Pub Date : 2022-03-15DOI: 10.24031/1992-2043-2021-21-6-7-29
E. Sukhanov
On the basis of the various legal regimes of real, obligation, corporate and intellectual rights historically established in continental European private law, the article substantiates the conventionality of the terms “digital property” (“digital assets”) and “digital rights”, which in reality are not a new type objects of civil (property) turnover, requiring the creation of a special civil law regime, and a technical method of fixing property rights defined by law (mainly obligations and corporate), which is possible only with the help of special computer technologies within known information systems. “Cryptocurrency” should not displace official means of payment, and its use in circulation is subject to significant restrictions, the presence of which prevents the establishment of a legal regime for non-cash payments for it.
{"title":"ON THE CIVIL LEGAL NATURE OF “DIGITAL PROPERTY”","authors":"E. Sukhanov","doi":"10.24031/1992-2043-2021-21-6-7-29","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-6-7-29","url":null,"abstract":"On the basis of the various legal regimes of real, obligation, corporate and intellectual rights historically established in continental European private law, the article substantiates the conventionality of the terms “digital property” (“digital assets”) and “digital rights”, which in reality are not a new type objects of civil (property) turnover, requiring the creation of a special civil law regime, and a technical method of fixing property rights defined by law (mainly obligations and corporate), which is possible only with the help of special computer technologies within known information systems. “Cryptocurrency” should not displace official means of payment, and its use in circulation is subject to significant restrictions, the presence of which prevents the establishment of a legal regime for non-cash payments for it.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"106 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80730397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-15DOI: 10.24031/1992-2043-2021-21-6-194-210
George Gretton is Emeritus Professor at University of Edinburgh. Professor Gretton was a member and chairman of the Scottish Law Commission, which prepared the reform of the Scottish law of property, obligations and inheritance. Emeritus Professor George Gretton’s interests lie in the fields of commercial law, property law, trusts, succession, insolvency law, comparative law and legal history.
{"title":"INTERVIEW WITH GEORGE GRETTON","authors":"","doi":"10.24031/1992-2043-2021-21-6-194-210","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-6-194-210","url":null,"abstract":"George Gretton is Emeritus Professor at University of Edinburgh. Professor Gretton was a member and chairman of the Scottish Law Commission, which prepared the reform of the Scottish law of property, obligations and inheritance. Emeritus Professor George Gretton’s interests lie in the fields of commercial law, property law, trusts, succession, insolvency law, comparative law and legal history.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80741225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-15DOI: 10.24031/1992-2043-2021-21-6-211-248
The present materials contain translations of two momentous cases tried by the German Supreme Court concerning dealings via online platforms. These translations, given the typical rarity of supreme courts’ opinions on the matter, allow an interesting insight into issues that any courts would face by trying such cases.
{"title":"MATERIALS FOR A STUDY OF DEALINGS VIA DIGITAL PLATFORMS: GERMANY","authors":"","doi":"10.24031/1992-2043-2021-21-6-211-248","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-6-211-248","url":null,"abstract":"The present materials contain translations of two momentous cases tried by the German Supreme Court concerning dealings via online platforms. These translations, given the typical rarity of supreme courts’ opinions on the matter, allow an interesting insight into issues that any courts would face by trying such cases.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"37 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76956675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-15DOI: 10.24031/1992-2043-2021-21-6-30-58
E. Domshenko
The article provides an overview of some legal institutions, which can be applied for the purpose of asset shielding. The advantages and disadvantages of using contractual instruments of a simple partnership, an investment partnership are studied. Types of partnership are examined in conceptual framework of asset partioning doctrine, when legal entity is not established. The protective properties are associated with existence of fiduciary responsibilities. The protective effect is based on the limitation of owner’s discretion and coordination of property management.
{"title":"ASSET SHIELDING WITHOUT CREATING A L EGAL ENTITY. SIMPLE PARTNERSHIP AND INVESTMENT PARTNERSHIP","authors":"E. Domshenko","doi":"10.24031/1992-2043-2021-21-6-30-58","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-6-30-58","url":null,"abstract":"The article provides an overview of some legal institutions, which can be applied for the purpose of asset shielding. The advantages and disadvantages of using contractual instruments of a simple partnership, an investment partnership are studied. Types of partnership are examined in conceptual framework of asset partioning doctrine, when legal entity is not established. The protective properties are associated with existence of fiduciary responsibilities. The protective effect is based on the limitation of owner’s discretion and coordination of property management.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"37 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72760412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-15DOI: 10.24031/1992-2043-2021-21-6-99-134
N. V. Shcherbak
The purpose of this article is to study the essential features of the civil law regime of objects of copyright and related rights, which makes it possible to specify the conditions (criteria) for the protection of the results of intellectual activity at different time periods of historical development and within different legal systems. Moreover, the use of standards for the protection of objects will be analyzed not only in continental copyright and related rights systems, but also in common law countries, where a work is treated not as an idea, but as a thing (commodity) localized in space.
{"title":"EXISTENTIAL FEATURES OF THE CIVIL LEGAL REGIME OF OBJECTS OF COPYRIGHT AND RELATED RIGHTS","authors":"N. V. Shcherbak","doi":"10.24031/1992-2043-2021-21-6-99-134","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-6-99-134","url":null,"abstract":"The purpose of this article is to study the essential features of the civil law regime of objects of copyright and related rights, which makes it possible to specify the conditions (criteria) for the protection of the results of intellectual activity at different time periods of historical development and within different legal systems. Moreover, the use of standards for the protection of objects will be analyzed not only in continental copyright and related rights systems, but also in common law countries, where a work is treated not as an idea, but as a thing (commodity) localized in space.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"14 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86148234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-20DOI: 10.24031/1992-2043-2021-21-5-301-337
Materials include commented translation of four important judgments of Swiss Federal Court capturing the essential details of contemporary Swiss understanding of leasing with regard to insolvency, form of contract, property law statuses and security title retention, sham character and other issues.
{"title":"MATERIALS TO STUDYING THE LEGAL NATURE OF LEASING: SWITZERLAND","authors":"","doi":"10.24031/1992-2043-2021-21-5-301-337","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-5-301-337","url":null,"abstract":"Materials include commented translation of four important judgments of Swiss Federal Court capturing the essential details of contemporary Swiss understanding of leasing with regard to insolvency, form of contract, property law statuses and security title retention, sham character and other issues.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"92 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83403173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-20DOI: 10.24031/1992-2043-2021-21-5-256-300
V. Slyshchenkov
The western Law and Development movement engaged in legal assistance to the socioeconomic development of the third world states as well as the postsocialist countries by the Western patterns includes two different stages, the first one continues about a decade and a half from the beginning of the 1960s, the second lasts approximately twenty years starting the beginning of the 1990s. The article provides a detailed consideration of the history and the achieved results, the content of the activities as well as the theoretical sources of the movement in the jurisprudence, the sociology and the economics. The Law and Development movement encourages and assists in the legal reception from the Western legal orders. Taking into account the distinction between the political and the doctrinal legal reception, the movement acts within framework of the former because it uses the legal regulations as an instrument for achievement of extra-legal purposes. Informed by this approach, the legislation serves the present-day policy whereas the law, which is a special social regulator establishing freedom in a social life, does not find a proper expression in the legislation, a statute compliant with the law is not the legislator’s reference point. Hence the political legal reception does not contribute to a successful legal development, establishment of legal values and the rule of law. This predetermines a failure of the Law and Development movement as a whole. The true outcome of the movement is an impulse of some kind to the further independent legal development in the interested recipient countries.
{"title":"LAW AND DEVELOPMENT MOVEMENT IN LIGHT OF CONTRADICTIONS OF LEGAL RECEPTION","authors":"V. Slyshchenkov","doi":"10.24031/1992-2043-2021-21-5-256-300","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-5-256-300","url":null,"abstract":"The western Law and Development movement engaged in legal assistance to the socioeconomic development of the third world states as well as the postsocialist countries by the Western patterns includes two different stages, the first one continues about a decade and a half from the beginning of the 1960s, the second lasts approximately twenty years starting the beginning of the 1990s. The article provides a detailed consideration of the history and the achieved results, the content of the activities as well as the theoretical sources of the movement in the jurisprudence, the sociology and the economics. The Law and Development movement encourages and assists in the legal reception from the Western legal orders. Taking into account the distinction between the political and the doctrinal legal reception, the movement acts within framework of the former because it uses the legal regulations as an instrument for achievement of extra-legal purposes. Informed by this approach, the legislation serves the present-day policy whereas the law, which is a special social regulator establishing freedom in a social life, does not find a proper expression in the legislation, a statute compliant with the law is not the legislator’s reference point. Hence the political legal reception does not contribute to a successful legal development, establishment of legal values and the rule of law. This predetermines a failure of the Law and Development movement as a whole. The true outcome of the movement is an impulse of some kind to the further independent legal development in the interested recipient countries.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82237951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-20DOI: 10.24031/1992-2043-2021-21-5-233-255
Patrice Jourdain
The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.
{"title":"THE PRINCIPLES OF CIVIL LIABILITY (continuation)","authors":"Patrice Jourdain","doi":"10.24031/1992-2043-2021-21-5-233-255","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-5-233-255","url":null,"abstract":"The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"42 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80802501","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-20DOI: 10.24031/1992-2043-2021-21-5-133-165
Y. Monastyrsky
On the basic of historic construction the legal sense of earnest regulation is considered having been adopted from the past word by word. This doesn’t amount to main objective implementation of this remedy to make contractual conditions of future agreement binding on parties subject to the broad autonomy of will. Legal provisions on earnest don’t correspond to categories of “liability”, “unilateral transaction”. The regulation should promote such tools as “compensations form release of obligation”, “offer”, “penalty”, “preliminary contract”. At present the institute of earnest isn’t operational and applicable only within the market of residential real estate so far. The efforts were made to present the renewed legal provisions on earnest as normative basis of this legal instrument having long spread over the limits of ordinary obligation security measure.
{"title":"THE EARNEST IN THE RUSSIAN CIVIL LAW","authors":"Y. Monastyrsky","doi":"10.24031/1992-2043-2021-21-5-133-165","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-5-133-165","url":null,"abstract":"On the basic of historic construction the legal sense of earnest regulation is considered having been adopted from the past word by word. This doesn’t amount to main objective implementation of this remedy to make contractual conditions of future agreement binding on parties subject to the broad autonomy of will. Legal provisions on earnest don’t correspond to categories of “liability”, “unilateral transaction”. The regulation should promote such tools as “compensations form release of obligation”, “offer”, “penalty”, “preliminary contract”. At present the institute of earnest isn’t operational and applicable only within the market of residential real estate so far. The efforts were made to present the renewed legal provisions on earnest as normative basis of this legal instrument having long spread over the limits of ordinary obligation security measure.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86391313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-20DOI: 10.24031/1992-2043-2021-21-5-166-192
N. V. Shcherbak
The article discusses the problem of allocating ideal shares in exclusive copyright. The legal and dogmatic design of exclusive rights allows you to establish not only a joint, but also share right and this is fully consistent with the stimulating function of exclusive rights. The paper analyzes various theoretical models of exclusive right, and concludes that the lack of ideal shares in exclusive right becomes a stumbling block for commercializing the results of intellectual activity and leads to paralysis of civil turnover.
{"title":"IDEAL SHARE IN EXCLUSIVE COPYRIGHT: UTOPIA OR REALITY?","authors":"N. V. Shcherbak","doi":"10.24031/1992-2043-2021-21-5-166-192","DOIUrl":"https://doi.org/10.24031/1992-2043-2021-21-5-166-192","url":null,"abstract":"The article discusses the problem of allocating ideal shares in exclusive copyright. The legal and dogmatic design of exclusive rights allows you to establish not only a joint, but also share right and this is fully consistent with the stimulating function of exclusive rights. The paper analyzes various theoretical models of exclusive right, and concludes that the lack of ideal shares in exclusive right becomes a stumbling block for commercializing the results of intellectual activity and leads to paralysis of civil turnover.","PeriodicalId":35992,"journal":{"name":"Harvard Civil Rights-Civil Liberties Law Review","volume":"210 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78253088","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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