by means of procedural rules on proof. Further tightening was effectuated directly, via the rules of substantive contract law. Statutory form of contracts for transfer of real property predominantly serves to protect public interests, i.e. to reduce the number of disputes about the existence and content of these contracts; to ensure the existence of a diligently and professionally recorded and authenticated public instrument with full probative force; to assure that the third parties with legitimate interests may learn about these contracts as matters of fact; to ensure that the State has full information on transfer of real rights in immovable property – for fiscal reasons, and in order to maintain reliability of the public records. The process of constant tightening of the rules on legal form of contracts for conveyance of real estate indicates that Serbian society is in continual search for effective instruments to achieve these goals.

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СТУДИЈА О ЕФИКАСНОСТИ ПАРНИЧНИХ ПОСТУПАКА ПРЕД ОСНОВНИМ СУДОМ У НИШУ

Author(s): Aleksandar Mojašević / Language(s): Serbian Issue: 4/2015

In this study, using the methodology of the European Commission for the Efficiency of Justice (CEPEJ), the author examines the efficiency of civil proceedings before the Basic Court in Niš in the period from 2008 to 2014. The author measures three indicators related to the efficiency of civil proceedings: the clearance rate, the length of the civil proceedings expressed by means of the disposition time and the case turnover ratio, and the number of unresolved cases, including the old ones. The aim of this study is to determine whether, and to what extent, the civil proceedings before the Basic Court in Niš were efficient in the observed seven-year period, particularly in light of the reform measures on improving the efficiency of the Serbian judicial system and, in particular, the efficiency of civil proceedings. The initial assumption is that the effects of new legal solutions contained in the 2011 Litigation Act, primarily the effects of introducing and implementing a new time frame principle, are visible in terms of efficiency of civil proceedings. The most important findings prove that there was no significant acceleration of proceedings, increase of clearance rate and reduction of the number of unresolved cases before the Basic Court in Niš especially in the period after the application of the Litigation Act.

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ПРИВАТНЕ АГЕНЦИЈЕ ЗА ЗАПОШЉАВАЊЕ – (МЕЂУНАРОДНИ, КОМУНИТАРНИ И НАЦИОНАЛНИ ПРАВНИ ОКВИРИ)

Author(s): Radoje Brković / Language(s): Serbian Issue: 4/2015

Private Employment Agencies became a reality on the global labour market, and temporary work represents their most significant part. On the international level, legal status of these agencies is regulated through the Convention No. 181 on Private Employment Agencies which has been ratified by 29 countries so far, including the Republic of Serbia. European Union adopted Agency Work Directive 2008/104, and member states implemented its provisions into their respective legal systems. Temporary agency work has become the most significant form of labour engagement of people who are willing to work. Very important issue is related to a principle of equal treatment of the workers hired through the private employment agencies, in terms that they must have the same legal status as the regular employees. Mostly, the scope and status of private employment agencies in various countries is regulated by the Law. It can be a Labour Code, or some other special law on private agencies for employment, or finally, in some countries, and only few of them, scope and status of private employment agencies can be regulated by the Employment Law. A partnership should be established between private agencies for employment and public employment services. Public employment services should never have a monopoly in this field. The Republic of Serbia should, in near future, regulate the status of private agencies for employment in Labour Code.

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Правові наслідки недійсності в спадковому праві

Author(s): V. Krat / Language(s): Ukrainian Issue: 131/2015

Invalidity is widespread the legal phenomenon, thus has a substantial specific in a succession law. To research law consequences of invalidity in a succession law, in particular, such researchers applied as Ronald J. Scalise Jr., Pecheniy О., Krat V., І. Kenneth G C Reid, Marius J. de Waal, Reinhard Zimmermann. Appropriate analysis of contemporary issues legal consequences of invalidity in a succession law actually unavailable. But, of course, there is a theoretical and utilitarian need, at a minimum, to identify the kinds of invalidity, and to determine specific to its influence on inheritance rights. The article is sanctified to research the law consequences of invalidity in a succession law. In the article is analyzed the law consequences of invalidity: testament, revocation of a will, another unilateral transaction (order of bank, acceptance of inheritance, refusal from taking of inheritance), certificate of the right to inheritance. Depending on what legal fact is invalid, and legal consequences of invalidity are different that might affect the on inheritance rights. Such exposure can, for example, expressed in appearance or vice versa, is not of the right to inheritance by law, restoration force of canceled testament.

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Поняття народної законодавчої ініціативи та її види

Author(s): A. Krutko / Language(s): Ukrainian Issue: 130/2015

National legislative initiative is a new instrument of popular wills demonstration as compared to different forms of direct democracy. In most of developed democracies this institution regulated at the constitutional/ legislative level. But in the modern Ukraine its constitutional legal regulation is absent, due disregard of its possibilities and lack of understanding of its essence. Paper objective. This article an aim is to analyze in details the definition of «national legislative initiative» and determinate its basic types according to theoretical insights and foreign current law. Recent research and publications analysis. The domestic and foreign scholars works on scientific research of national legislative initiative institution such as V.N. Rudenko, O.M. Mudra, V.M. Shapoval, V.F. Nesterovich, J. F. Zimmerman and etc. Their works were foundational at the time of writing. Paper main body. With the help of big definition dictionary and new encyclopedic dictionary it was found the etymology of the concept «initiative» which is characterized as the basis, also found meaning of «legislative initiative», «national initiative» and «national legislative initiative». It was argued impossibility an identification of «national initiative» with «national legislative initiative». The current definitions of the national legislative initiative were analyzed in the article. It was noted that suggested terms were limited only by identification of institute’s apparent indicator and withhold essence. This is precisely why four types of the national legislative initiative’s realization are briefly examined for the complex determination of the definition. These types depending on what role the legislator are assigning to citizen, who are the main actors of initiative. And on the basis of this analysis the author provided his own definition of «the national legislative initiative». The author had notes that the proposed definition was not general, because the institute of national legislative initiative had many types. On the basis of the foreign current law and the scholar’s works were separated 6 criteria whereby the national legislative initiative can divided into certain types. Conclusions of the research. On the basis of foreign laws and scientific literature, the author concludes that national legislative initiative is the complicate institute. The content of which is that the number of citizen who are define by law can initiate the creation or ready to propose a bill through incorporation it to representative body. This bill must be considering on a mandatory basis or referendum. The result of which can weigh with the decision of the adoption or rejection of the bill.

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Цивільно-правовий договір як регулятор цивільних відносин

Author(s): Yana Novokhatskaya / Language(s): Ukrainian Issue: 130/2015

Problem statement. The participants of the civil circulation are given the opportunity to conclude a contract which constitutes a fundamental framework of civil relations. The interests of the parties are realized through the conclusion and implementation of contracts. The agreement is a universal means of legal regulation of property relations, which provides the achievement of objectives defined by the parties. The purpose of the contract may be economic, social or other, while remaining expressed in legal terms, that is legal. Civil contracts are concluded for the purpose of transferring items of property, execution of work or providing services. Analysis of recent research works and publications. The modern theory of civil contract has been presented in the works by V.Lutsya, I. Zhylinkova, M. Sibilova and other authors. The aim of this work is define the specific features of a civil contract as a regulator of civil relations, the order of its conclusion, modification and termination, the correlation of terms and conditions that constitute its content. The main research material. A contract is an agreement between two or more parties on the establishment, modification or termination of civil rights and obligations. The agreement is a unity of the subjective element - the will and the objective element - declaration of intent. The free declaration of intent (will) of the parties to a contract is one of the manifestations of freedom of agreement as one of the principles of civil law. The parties are free to conclude a contract, to choose a contracting party and determine the contract terms and conditions on the basis of the law and customs of business conduct, the principle of prudence, integrity and fairness. The concurrence of the wills of the parties - the expression of will by one party and counter-declaration by the other - creates an agreement that gives rise to a contractual relationship. That is a contract provides for expression of the will of each party and its concurrence. The agreement is the result, in which the will of the parties finds its general expression that is only in the legal sense of an "act of volition". Conclusions. Civil rights and obligations are always placed in the specific time frame. Therefore it is important to establish the moment when they arise. The agreement enters into force and becomes binding on the parties after its conclusion. If the transfer of property is essential for concluding the contract, it is considered to be in force immediately upon the transfer of property. The parties are granted the right to extend the contract conditions on their relations that had been established before concluding the contract. The agreement, which must be notarized, comes into force immediately upon its notarization.

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ивості обчислення розумного строку судового розгляду цивільних справ у контексті практики Європейського суду з прав людини

Author(s): Tetiana Tsuvina / Language(s): Ukrainian Issue: 130/2015

Problem setting. European Convention of Human Rights (ECHR) guarantees right to a fair trial within a reasonable time for everyone (par. 1 art. 6 ECHR). Reasonable time of the trial is an element of the right to a fair trial. One of the main directions for development of civil procedure in Ukraine is the implementation of international standards of fair trial, in particular standards of reasonable time of the trial. Recent research and publications analyses. Foreign and Ukrainian scientists such as Komarov V. V., Neshataeva T. M., Sakara N. U. and others in their works paid attention to different aspects of problems connected with the right to a fair trial within a reasonable time, but a comprehensive study devoted to a features of calculation of reasonable time of the trial taking into account the practice of the ECHR on this issue wasn’t conducted. Paper objective. Main objective of the article is to study decisions of the ECHR concerning the interpretation of Par. 1, Art. 6 ECHR and analyze features of calculation of reasonable time of the trial to make recommendations on implementation of such national level. Paper main body. As a rule, according to a practice of ECHR reasonable time of civil proceedings begins on the date on which the case is referred to a judicial authority. Thus ECHR can take as the starting point the date of a preliminary application to an administrative authority, especially when this is a prerequisite for commencement of proceedings. The end of reasonable time of the trial connected with the moment when the court decision become final or its execution. Conclusions of the research. Calculation of reasonable time of the trial in civil cases in circumstances when an application to the court was preceded by a seeking for protection from the authorities and public servants of executive power has features. In such situations a calculation of reasonable time of the trial doesn’t begin from the moment of seeking for protection from any authority or public servant of executive power, provided by art. 17 of Civil Code of Ukraine. The calculation begins from this moment only if such authority provides guarantee of a “court” according to the practice of ECHR or this is a prerequisite for commencement of proceedings.

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Недійсність публічних торгів у судовій практиці

Author(s): V. Krat / Language(s): Ukrainian Issue: 130/2015

Problem setting. Nullity is the enough widespread phenomenon in a civil law. The analysis nullity determines a requirement in finding out nullity of public auction is in judicial practice. Recent research and publications analysis. To the analysis nullity of public auction, in particular, such researchers applied as Кrаt V.I., Romanyuk Y.M., Spasybo-Fatieieva I.V. Paper objective. Intensive application in the modern terms of public auction, in particular, at the appeal of penalty in an executive production, stipulated both in a doctrine and in judicial practice far of problems (for example, in relation to understanding of public auction, admission of confession nullity of public auction, and grounds for such nullity). Paper main body. In the article is investigated nullity of public auction in judicial practice through the prism of understanding public auction, admission of confession nullity of public auction and grounds for such nullity. Conclusions of the research. Drawn conclusion, that at the level of judicial practice was essentially formed the separate method of defence – confession nullity of public auction. Admission of existence and application of confession nullity of public auction (as a method of defence unforeseen nor by law, nor by agreement), is finding out of his efficiency for the protection broken civil rights and interests and establishment or he will provide their renewal.

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До питання про особливості спадкових правовідносин

Author(s): O. Pecheniy / Language(s): Ukrainian Issue: 129/2015

Problem Setting. In the article the features of the inherited legal relationships are analysed. Their separate elements are investigational, in particular object and maintenance.Analysis of the recent researches and publications. An extended abstract of a paper on the subject of succession in accordiance with civil legislation. Succession is the passing of rights and obligations (inheritance) from a natural person who died (the testator) to other persons (the heirs). Inherited legal relationships are juridical forms of succession as the passing of rights and obligations.Paper objective. Inheritance shall include all rights and obligations of the testator as of the moment of opening of inheritance that did not terminate in consequence of the testator's death.Succession shall be exercised based on a will (testamentary succession) or according to law (legal succession). All types of succession are represented legal relationships.Paper main body. It is grounded in the article, that the inherited relations can exist only as relations legal. Structurally they are engulf subjects, their right and duties and inheritance as object. Objects and maintenance of the inherited legal relationship are examined in the article in co-operation of rights and duties and real conduct of participants.Conclusions. Legal nature of succession of rights as rights on acceptance of inheritance is ambiguous. An author binds rights for the participants of legal relationship to taking of inheritance, refuse over acceptance of inheritance consequences of expiry of the term for inheritance acceptance. As by a written consent of the heirs who accepted the inheritance, the heir who let the time limit elapse may apply for the acceptance of inheritance to the notary office at the place of inheritance opening.

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До проблеми використання комерційної таємниці у господарських відносинах

Author(s): Andrii Olefir / Language(s): Ukrainian Issue: 129/2015

Problem setting. In a market economy and increased competition between enterprises become increasingly important concepts such as business information, trade secrets, know-how, confidential information, the information with restricted access. Given the fact that only one patent protection is unable to meet the needs of researchers, in addition to formal public protection and secured legal means we would like to pay attention at private legal measures, particular, the mode of trade secrets.Recent research and publications analysis. Different aspects of the protection of trade secrets were investigated by specialists such as G. Androschuk, J. Berzhye, I. Davydov, O. Davydyuk, D. Zadyhaylo, P. Kraynov, G. Nikiforov, S. Nikiforov, V. Rubanov, E. Solovyov, L. Hoffman, V. Chaplygin, A. Cherniavsky and others. However, at present there is a lack of comprehensive research of this legal phenomenon, equally useful for innovators and businesses that actively protect corporate security.Paper objective. This article is planned to determine the legal characteristics, structural elements and mechanisms by which the use of trade secrets in business have a positive impact on innovation development and corporate security entities.Paper main body. On the basis of requirements of Art. 505 Civil Code of Ukraine and art. 39 of the TRIPS Agreement we formulated commercial information signs under which it receives legal protection as an object of intellectual property: (1) privacy (real or potential) in the sense that it is as a whole or in a precise combination of aggregate and its components are not generally known or available to persons in the circles that normally deal with such information; (2) commercial value (not purely industrial or industrial), due to its secrecy; this information is unknown to others, which is a commercial interest; (3) the lawful holder of the information provides active special measures (technical, organizational, legal) to preserve secrecy. The objects of trade secrets, depending on the fields may be the following types of information: (1) scientific and technical; (2) management; (3) commercial; (4) financial.At this stage, there is a growing role of know-how, compared with patents, because as their special advantages and drop interest in patenting innovations as an independent factor, as well as economic and legal efficiency mode of trade secrets. Under the know-how necessary to understand the technical, manufacturing, engineering knowledge, experience and skills related to the design, development, manufacture, sale, operation, maintenance, repair, improve technology and other innovative objects which have the status of trade secrets, and a factor of competitiveness entity.Given the fact that the administrative and jurisdictional mechanisms for the protection of trade secrets are more or less clear, we focused on internal corporate events. First, this is consolidation in the basic documents of the entity (statute, founding and collective agreements, work rules on trade secret law) such provision as law on ownership and protection of trade secrets. Second, the order of the head of the entity to approve the list of information to be protected as a trade secret. Third, develop and adopt regulations on trade secrets. Fourth, to approve the regulations on the organization of the documents containing trade secrets. Fifth, to include in a labor agreement (contract) the condition of non-disclosure of trade secrets or employee expected signing of enhancing privacy protection.Conclusions of the research. In order to stimulate innovation growth and protection of corporate security entities we should propose changes to the legislation: (1) secure the definition of the concept of «know-how (secret production)» indicating that the exclusive right to the secret of acting as long as the relation of production secrets operating mode of trade secrets; (2) add Tax Code of Ukraine following types of tax benefits: (a) exemption of small businesses from paying value added goods produced using in-house production know-how (secrets), sold small businesses within the term of exclusive rights to these intellectual activities, but not more than 5 years; (B) exemption of small businesses from paying income tax amounts in the form of sales of products derived from the use of know-how (secrets) in-house production from the beginning of their use, within the term of the exclusive rights to these intellectual activities, but not more than 5 years; (3) adopt by the Cabinet of Ministers exemplary (typical) provision of trade secrets in business organizations, which determine the general procedure for the use of legal, organizational and technical means to ensure the confidentiality of trade secrets.

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Право на житлову нерухомість у складі спадщини

Author(s): L. Leshenko / Language(s): Ukrainian Issue: 129/2015

Problem setting. In the article researched the problems of inheritance of housing of a physical person.Recent research and publications analysis. In accodiance with art. 379 of Civile Code of Ukraine housing of a physical person shall be an apartment house, a flat or other premises intended and suitable for permanent residence.Paper objective. Rights are investigational on a dwelling-house, apartment, other objects of the dwelling real estate, which enter in the complement of inheritance. The analysis of separate types of habitation is done, including apartments, rooms, other dwellings apartments.Paper main body. A question is affected about correlation of rights on a dwelling-house and on lot land which he is located on. As as a result of the conducted research an author interpretation of the article numb. 1225 of Civile Code of Ukraine about succession of the Right to a Land Plot. Persons inheriting houses, other buildings and constructions shall acquire the right to ownership or use of the land plot under the said constructions. Persons inheriting houses, other buildings and constructions shall acquire the right to ownership or use of the land plot necessary for maintenance thereof, unless other size of the land plot is specified in the will.Conclusions. It An area passes to the property or use of heirs, if it was given in accordance with established procedure, scope, certain at a grant, on condition that person did not make a testament in relation to disposing of lot land, proper him on the right of ownership.

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Проблеми реалізації прав потерпілих від злочину осіб на відшкодування шкоди державою

Author(s): Natalija Khmelyova / Language(s): Ukrainian Issue: 129/2015

Problem setting: consider the problems of realization of the rights of victims of crime persons to compensation by the State under the laws of Ukraine. To analyze the current civil legislation of Ukraine, to consider the legislation of the countries in terms of state compensation for damages caused to the victim crime. Suggest a mechanism to implement them.Recent research and publications analysis: some aspects of state compensation for harm caused to the victim crime investigated by many scientists. Thus, O. Vedernikova, O. Kuchinska, A. Mazalov, V. Sawickiy in his scientific studies have concentrated on the investigation of the creation of a state fund damages caused offense. R. Abramovich’s work explored the issue of compensation to the victim harm caused by crime as a legal obligation of the State on the basis of mutual responsibility of the citizen to the state and the state before a national. D. Plachkov investigated features of state obligations arising from causing offense, the specific legal solution of the relations in Ukraine.Paper objective: identifying challenges the rights of victims of crime persons to compensation by the state will set features the state’s obligations arising from causing crime and identify ways to improve the legal regulation of the relations in Ukraine.Paper main body: the current civil legislation of Ukraine stipulates the right of victims of criminal offenses on the restoration of rights violations. But there are cases where recovery is impossible. The reasons for this is that, first, is guilty of a criminal offense a person is insolvent, and the actual recovery of funds it usually extends over many years and is irregular. Secondly, the problem relates stopped criminal proceedings in which a person has committed a criminal offense is not established and the victim is deprived of right to file a civil action. Thirdly, the remedy is not possible victims in unsolved criminal offenses, such as when a person has committed a criminal offense established, but avoids investigation and declared her search does not give the desired result. Gained international experience in the development of a special law should be used in Ukraine, but specific to Ukrainian legislation, because the main problem of state compensation is to finance the payments. To solve this problem, determine the range of persons who will be entitled to compensation, the amount and source of such compensation, as well as a body which has the authority to have compensation from public harm.Conclusions of the research: the proper functioning of the mechanism in practice state compensation of damage caused offense should solve the problem of effective restoration of the rights of persons who are victims of crimes and timely compensation to the victim harm.

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Право учасника на вихід із товариства з обмеженою відповідальністю

Author(s): Hanna O. Urazova / Language(s): Ukrainian Issue: 129/2015

Recent research and publications analysis. In civil law single questions of the right to withdraw from limited liability company were analyzed by such scientists, as: E. Avilov [4], N. A. Belousov [5], V. M. Kravchuk [6], I.V. Spasibo-Fateeva [7], E.O. Sukhanov [8], etc. However some of them still remain debatable, in particular, the legal nature withdraw of the member from limited liability company, its differentiations from other adjacent concepts, the mechanism and legal consequences of implementation of the right to withdraw.Paper objective. The purpose of article is consideration of the right of the member to withdraw from limited liability company through a prism of above-mentioned questions with illumination of positions of the highest judicial authorities and, as a result, the solution of the problems arising in law-enforcement activity.Paper main body. The right of the member to withdraw from limited liability company is characterized by that it: a) unconditional, that is the bases of an exit of the member from company have no legal value; b) is not limited (except a duty beforehand to notify company about withdrawal); c) independent, that is doesn't demand consent of other members; d) the member can carry out it at any time at own will or never use it. We consider that the withdraw the member from limited liability company by submission of the corresponding statement is the unilateral transaction as a result of which, first, the corporate rights and duties between the member and company stop, secondly, as a rule, there are obligations legal relationship on implementation of calculations with such member. In case to withdraw from limited liability company the member has to: 1) beforehand in writing to notify company; 2) to submit the corresponding application addressed to company. The moment withdraw the member from company is date of submission of the statement to withdraw by it to the corresponding official of company or or delivery of the statement to these persons bodies of communication. By the general rule the member of limited liability company in case to withdraw from it has the right to cost of part of property, proportional to its share in the authorized capital of company and to payment of the part of profit received by company in the corresponding year until its withdraw.Conclusions of the research. Summing up, it should be noted that the member can carry out the right to withdraw from limited liability company at any time, with observance of the mechanism determined by the law and statute, by making unilateral transaction that does not require the consent of the general meeting. In turn, a limited liability company must make payments to such member.

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Окремі питання прав та обов’язків сторін договору позички

Author(s): O. Nochovkina / Language(s): Ukrainian Issue: 129/2015

Problem setting. The content of any civil law agreement created by the terms and conditions determined by the parties and agreed between them, as well as the terms that are mandatory according to the regulations of the civil law. Qualifying the agreement from the legal view, the content of the agreement is always characterized as the summary of mutual rights and obligations of counterparties. That is why the problem of correlation of mutual rights and obligations between parties of civil relations interested and still excites scientists’ great interest.Recent research and publications analysis. Such civil law scientists as M.I. Bragynskiy, S.V. Zankovskaya, O.S. Ioffe, S.N. Landkof, D.I. Meyer, G.N. Polyanskaya, V. A. Ryasencev, G.F. Shershenevych studied the balance of rights and duties of parties in the gratuitous use of property agreement (loan agreements). Issues of loan agreement legal regulation are studied by such modern scientist as N.M. Boiko, V.О. Goncharenko, N.A. Dyachkova, E.M. Klyueva, V.M. Kossak, O.M. Solovyov.Paper objective. To analyze the scope and content of rights and duties of loaner and borrower; to disclose any peculiar features of powers of loan agreement parties tacking in account gratuitous nature of such relations; to substantiate the necessity to introduce any amendments to legislation in relation to rights and duties of the studied agreement parties.Paper main body. Peculiarities of rights and duties of loan agreement parties mainly connected to gratuitous nature of such relations. The scope and content of rights and duties of the counterparts according to the agreement depends upon its legal structure (real or consensus). At characterization of the loan agreement parties’ duties we should address as to the regulations of Chapter 60 of Ukrainian Civil Law and to the regulations governing hire (rent) relations. The Clauses of Chapter 58 of Ukrainian Civil Law shall be applied only if the opposite not determined by Chapter “Loan” and does not contradict gratuitous nature of loan relations. The main responsibility of the loaner according to the agreement is the transfer of piece of property to a user for gratuitous usage. At real transaction the loaner performs this function at the moment of agreement conclusion. At consensus model of transaction the duty of the loaner to transfer piece of property arise first of all.Conclusions. In order to improve legal regulation of certain duties of loan agreement parties we should: 1) in legal regulations to determine such terms as “ordinary costs”, “capital repairs” and “minor repairs”; 2) we should clearly indicate which regulations of Clause 58 “Hire(rent)” can be applied to govern the loan agreement. Such improvement will allow to eliminate any disputes at allocation of rights and duties of the parties during insurance of loaned property, at repair of property and reimbursement of repair expenses.

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Бездокументарні облігації як різновид боргових цінних паперів

Author(s): M. Kulyk / Language(s): Ukrainian Issue: 129/2015

Problem Setting. The article is devoted to the allocation of the features of the legal order and legal nature of the book-entry bonds as a variety of the debt securities.Analysis of the recent researches and publications. The book-entry securities and their place among other objects of the civil legal relations from the moment of their appearance on the securities market have been devoted many scientific works and publications both Ukrainian scientists and scientists of other countries, in particular, E. Dyomushkina, L. Dobrynina, V. A. Barulin, D. Stepanov, E. Reshetin, V. L. Yarotsky, G. N. Shevchenko, O. V. Vygovsky, S. Ya. Vavzhenchuk and others.Paper objective. With regard of definitions of the bond as the debt security of the documentary form of issue which has been proposed by the scientists specialized on civil law problems at different times of the development of the teaching on securities and specific features of the book–entry securities as certain rights, it is necessary to allocate peculiarities of the legal order and legal nature of the book-entry bonds as a variety of the debt securities.Paper main body. In the article the different approaches to the definition of the bond have been given. It is specified that the documentary bond as the debt security mediates or establishes relations of the loan between the issuer of the bond and its owner and obligates the issuer to return a certain cash equivalent within a specified period and to pay a certain percentage (profit).On the base of the comparative analysis of the documentary and book-entry securities the content of which includes the certain rights, the features of the book-entry bond as the debt security have been allocated: 1) the content of the right, embodied in the decision on the issue of the securities and in the securities emission prospectus, includes property ( obligation) right of the requirement by its owner to return their nominal value and the agreed interest within the prescribed period; 2) their emission is always public transaction which establishes the legal relations of the loan between the issuer of the bonds and its owner in the form of the electronic document; 3) bonds may be both as registered bonds and also as bearer bonds.Conclusions. Taking into account the current legislation of Ukraine which provides issue of the bonds only in the book-entry form and mentioned above features of the book-entry bonds, the following definition of the bond has been proposed: «The bond is the book-entry debt security determining relations of the loan between the issuer and its owner and certificates the property ( obligation) right of the requirement by its owner embodied in the decision on issue of the securities and securities emission prospectus ( for the state bonds of Ukraine and the conditions of its placement ) to return the owner of the bond its nominal value with the agreed interest within the prescribed period».

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Нікчемність правочинів неплатоспроможного банку

Author(s): V. Krat / Language(s): Ukrainian Issue: 07/2015

Nullity of transactions is the enough widespreadphenomenon in a civil law. One of his displays there is a void transaction of insolventbank.Recent research and publications analysis. To research of nullity inprocedure of bankruptcy, in particular, such researchers applied as Bukovskiy V.,Golmsten A., Grimm D., Krat V., Karnitskiy I., Fedorov V., Shostya F.Paper objective. In modern terms, not having regard to utilitarian necessities,research of specific void transaction of insolvent bank does not come true. As aresult, it determines a necessity to analyses the void transaction of insolvent bankthrough the prism parts of grounds and stage of application void transaction ofinsolvent bank.Paper main body. The article is sanctified to research void transaction ofinsolvent bank. In the article is analyzed void transaction of insolvent bank throughthe prism grounds of void and procedure of her application. Component parts ofgrounds and stage of application void transaction of insolvent bank.Conclusions of the research. the grounds void transaction of insolvent bankconsist of two parts (temporal and essence). Grounds, with that the void transactionof insolvent bank contacts more peculiar for the voidable transaction contested, butnot. As a result it is needed to be determined with that, or expediently in general tocharacterize the transactions of insolvent bank as void. Procedure of application voidtransaction of insolvent bank includes for itself preparatory, informative and the stageof application of consequences void transaction.

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Дія спадкового закону на проблемних територіях: конфлікт юрисдикцій

Author(s): O. Pecheniy / Language(s): Russian Issue: 07/2015

In the article the problems of action of the inherited law are analysed on territories, having litigions legal status. Taking in accodians positions of international law documents, legislation of Ukraine and Russian Federation, the questions of realization and defence of the inherited rights are lighted up. Since March, 2014 in Ukraine because of action of aggressive factors of external and internal character there are territorial changes. In composition Ukraine is territory with litigions status. It above all things is republic Crimea and Sevastopol, separate districts of the Donetsk and Lugansk regions of Ukraine. An author analyses the problems of modern legal status of ARK and Sevastopol. In the field of civil law there was a conflict of Russian and Ukrainian jurisdictions. It negatively will affect property turn, inherited rights. It registers in the article, that annexation of Crimea violates international agreements and norms of international. Including in the complement of RF of Crimea and Sevastopol did not get neither international nor foreign confession, accordingly for other countries and their jurisdictions, including in the field of the inherited right, application on these territories of the Russian legislation will not have law consequences, including in part of relations of property and inheritance. At the same time, on territory of Crimea in certain will be used inherited rights 2 for Ukraine, that also found a reflection in the article. In the case of opening of inheritance to March, 16 of 2014 subject in any case to application civil legislation of Ukraine.

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Умови призначення опікуна (піклувальника), реалізація їх прав та обов’язків

Author(s): Viktoria Nadion / Language(s): Ukrainian Issue: 07/2015

In accordance with the provisions of the Civil code of Ukraine (hereinafter civil code of Ukraine) guardianship is established with the purpose of providing moral and economic rights and interests of minors, minors and adults, who for health reasons are unable to exercise their rights and obligations (article 55 of the civil code). The main difference of the guardianship is in the scope of civil legal duties that the law imposes on the guardians, based on the volume capacity of their wards and their health. Emphasized in the work of the General conditions of the appointment of a guardian). The author distributes them to: – negative conditions are obstacles to the appointment of a person to the role of a guardian. To them include: 1) a person deprived of parental rights if these rights have not been restored (including 1 tbsp. 64 of the civil code); 2) behavior and interests which are contrary to the interests of individuals asobi in need of guardianship or guardianship (including 2 tbsp. 64 of the civil code); 3) prohibiting the appointment of individuals who misuse alcohol napaam (including 3 tbsp. 244 of Ukraine SC); 4) other adverse conditions in accordance with the Rules on guardianship and trusteeship; – positive conditions – these are requirements which must be met by the person wishing to become a guardian (Trustee): 1) the age of majority; 2) full civil legal capacity of natural persons; 3) the consent of a legal guardian and Trustee; 4) relationship between guardian and ward; 5) ability to perform the duties of guardian (Trustee); 6) moral and other personal qualities guardian.

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Безоплатний характер договору позички

Author(s): O. Nochovkina / Language(s): Ukrainian Issue: 07/2015

In the article the problems of action of the inherited law are analysed onterritories, having litigions legal status. Taking in accodians positions of internationallaw documents, legislation of Ukraine and Russian Federation, the questions ofrealization and defence of the inherited rights are lighted up.Since March, 2014 in Ukraine because of action of aggressive factors ofexternal and internal character there are territorial changes. In composition Ukraine isterritory with litigions status. It above all things is republic Crimea and Sevastopol,separate districts of the Donetsk and Lugansk regions of Ukraine.An author analyses the problems of modern legal status of ARK andSevastopol.In the field of civil law there was a conflict of Russian and Ukrainianjurisdictions. It negatively will affect property turn, inherited rights.It registers in the article, that annexation of Crimea violates internationalagreements and norms of international. Including in the complement of RF of Crimeaand Sevastopol did not get neither international nor foreign confession, accordinglyfor other countries and their jurisdictions, including in the field of the inherited right,application on these territories of the Russian legislation will not have lawconsequences, including in part of relations of property and inheritance.At the same time, on territory of Crimea in certain will be used inherited rightsfor Ukraine, that also found a reflection in the article. In the case of opening ofinheritance to March, 16 of 2014 subject in any case to application civil legislation ofUkraine.

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