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Actual problems of improving of current legislation of Ukraine最新文献

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The system of norms on intentional homicide in the Criminal Code of Ukraine as a legal and technical prerequisite for the problems of their qualification according to the totality of crimes 《乌克兰刑法典》中关于故意杀人罪的规范体系是解决故意杀人罪的总体资格问题的法律和技术前提
Pub Date : 2022-06-30 DOI: 10.15330/apiclu.59.131-147
Y. Lomaha
The article is devoted to the study of the problems of the legal and technical description of the signs of premeditated murder in the system of norms about this offense in the Criminal Code of Ukraine in terms of their influence on potential problems of qualification for a set of criminal offenses. The Criminal Code of Ukraine contains a fairly extensive system of legal provisions that regulate responsibility for various types of murder. At the same time, the legislator uses various methods of describing the features of the composition of murders, some of which become nothing more than a legal and technical prerequisite for the emergence of problems in the future criminal-legal assessment of the committed murder in combination with other criminal offenses. A review of the system of norms on intentional homicide in the Criminal Code of Ukraine will help to determine the justification of the legislator’s use of those techniques of legal technique that can create potential problems of law enforcement. The purpose of the article was to highlight the system of norms on intentional homicide in the Criminal Code of Ukraine and the peculiarities of its normative regulation as a legal and technical prerequisite for the problems of qualification of intentional homicides by the totality of crimes. An attempt will be made in the article to prove the possibility of simplifying the description of the features of the composition of murders as a means of eliminating the problems of their adequate criminal-legal assessment. The information presented in the work gives grounds for the conclusion that the legislator’s use of unsuccessful legal and technical techniques in the construction of the articles of the Special Part of the Criminal Code of Ukraine, which contain a system of norms on responsibility for intentional homicide, creates potential problems in the application of these norms, calling into question the need to qualify the crimes committed offenses under a set of crimes. In this regard, it seems appropriate to introduce such changes to the Criminal Code of Ukraine that would remove doubts about the need to apply the general rule on murder, provided for in the relevant part of Art. 115 of the Criminal Code of Ukraine in combination with the norm on another criminal offense committed by a person. Such a legislative decision will make it possible to adequately qualify everything committed even if the attitude to the consequences in the form of death on the part of the guilty person was careless. In this case, the person may additionally be incriminated by the norm provided for in the relevant part of Art. 119 of the Criminal Code of Ukraine.
本文致力于研究在乌克兰《刑法》中关于有预谋谋杀罪行的规范体系中对有预谋谋杀的迹象的法律和技术描述问题,因为它们对一系列刑事犯罪资格的潜在问题产生了影响。乌克兰的《刑法》包含一个相当广泛的法律规定体系,规定对各种谋杀的责任。同时,立法者使用各种方法描述谋杀构成的特征,其中一些方法只不过成为未来对已犯谋杀罪与其他刑事犯罪相结合的刑法评估中出现问题的法律和技术前提。对乌克兰《刑法》中关于故意杀人罪的规范制度进行审查将有助于确定立法者使用那些可能造成执法问题的法律技术的理由。该条的目的是强调《乌克兰刑法》中关于故意杀人的规范制度及其规范性规定的特点,这些规定是根据罪行总数确定故意杀人资格问题的法律和技术先决条件。本文将试图证明简化谋杀构成特征的描述的可能性,作为消除对其进行适当刑事法律评估的问题的一种手段。工作中提供的资料使我们有理由得出这样的结论,即立法者在构建《乌克兰刑法》特别部分的条款时使用了不成功的法律和技术手段,其中包含一套关于故意杀人责任的规范,这在适用这些规范方面造成了潜在的问题,使人怀疑是否需要将所犯的罪行限定为一套罪行。在这方面,似乎应当对《乌克兰刑法典》进行这种修改,以消除对是否需要适用《乌克兰刑法典》第115条有关部分所规定的关于谋杀的一般规则以及关于一个人所犯的另一项刑事罪行的规范的怀疑。这样一项立法决定将有可能对所犯的一切行为进行适当的限定,即使罪犯对死亡形式的后果的态度是粗心大意的。在这种情况下,该人可根据《乌克兰刑法》第119条有关部分所规定的准则被另外定罪。
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引用次数: 0
Innovation as an object of civil relationships 作为客体的创新民事关系
Pub Date : 2022-06-30 DOI: 10.15330/apiclu.59.84-97
A. Stasiv
This article explores innovations as objects of civil legal relations and their impact on the contract. The contract is a universal form of regulation of these relations. The analysis of scientific concepts on the objects of legal relations became the basis for the conclusion about the priority of pluralistic approaches to the objects of legal relations in general. Regarding innovation, the article argues for an inexhaustible list of them.The author argues that innovation must be technological in nature. Therefore, goods and services produced by technological innovations cannot be innovations. Products can be innovations if they have new or improved qualities.On the basis of the analysis of special legislation, it is concluded that the characteristics of innovations stipulated therein are of an economic rather than legal nature. However, some of them, such as novelty and practical suitability for improving the industrial, economic or social sphere, are the basis for the formation of legal characteristics of innovations.From the point of law view, innovation is a complex integrated legal concept, which includes several objects of intellectual property rights. It is substantiated that innovations include, first of all, objects of industrial property rights, but not only them. Innovations consist from the objects of intellectual property rights, but differ from them in the moment of their creation. Objects of intellectual property rights acquire these attributes on the basis of receipt of supporting documents or other grounds established by law, while innovations acquire a special status by virtue of confirmation of the fact of their practical introduction into production.
本文探讨了作为民事法律关系客体的创新及其对合同的影响。契约是规范这些关系的普遍形式。对法律关系客体的科学概念的分析,成为对一般法律关系客体的多元途径优先性的结论的基础。关于创新,这篇文章提出了一个无穷无尽的清单。作者认为,创新本质上必须是技术性的。因此,技术创新产生的产品和服务不可能是创新。如果产品具有新的或改进的品质,就可以称为创新。在对专项立法进行分析的基础上,认为专项立法规定的创新特征是经济性质的,而不是法律性质的。然而,其中一些特征,如新颖性和改善工业、经济或社会领域的实际适用性,是创新法律特征形成的基础。从法学角度看,创新是一个复杂的综合法律概念,它包含了多个知识产权客体。实证表明,创新首先包括工业产权客体,但不仅包括工业产权客体。创新由知识产权客体构成,但在创造之时又与知识产权客体不同。知识产权客体在获得证明文件或法律规定的其他理由的基础上获得这些属性,而创新由于其实际投入生产的事实得到确认而获得特殊地位。
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引用次数: 0
The concept and composition of war crimes in the context of international criminal law 国际刑法背景下战争罪的概念和构成
Pub Date : 2022-02-28 DOI: 10.15330/apiclu.58.47-56
M.K. Zubanskiy
The article conducts a comprehensive study of the legal category of «War Crimes» in the context of the provisions of international criminal law and international regulations. To date, the concept of war crime has not received clear legal regulation in the provisions of international law, but has become widespread and applied in practice a list of acts that are recognized as war crimes under the Rome Statute of the International Criminal Court and the Geneva Convention.A full analysis of the category of «war crime» is impossible without studying the legal features of war crimes based on the provisions of international humanitarian law and the security doctrine of the international community, through the prism of the practice of international law.War crimes are characterized by the significance of those features of a criminal offense that are irrelevant in ordinary crimes and in war crimes allow to correctly classify a socially dangerous act and determine the rules of international law applicable to a person committing a war crime. A special feature of the subject of the crime is the presence of a special subject of war crimes, namely combatants or non-combatants. From a subjective side a military crime is accomplished consciously and with the intentional form of guilt. Marked, that during the estimation of publicly-dangerous act as military crime an important value has research of signs of perfect act through the prism of signs of soldiery crimes, that is certain the norms of Genevan convention and also Roman charter of the International criminal court. It is thus summarized that as a military crime the feasance of international or domestic conflict comes forward a subject or by the persons of act, that consists in gross, mass violation of norms of international humanitarian law and also in gross violation of rights and freedoms of persons, that participate battle actions or are in the district of realization of battle actions, equated with them.
本文在国际刑法和国际规则的背景下,对“战争罪”的法律范畴进行了全面的研究。迄今为止,战争罪的概念尚未在国际法的规定中得到明确的法律规定,但它已得到广泛应用,并在实践中适用了《国际刑事法院罗马规约》和《日内瓦公约》所承认的战争罪的一系列行为。如果不从国际法实践的角度,根据国际人道主义法的规定和国际社会的安全原则研究战争罪的法律特征,就不可能对“战争罪”类别进行全面分析。战争罪的特点是,刑事犯罪的那些特征的重要性与普通罪行和战争罪行无关,这些特征使人们能够正确地对社会危险行为进行分类,并确定适用于犯下战争罪行的人的国际法规则。犯罪主体的一个特点是存在战争罪的特殊主体,即战斗人员或非战斗人员。从主观角度看,军事犯罪是一种有意识的犯罪,具有故意的犯罪形式。指出,在军事犯罪的公共危险行为的判断中,通过军人犯罪的迹象来研究完美行为的迹象具有重要的价值,这与日内瓦公约的规范和国际刑事法院罗马宪章的规范是一致的。因此总结说,作为军事罪行,国际或国内冲突的行为是行为主体或行为者的行为,构成对国际人道主义法准则的严重、大规模违反,也构成对参加战斗行动或在实现战斗行动范围内的人的权利和自由的严重侵犯。
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引用次数: 0
Specific features of the protection of rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent 外币等值货币义务违约时债权人权益保护的具体特点
Pub Date : 2022-02-28 DOI: 10.15330/apiclu.58.20-26
Y. Fomenko
In the course of the research the normative-legal analysis was carried out and a number of general theoretical and practical problems of the national legislation of Ukraine on protection of the rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent were identified. The purpose of the research is to analyze the general theoretical and practical problems of the national legislation of Ukraine regarding the protection of the rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent. The right to protect one’s rights and interests is the basis of civil law and the guarantee of the proper performance of contractual obligations. Non-fulfillment or improper fulfillment of contractual obligations are the causes of disputes in the field of civil law. This scientific article examines some ways to protect the rights and interests of the creditor in case of breach of monetary obligations in foreign currency. The advantages and disadvantages of such methods are analyzed.The study established the lack of a legally defined procedure for accrual of penalty in a monetary obligation with a foreign currency equivalent and proposed to improve the law on protection of the rights and interests of the creditor in case of breach of a monetary obligation with a foreign currency equivalent. The use of foreign currency in monetary obligations will be used more and more frequently by the parties, which makes it necessary to regulate the use of foreign currency in monetary obligations. The results of the study can be used in lawmaking and law enforcement activities in the implementation of the creditor’s protection of their rights and interests in case of breach of monetary obligations with a foreign currency equivalent.
在研究过程中,进行了规范法律分析,并确定了乌克兰国家立法中关于在以等值外币违反货币义务的情况下保护债权人权利和利益的一些一般理论和实践问题。研究的目的是分析乌克兰国家立法中关于以外币等值的货币义务违约时保护债权人权益的一般理论和实践问题。权益保护权是民法的基础,是合同义务正当履行的保证。合同义务的不履行或不正当履行是民法领域纠纷产生的原因。本文探讨了外币货币义务违约时保护债权人权益的几种途径。分析了这些方法的优缺点。这项研究确定,在具有等值外币的货币义务中,缺乏法律规定的应计处罚程序,并建议改进关于在违反具有等值外币的货币义务时保护债权人权利和利益的法律。外币在货币义务中的使用将越来越频繁,因此有必要对货币义务中的外币使用进行规范。研究结果可用于立法和执法活动中实施债权人在违反等值外币货币义务时对其权益的保护。
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引用次数: 0
The Concept And Legal Nature Of Amendments To The Contract 合同变更的概念和法律性质
Pub Date : 2021-01-17 DOI: 10.15330/apiclu.55.64-77
N.S. Shymanska
The article examines the concept and legal nature of amendments to the contract. It is established that this legal phenomenon due to the rapid development of market relations is becoming widespread. The meaning of the concept of «change» and its legal nature are analyzed. An exhaustive list of possible options for exercising the right to amend the contract has been made. According to the results of scientific research of different points of view of civilians of different epochs on the concept of «change of contract terms», the own definition of the mentioned concept is formulated and it is proposed to make appropriate changes to the current Civil Code of Ukraine. After all, the perfect legislative regulation of certain relations begins with the consolidation of their definition, in order to have a common understanding of the concept. In our opinion, the lack of a legislative definition of the term “change of contract terms” is a negative phenomenon, as it leads to unequal understanding of the concept by parties, substitution of concepts, violation of the rights of parties, different case law, which is based on the results of consideration of the category of cases related to amendments to the contract. Therefore, we believe that the CC of Ukraine should be amended by including Article 650 1 «The concept of changing the terms of the contract», by which we mean the process, active behavior of the party (parties), which aims to create new or edit existing terms of the contract to bring it in accordance with certain life circumstances, legal norms, as well as its optimization, the purpose of which is to obtain by the party (parties) a certain positive result of property and / or non-property nature. The implementation of these changes will make it possible to avoid the above-mentioned negative consequences in the future and will ensure the introduction of uniform case law in resolving disputes related to amendments to the contract.
本文探讨了合同变更的概念和法律性质。可以确定,由于市场关系的快速发展,这种法律现象正在变得普遍。分析了“变化”概念的含义及其法律性质。关于行使修改合同的权利的各种可能选择,已经列了一份详尽的清单。根据不同时期平民对“合同条款变更”概念的不同观点的科学研究结果,制定了自己对上述概念的定义,并建议对现行的乌克兰民法典进行适当的修改。毕竟,对某些关系的完善立法规制首先要从对其定义的巩固开始,以便对概念有一个共同的认识。我们认为,缺乏对“合同条款变更”一词的立法定义是一种消极现象,因为它导致了当事人对这一概念的不平等理解、概念的替代、当事人权利的侵犯、不同的判例法,这是基于对合同修改相关案例类别的考虑结果。因此,我们认为乌克兰的CC应该被修改,包括第650条“改变合同条款的概念”,我们指的是当事人(各方)的过程,积极行为,旨在创建新的或编辑现有的合同条款,使其符合某些生活环境,法律规范,以及其优化。其目的是由当事人获得某种财产和/或非财产性质的积极结果。实施这些修改将有可能避免今后出现上述消极后果,并将确保在解决与合同修订有关的争端时采用统一的判例法。
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引用次数: 0
Socially Dangerous Consequences Of Criminal Offenses In The Field Of Public Procurement 公共采购领域刑事犯罪的社会危险后果
Pub Date : 2021-01-17 DOI: 10.15330/apiclu.55.120-129
A.M. Cheredarchuk
In the article the author analyzes the national legislation, scientific research and the results of law enforcement activities of law enforcement agencies in the field of public procurement. It has been established that the opacity and inefficiency of mechanisms for controlling the public procurement process leads to the use of corruption schemes to embezzle budget funds, legalize and misappropriate them by unscrupulous officials and, as a consequence, to «shadow» the national economy. In the current conditions of the country’s development, corruption is perhaps the most negative consequence of criminal acts in the field of public procurement. Corruption in the public procurement system, as in any other area, is associated with the exercise of power, distribution or redistribution of material resources or funds, a phenomenon that is not new or even national. Another clear example of the consequences of public procurement crime is the threat of unfair competition. Among the abuses committed by public procurement participants, the greatest degree of security threat is conspiracy of participants. A conspiracy is an agreement between two or more participants in a procurement procedure aimed at setting the price of a competitive bidding offer or a price offer at artificial or non-competitive levels with or without the knowledge of the customer. The main danger of fictitious entrepreneurship is property damage to legal entities and individuals, the state, which, in turn, is expressed in concealing the facts of prohibited activities, illegal conversion of non-cash into cash, creating preconditions for tax evasion and other illegal goals, promoting legalization ( money laundering) of funds obtained by criminal means, etc.
本文对公共采购领域的国家立法、科学研究和执法机关执法活动的结果进行了分析。已经确定的是,控制公共采购过程的机制的不透明和低效率导致利用腐败计划侵吞预算资金,使不道德的官员将其合法化和挪用,结果是“影子”国民经济。在国家目前的发展条件下,腐败可能是公共采购领域犯罪行为最消极的后果。与任何其他领域一样,公共采购制度中的腐败与权力的行使、物质资源或资金的分配或再分配有关,这一现象并不新鲜,甚至也不是全国性的。公共采购犯罪后果的另一个明显例子是不公平竞争的威胁。在公共采购参与方的滥用行为中,最大程度的安全威胁是参与方的共谋。串谋是指在采购程序中,两个或两个以上的参与者之间达成协议,目的是在客户知情或不知情的情况下,设定竞争性投标报价的价格或人为的或非竞争性的报价。虚拟创业的主要危险是对法人实体和个人、国家的财产损失,而这又表现在隐瞒被禁止的活动事实、非法将非现金转换为现金、为偷税漏税等非法目的创造先决条件、促进通过犯罪手段获得的资金合法化(洗钱)等。
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引用次数: 1
Domestic And American Model Of Sanctions For Criminal Violations In The Economic Field: Critical Approach By A Comparativist 国内和美国的经济领域犯罪制裁模式:一个比较主义者的批判方法
Pub Date : 2021-01-17 DOI: 10.15330/apiclu.55.142-158
D.V. Kamenskyi
The article critically reviews the models of criminal sanctions introduced in Ukraine and the United States for economic criminal offenses. It is emphasized that the meaning of the concept of punishment is inextricably linked to the fundamental category of criminal liability, which means the restrictions provided by criminal law for the exercise of the rights and freedoms of a person for committing a criminal offense. It has been noted that most American courts do not practice “linear” philosophy in terms of sentencing, but on the contrary, take the whole set of unique facts and circumstances with legal significance into account in each criminal case. It has been established that this approach partially resembles the content of paragraph 3, part 1 of Art. 65 of the Criminal Code of Ukraine: the court imposes punishment, taking into account severity of the crime, identity of the perpetrator as well as mitigating and aggravating circumstances. It has been also established that in comparison with the American domestic practice of sentencing in general and for economic crimes in particular seems unreasonably humane, such that it is not able to fully implement the purpose of punishment, declared in Art. 50 of the Criminal Code, and therefore, such as objectively unable to restrain the manifestations of illegal behavior in the economic sphere. The large- scale humanization of criminal liability for economic encroachments carried out by the Ukrainian legislator at the end of 2011, combined with the decriminalization of certain acts and the replacement of imprisonment with fines in sanctions of other norms, has intensified such negative trend. Third, the analysis of the content and application of the federal Penal Code demonstrates not only the advantages of this act of the federal criminal law, but also its individual shortcomings. There is a lot of criticism against this document’s provisions in terms of sentencing for economic crimes. The main reason for criticism is the purely arithmetic relationship between the amount of punishment and the amount of material damage caused by such a crime. Based on the results of elaboration of the American experience in terms of normative provision and practice of application of punishments for economic crimes, a position has been expressed on the expediency of introducing a model of limited formalization of punishments in Ukraine.
本文批判性地回顾了乌克兰和美国对经济犯罪实施刑事制裁的模式。有人强调,惩罚概念的含义与刑事责任这一基本类别有着不可分割的联系,这一基本类别是指刑法对实施刑事犯罪的人行使权利和自由所规定的限制。人们注意到,美国法院在量刑方面大多不采用“线性”哲学,而是将每一刑事案件中具有法律意义的全部独特事实和情况考虑在内。已经确定,这种做法部分类似于《乌克兰刑法》第65条第1部分第3款的内容:法院在考虑到罪行的严重程度、犯罪者的身份以及减轻和加重的情况下施加惩罚。人们还确定,与美国国内的量刑做法相比,对经济犯罪特别是经济犯罪的量刑似乎是不合理的人道,因此,它不能充分执行《刑法》第50条所宣布的惩罚目的,因此,在客观上无法限制经济领域的非法行为的表现。乌克兰立法者在2011年底对经济侵犯的刑事责任进行了大规模的人性化,加上对某些行为的非刑事化以及在其他规范的制裁中以罚款取代监禁,加剧了这种消极趋势。第三,对《联邦刑法典》的内容和适用进行分析,既揭示了《联邦刑法典》的优点,也揭示了其个别不足。对于该文件在经济犯罪量刑方面的规定,有很多批评。批评的主要原因是,这种罪行的量刑与造成的物质损失之间存在纯粹的算术关系。根据对美国在对经济犯罪实施惩罚的规范规定和实践方面的经验进行阐述的结果,已经表示了一种立场,即在乌克兰实行一种有限的惩罚正式化模式的权宜性。
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引用次数: 0
General And Limited Partnerships: Features Of Legal Regulation In Ukraine And European States 普通合伙和有限合伙:乌克兰和欧洲国家法律法规的特点
Pub Date : 2021-01-17 DOI: 10.15330/apiclu.55.130-142
V. Anatiichuk
The article focuses on one of the corporate forms of entrepreneurial activity - general and limited partnerships. Limited liability companies and joint stock companies are among the most popular legal forms of companies. However, the development of Ukrainian legislation moves in the direction of creating a system of different forms of entrepreneurship, which are aimed at different needs and interests of their founders. Such forms of entrepreneurship exist and operate successfully in Europe. Carrying out a comparative analysis in the article allows the author to confirm the existing thesis that there is no single vector in European countries concerning the legal status of these partnerships. Some states define these partnerships as legal entities, others - as a form of joint business activity. It is emphasized in the article that the European legal space is characterized by the use of the concept of defective legal entity. The author perceives any of these European approaches, but points to the need for its consistent reflection in all legal acts that determine the status of general and limited partnerships. The article supports the assertion formed in the scientific literature about the criticism of domestic legislation on general and limited partnerships. Such criticism concerns to those norms of Ukrainian legislation, which use untypical provisions for legal entities. All existing researches are directed to one aim - to develop a single vector in the regulation of general and limited partnerships. They should be regulated either as legal entities or as forms of joint activity on the basis of an agreement. The author states that the main attention in granting general and limited partnerships the status of a legal entity should be focused on clear boundaries between the liability of a legal entity and the subsidiary liability of its members. The article supports leading scholars’ critical assessment of the legislative definition of general partnerships as an association of persons for joint business activities. Based on the analysis of the definitions of a general partnership in EU law (for example, France), it is proposed to define a general partnership as an association of persons engaged in business activities through joint contributions of all participants (full partners) and their subsidiary liability for the company’s obligations. This wording indicates that the partnership itself carries out business activities, and not its members. The author also does not deny the possibility of introducing general and limited partnerships as associations of persons on the basis of an agreement on joint activities. At the same time, it is noted that all norms of national legislation should consistently adhere to such concept.
本文重点讨论了创业活动的一种公司形式——普通合伙和有限合伙。有限责任公司和股份公司是最受欢迎的公司法律形式。然而,乌克兰立法的发展方向是建立一种不同形式的企业制度,以满足其创始人的不同需要和利益。这种形式的企业家精神在欧洲存在并成功运作。在文章中进行比较分析,使作者能够确认现有的论点,即在欧洲国家,关于这些伙伴关系的法律地位没有单一的载体。一些州将这些合伙企业定义为法律实体,而另一些州则将其定义为一种联合商业活动形式。文章强调,欧洲法律空间的特点是瑕疵法人概念的使用。作者认识到这些欧洲方法中的任何一种,但指出需要在决定一般合伙和有限合伙地位的所有法律行为中一致地反映这些方法。本文支持科学文献中形成的关于对普通合伙和有限合伙的国内立法的批评的断言。这种批评涉及乌克兰立法的规范,这些规范对法律实体使用了非典型的规定。所有现有的研究都指向一个目标- -在一般和有限合伙关系的管理中发展一个单一的载体。它们应当作为法律实体或根据一项协定作为联合活动的形式加以管制。发件人指出,给予普通合伙和有限合伙法人实体地位的主要注意应集中在法人实体的责任与其成员的附属责任之间的明确界限。本文支持著名学者对普通合伙作为共同经营活动的人的协会的立法定义的批判性评估。在分析欧盟法律(如法国)对普通合伙的定义的基础上,建议将普通合伙定义为通过所有参与者(完全合伙人)的共同出资以及他们对公司义务的附属责任而从事商业活动的人的协会。这种措辞表明合伙企业本身进行商业活动,而不是其成员。撰文人也不否认有可能根据一项关于共同活动的协议,将一般合伙和有限合伙作为个人的社团。同时指出,所有国家立法规范都应始终坚持这一概念。
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引用次数: 0
Еffectiveness Of Protection The Rights Of The Parties Of Lease Agreement Еffectiveness保护租赁协议双方的权利
Pub Date : 2021-01-17 DOI: 10.15330/apiclu.55.33-44
D. Polnyi
The paper deals with the concept of measures to protect the rights of the parties of lease agreement. It is stated that in case of violation, non-recognition or challenge of the rights of lease agreement, the person against whom the illegal act was committed has the right to defend his rights independently or seek protection from one of the authorized bodies. It is emphasized that protection consists of measures of various nature. The author proved that the effectiveness of protection depends on the correctly chosen method of protection and proof of the circumstances to which the person points. It is proved that it is important to set the right goal of personal protection and choose measures aimed at achieving this goal. These arguments are confirmed by judicial practice and scientific doctrine. It is argued that non-jurisdictional safety methods, in particular self-defense, measures of operational influence, may be applied if they are provided or prohibited by law and are sufficient. Also jurisdictional safety methods must be applied when enforcement is required, or safety methods must be applied only by an authorized body. Based on the analysis of judicial practice, the criteria for the effectiveness of safety methods are established and the limits of application of safety methods are determined. Measures of judicial protection of the rights of the parties of the lease agreement has been studied. It is concluded that the limits of application of the method of protection are reflected in the legality, objectivity of application, depend on the existence of appropriate grounds and conditions, the nature of the violation, non-recognition, challenge.
本文探讨了租赁合同当事人权利保护措施的概念。有人指出,在违反、不承认或质疑租赁协议权利的情况下,遭受非法行为侵害的人有权独立捍卫其权利或向授权机构之一寻求保护。它强调,保护包括各种性质的措施。作者论证了保护的有效性取决于正确选择保护方法和举证当事人所指出的情况。实践证明,确立正确的人身保护目标和选择实现这一目标的措施是十分重要的。这些观点为司法实践和科学理论所证实。有人认为,如果法律规定或禁止非管辖权的安全方法,特别是自卫和具有行动影响的措施,并且这些方法足够充分,则可以适用。此外,当需要强制执行时,必须应用管辖安全方法,或者安全方法必须仅由授权机构应用。在分析司法实践的基础上,确立了安全方法有效性的标准,确定了安全方法的适用范围。对租赁合同当事人权利的司法保护措施进行了研究。结论认为,保护方法适用的限制体现在合法性、适用的客观性、是否存在适当的理由和条件、侵犯的性质、不承认、质疑等方面。
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引用次数: 0
The Subject Of A Land Lease Agreement In Conjunction With A Water Facility Located On It 土地租赁协议的主体及其上的水利设施
Pub Date : 2021-01-17 DOI: 10.15330/apiclu.55.45-55
L. Miskevych
The publication is devoted to the study of legal and doctrinal trends in solving the issue of the subject of a land lease agreement in complex with a water object located on it. The author makes a reservation that the difficulty of clearly defining the subject of the studied treaty is due not only to the absence in the civil doctrine of a unanimous approach to understanding the essence of the subject of the treaty, but also to the natural inseparability of the water body with the land located on it. In the article, the author found that the legislative modelling of the contract, which mediates modern relations of use of the water body, was preceded by scientific studies of the features of ownership and use of this natural resource in conjunction with the land on which it is located. The author established the practical and doctrinal significance of using one contractual design for the lease of a water body and a land plot located under it. Such a legislative approach positively solves the problematic issues of the moment of acquisition of the right to lease a water object and the moment of transfer of the use object to the tenant, since the legislator connects these points with the time of state registration of the right to lease a land plot. The doctrinal effect of the application of this treaty model is manifested in the possibility of defining this contract in the system of civil law contracts, and affects the scope of application of civil, land and water legislation to the lease relations of a water body. In the publication, the author established that both natural resources - a land plot and a water object, together constitute the subject of a land lease agreement in conjunction with a water object located on it, formally correspond to the qualifying criteria of the thing as the subject of a hire (lease) agreement. The author concludes that the name of the contract model, simultaneously with the time of occurrence of the right to lease a land plot and a water object located on it, and the mandatory inclusion of a water body passport in such an agreement, make it possible to conclude that in the lease agreement of a land plot in complex with the water object located on it, it is not necessary to indicate technical data (volume and area) of the water body, since they are presented in its passport.
该出版物致力于研究解决土地租赁协议主体问题的法律和理论趋势,其中包括位于其上的水上物体。笔者提出的保留意见是,所研究条约的主体之所以难以明确界定,不仅是因为民事学说中对条约主体的本质缺乏统一的认识,而且还因为水体与其上的土地具有不可分割的自然性质。在文章中,作者发现,调解现代水体使用关系的合同的立法模式是在对这种自然资源及其所在土地的所有权和使用特征进行科学研究之前形成的。确立了水体及其下地块采用一种契约式设计的现实意义和理论意义。这种立法途径积极地解决了水物租赁权的取得时刻和使用物向承租人转让时刻的问题,因为立法者将这两点与土地租赁权的国家登记时间联系起来。该条约模式适用的理论效应表现在民法合同制度中对该合同进行界定的可能性,并影响到民事、土地和水立法对水体租赁关系的适用范围。在该出版物中,作者确定,自然资源-一块土地和一个水物,连同位于其上的一个水物一起构成土地租赁协议的主体,在形式上符合作为租用(租赁)协议主体的事物的资格标准。作者得出结论:契约模型的名称,同时发生时间的租赁一块土地和水对象位于它,和水体的强制包含护照在这样一个协议,可以得出这样的结论:在租赁协议的土地情节复杂对象位于它,没有必要显示技术数据(体积和面积)的水体,因为他们提出了护照。
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引用次数: 0
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Actual problems of improving of current legislation of Ukraine
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