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The article analyzes the issues related to the responsibilities of heirs in intestate succession.Proposed obligations imposed on the heirs specified in the Civil Code divide into two types: general and special. This will give the opportunity to share the responsibilities that will be binding, in the first case, for naaslednikov by law, and to the heirs under the will. In the second case, the duties of which are specific only to the heirs under the will.
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A controversial aspect regarding paternity in South African law is whether or not South African Courts are empowered to compel an adult or a minor to submit to DNA/blood tests. The High Courts were not unanimous in this regard, and thus the issue required clarification by the Supreme Court of Appeal (SCA). An opportunity presented itself for the SCA to not only address the issue of the use of DNA/blood tests in paternity matters, but several other issues surrounding paternity. The judgment by the SCA has, it is argued, unfortunately resulted in more questions than answers.
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Subject of the article is an analysis of restrictions/limitations regarding members of the management board towards a company with a limited liability, specified by the Commercial Companies Code (Kodeks Spółek Handlowych - KSH), in case of company’s bankruptcy. In the article there are elaborated limitations of members of the management board resulting from the Commercial Companies Code i.e. limitations resulting from competence of the management board, necessity of receiving consents of other members of the board, and situations of conflict (e.g. conflict of interests). A right to control of the management board, which is pointed by some authors as limitation of the management board or members of the management board, was not classified as such limitation of members of the management board, since a control cannot be treated as limitation. In the article, limitations of members of the management board were divided into limitations concerning performed function as a member of the management board and those resulting from personal rights of members of the management board. Then there was done an analysis of the code limitations regarding members of the management board on the background of provisions of the Bankruptcy and Rehabilitation Law (Prawo upadłościowe i naprawcze) on the stage of a proceeding securing the bankruptcy proceeding and further in the case of declaration of bankruptcy open to an arrangement (upadłość układowa) and in the case of declaration of bankruptcy involving liquidation company’s assets (upadłość likwidacyjna). This analysis leads to the conclusion, that the Bankruptcy and Rehabilitation Law can be qualified as other than the Code (KSH) source (other source of law) of limitations of members of the management board. It should be noted that members of the management board in case of declaration of bankruptcy lose or can lose the possibility of management of company’s assets in part or in whole, despite they continue to perform their functions as members of the management board. The analysis indicates that sources of limitations of members of the management board towards a limited liability company, are not only those pointed in article 207 of the Commercial Companies Code, but also other limitations resulting or which may result e.g. from the Bankruptcy and Rehabilitation Law. Thus, a catalog of limitations of members of the management board in their relations with a company pointed in article 207 of the Commercial Companies Code is not full or exclusive.
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Unfortunate employment of the terms ‘commercial margin’ and ‘collecting fees other than commercial margin for accepting goods for sale’ within Article 15.1 (4) of the Combating Unfair Competition Act 1993 has led to a number of paradoxes within the case law. Focusing on the aim of the regulation the courts are of the opinion that the amounts by which sale price is reduced (through rebates, bonuses and other mechanisms of price fixing), thus affecting the ‘commercial margin’, should be deemed to be fees ‘other than commercial margin’, while retention of these amounts should be deemed to amount to ‘collecting’ such fees, even though no value flow is present. This interpretation is rightly criticised in the legal literature, which calls for refraining from the application of Article 15.1 (4) (in favour of other regulations) where it would lead to determining that fees other than commercial margins are at the same time fees contained in the commercial margin.
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The article discusses the role of the performance bond, referring in particular to the issue of public procurement of construction works. The paper presents the two basic instruments which can secure the contract - a performance bond issued by a bank and a performance bond issued by an insurance company. The author analyzes in detail the nature and structure of these forms of protection. In the final part of the study the risk of abuse by the Employer in the application of rights resulting from these bonds is indicated. Barriers to their use as seen from the perspective of the Contractor are also mentioned.
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An article presents an studies of possibilities to register an alias as a trademark. The analyses of the doctrine and cases of Polish and European jurisprudence rise the following conclusions. Firstly, there is no special regulations which allows registrations alias as a trademark. As the consequence that’s the jurisprudencia who creates their own regulations. Secondly, we can observe insinuation of two legal systems – protecting the personal rights in civil law and trademarks. This can be problematic cos the jurisdiction of the court. Thirdly, the alias can also become distinctive per se which in consequence allowed to protect them as the surname as a trademarks in some circumstances. As far, we need to take in consideration the process of commercialization of this kind of personal rights which gives them the economic value.
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The issue concerning the ways of the eligibility and the legal status of public roads has already been the subject of studies, including forming an overview of the positions of the jurisprudence. This development to a minor extent relate to the issues of spatial boundaries of public road’s line. In this respect interesting seems to be primarily a matter of whether there are objective criteria with a standard or technical nature or technology, that the appointment of the spatial limits of the road lane. This issue, in addition to cognitive aspects is also important for the practice of application of the law i.a. inusing the space above the road line for the purposes of advertising banners. This issue also covers buildings and other objects located above the road line. It is also important in view of the fact, that a new Act amending certain laws in connection with the strengthening of landscape protection tools came into force. This article is an attempt to define the principles of and the basis for determining the spatial borders of public road’s line
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Presented gloss refers to the Constitutional Court’s Judgement of 8 July 2014, signature act K 7/13, concerning the taxation of revenue from free of charge employee benefits. Their essence is associated with one hand with a policy of incentive to efficient performance at work, on the other increment received by an employee of a particular dimension. The Constitutional Court in its judgement clearly shows all the obligatory criteria as a condition sine qua non for the taxation of free of charge employee benefits. Firstly, the benefits need to be properly interpreted and classified as those from the scope of the employment relationship. Secondly, free non-wage benefits must fulfill additional conditions pursuant to which there is taxable income. This commentary taking into account the previous resolutions of the Supreme Administrative Court and other judgement relating to the taxation of income from free of non-wage employee benefits.
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Article analyses abstract principle of first demand guarantee and limitation of its problematic application. First of all, article defines and analyses concept and content of abstract principle according to international commerce practice, legal doctrine, Lithuanian law and finally how it shows in commerce practice. The further analysis concentrates on grounds of limitation of abstract principle not only from guarantor’s perspective, but also from debtor’s perspective, when he is trying to stop guarantor to fulfil his payment obligation under first demand guarantee using provisional court measures. The analysis of this article based on international commerce practice provided by URDG rules and UNCITRAL convention, newest researches in legal doctrine, but also Lithuanian legal regulation and case law on this question. Analysis shows that abstract principle is a necessary requirement for proper work of first demand guarantee. Despite this, abstract principle as the other principles in legal system cannot be absolute and especially in private commerce law there is a necessity for a restriction of its application.
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This article highlights some issues of representation of a lawyer as a representative in civil proceedings, the problems of possible modernization of the Bar activity in civil proceedings are characterized and researched. The estimation of the proposed changes to the Constitution of Ukraine concerning the representation of a lawyer in civil proceedings is given. The author studied the views of scientists on specific issues of representation in civil proceedings.
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The article aims at presenting distributive justice conceptions. They constitute a measure according to which public authority makes a fair distribution of goods and burdens among members of society. The author demonstrates seven justice conceptions to analyze their advantages and disadvantages. The conceptions are as follows: -equal distribution -to each according to his needs -to each according to his results -to each according to his contribution -to each according to his credit -to each according to his social position -to each according to which he is entitled to by law In the light of the law, the most appropriate conception is the final one, related to the classical definition of justice formulated by Ulpian (“Iustitia est constans et perpetua voluntas ius suum cuique tribuendi”). It is of “blank” character (a regulation referring to another rule) and therefore its assessment depends finally on the assessment of the content of the legal rules it refers to. This conception is beneficial for judges relieving them of personal responsibility for giving a specific sentence and shifting the responsibility onto legislator. However, the judge’s loyalty to this conception cannot be absolute, cannot justify each decision that is correct from the formal point of view. It discontinues when the letter of the law is transformed into “legislative unlawfulness” (gesetzliches Unrecht).
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Limitation period is the time for an aggrieved person to apply to court. Notwithstanding that aggrieved person after the limitation period has lapsed does not lose substantial right, such a person does lose a right to apply to court for protection. Thus in the situation when a limitation period has lapsed substantial and procedural rules are tightly intertwined. On the one hand, this situation is about some requirements for bringing an action to the court; on the other hand, the loss of judicial protection significantly decreases the value of the substantial right. That is why the improper application of limitation period potentially can threaten all fundamental human rights. Limitation period is a traditional issue in private law. That is why many scholars have addressed it. T. M. Vakhonyeva, V. V. Luts’, O. V. Pushnyak, V. I. Tsikalo,O. V. Shovkova are amongst them. Nevertheless the issue has never been analyzed systematically through the perspective of European Convention on Human Rights and Fundamental Freedoms.The main objective of the paper is to analyze the limitation period from the standpoint of its congruence to different provisions embodied in European Convention on Human Rights and Fundamental Freedoms. First of all the author pays attention to ECtHR case-law concerning the right to a fair trial. In that context limitation period is deemed to constitute a restriction of a right to a fair trial. But such a restriction is not in itself inconsistent with the Convention. In many cases such a restriction is justified first and foremost for the sake of providing legal certainty, which is one of the important aspects of rule of law. Also the author addresses the problem of congruence of limitation period to some other provisions of ECHR, such as: prohibition of discrimination, right to respect for private and family life, protection of property.Limitation period constitute a restriction of a right to access to court. Such a restriction is justified if(a) it does not restrict a right to access to court in such a way that the very essence of that right is nullified;(b) it has a legitimate purpose; (c) the proper balance between the purpose aimed and the restriction is struck. In order for the limitation period to be proportionate with the aim of providing legal certainty,the following requirements should be met: (i) the limitation period is not unduly short; (ii) the application of limitation period is foreseeable; (iii) the application of limitation period is flexible (i.e. it is capable of taking into account different individual characteristics of each case).
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The article is devoted to clarifying the specific performance of the hereditary contract after the death of the transferor. Described ways of designation of the person which controls the implementation of the hereditary contract. Criticism expressed over the position voiced in the legal literature about the possibility of such designation by means of the Agency agreement. The work substantiates the conclusion about the extension of the duties of the executor’s responsibility for controlling the execution of the hereditary contract. The above-mentioned is determined by the duty of the executor to solicit the debtors of the testator to fulfill their obligations according to the Section 1290 of the Civil Code. Defined the clause of a limited effect of designation of the special person to control over execution of the duties of the purchaser after the death of the transferor as a method of enforcement of the performance of the hereditary contract. Proposed to define the powers of the controlling person directly in the hereditary contract, separately providing the right to demand the termination of hereditary contract in case of non execution or improper fulfilment of their duties by the purchaser. The work denies the possibility of setting the condition of hereditary contract, that the purchaser receives ownership of the property not only after the death of the transferor, but also after execution of all the instructions of the transferor, that discloses to the notary by submitting the relevant documents. Execution by purchaser of his duties after the death of the transferor is characterized by specific peculiarities. Thus the General rule concerning personal acceptance by the creditor of the debtor’s performance of his duties (Paragraph 1 of the Section 527 of the Civil Code) could not be applied to the above-mentioned legal relationships. In addition, the execution of certain instructions of the transferor after his death makes it impossible for early execution of the purchaser’s obligations (Section 531 of the Civil Code), in particular, before the transferor’s death. Also the rule of the Section 545 of the Civil Code couldn’t be applied, whereby when accepting the obligation,the creditor should, upon the request of the debtor, issue him the receipt for the execution in part or in full. The transferor is deprived of the opportunity to issue a receipt because of their death, and the person who controls the execution of the hereditary contract, is not a party to the contract, which similarly makes him disable to issue the receipt.
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Many of modern legal concepts have their roots in the jurisprudence of Ancient Rome. The concept of novation is one of them. That is why it is vitally important to analyze the main provisions concerning novation that were stated in ancient first-hand sources in order to improve modern theory on that matter.The concept of novation is one of the classic issues in the realm of law of obligations. Thus much attention was paid to it, and especially to the treatment of novation in Ancient Rome. The problem of novation was addressed in the writings of such scholars as Yu. Baron, K. von Czyhlarz, H. Dernburg,D. V. Dozhdyev, D. D. Hrimm, J. A. Pokrovs’kyy, B. Windscheid, and others.The main objective of the paper is to provide an overview of the main provisions stated in ancient Roman first-hand sources on the matter of novation and to suggest some practical implications that might be entailed from those provisions.In Ancient Rome novation is deemed to be a substitution of one obligation with another, or, in other words, a transformation of debt into some new obligation. The conclusion is made that both the primary and the new obligation had to be unilateral. Thus the author states that bilateral obligation was not able to be turned into unilateral one through the novation. Also the elements of the novation are defined. They are: (a) the existence and validity of the former obligation; (b) the existence and validity of the new obligation; (c) the difference between the former and the new obligation; (d) clearly an undoubtedly expressed intention of the parties to renew the obligation. Special attention is paid to the problem of novation under some special condition. The legal consequences of invalidity of the former or new obligation are also discussed.Despite the seeming similarity of the definitions of novation in Ancient Rome and in modern jurisprudence, the Roman concept of novation was much broader, especially because it encompassed the substitution of parties and the transformation of the obligation due to commencement of action.
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The article concerns the accident issue at school analysed in terms of civil liability. It contains a synthetic analysis of educational law, civil law, and labour law regulations relating to the responsibility of the three major parties: the school (the body responsible for the school), the teacher and the student. It is an attempt to answer the question of who, when, and to what extent and on what basis the party shall be financially liable for damages arising from an accident at school.
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The power in the rule of law is to be exercised by the governing bodies, which are provided for in the constitutional arrangements and in special provisions. The government together with the Prime Minister shall exercise the power in the state, by its political program is realized. The provisions regarding family policies that are entered in the Labor Code have to step up to the target, the attractiveness of the enlargement of the family, the starting of closer relationships between parents, greater involvement of the father in child rearing. Apart from all the favorable privileges, employers will continue to set the objection young women who are not working in the labor market throughout the year (if they make such a decision ). If such parental powers contribute to the enlargement of the family? If the woman who returns from an extended maternity leave, have a labor warranty? So give asked questions in this regard impetus to deeper reflection and reflection on the role of the family in the state.
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The problem of the presented article concerns practical issues related to the intra-Community acquisition of a vehicle and its eligibility for the correct position of the Combined Nomenclature. The issues discussed in the article are of such importance that it often comes to the situation, in which the customs authorities and administrative courts take different decisions and judgments based on the same facts and law.Regarding the fact, the author has made an attempt to describe actions of such authorities and courts, as well as taxpayers liable to pay excise duty if the vehicle calls for CN heading 8703, although there are reasonable grounds for the vehicle to call for CN heading 8704, resulting in considerable legal consequences for the taxpayer, i.e. it does not bear the tax liability.
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This article deals with problems of codification and Europeanisation of private law in accordance with the newest knowledge of law science in the Slovak Republic. Both processes of codification and Europeanisation of private law are closely connected and mutually overlapped. Respecting particularities in development of private regulation, the main requirements and tasks connected with the process of development of the Civil Code are analysed. The article deals further with requirements to terminate temporary legislation in private law, with requirements to get higher level in approximation of private law and European Union law. The article finally analyses the basic aspects in creation of new, modern and optimal monistic approach to the fundamental conditions and institutions of private law.
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The author of this paper presents analysis of the new and old sources of civil law which stay in an inseparable connection with the principles and core values of the legal system. In particular normative value human dignity. The crisis of traditional sources of the civil law, the effect of which is growth of the diversity and complexity of its sources poses a new challenge for today's lawyers - an important role in the reconstruction of the unity of the whole system of civil law for the effective fulfillment of the functions assigned to this branch of law, especially in the face of dynamic development and new innovative changes that have recently would have been unthinkable in that field of law.
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