Pub Date : 2021-06-25DOI: 10.1163/2211906x-10010005
Nataliya M. Оnishchenko, T. I. Tarakhonych, Oleh L. Bohinich
The purpose of the study is to cover the analysis of the legal position of the state in private law relations. Particular attention is paid to the dualistic nature of the state – as a sovereign and as a horizontal participant in civil law relations. The study employs the following methods: dialectical, technical and comparative law. Results of the systematic interpretation suggest that the state does not have the status of a person, which complicates the application of some legal structures. It is concluded that the state is a multi-stage entity that includes the state of Ukraine, the Autonomous Republic of Crimea and territorial communities. This paper will be useful for advocates, judges, academics whose area of expertise is the problematics of the liability law, as well as the issue of harmonisation of the civil legislation of Ukraine with the civil legislation of the EU countries.
{"title":"The State as a Party to Private Law Relations","authors":"Nataliya M. Оnishchenko, T. I. Tarakhonych, Oleh L. Bohinich","doi":"10.1163/2211906x-10010005","DOIUrl":"https://doi.org/10.1163/2211906x-10010005","url":null,"abstract":"\u0000The purpose of the study is to cover the analysis of the legal position of the state in private law relations. Particular attention is paid to the dualistic nature of the state – as a sovereign and as a horizontal participant in civil law relations. The study employs the following methods: dialectical, technical and comparative law. Results of the systematic interpretation suggest that the state does not have the status of a person, which complicates the application of some legal structures. It is concluded that the state is a multi-stage entity that includes the state of Ukraine, the Autonomous Republic of Crimea and territorial communities. This paper will be useful for advocates, judges, academics whose area of expertise is the problematics of the liability law, as well as the issue of harmonisation of the civil legislation of Ukraine with the civil legislation of the EU countries.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47896759","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 : 2021-06-25DOI: 10.1163/2211906x-10010008
Roman Tashian, B. Karnaukh, I. Dzera
The article deals with the problems of the development of property law in the legislation of Ukraine considering the experience of the countries of the European Union (EU). It is emphasised that the development of property law of Ukraine is determined primarily by the European tendencies of harmonisation, convergence and Europeanisation of the rights of EU Member States. The scientific doctrine of EU countries in the field of development and improvement of property law has been researched. The authors extrapolate the experience of regulation of property law in the EU countries on the development of the legal system of Ukraine. The principles of European property law are analysed: these are the principles of specificity, openness and transparency. It is concluded that recognising the existence of an EU system of substantive law will allow introducing appropriate substantive remedies that can successfully exist in addition to legal obligations.
{"title":"Trends in the Development of Property Law: The Civil Law of Ukraine and the Experience of European Union Countries","authors":"Roman Tashian, B. Karnaukh, I. Dzera","doi":"10.1163/2211906x-10010008","DOIUrl":"https://doi.org/10.1163/2211906x-10010008","url":null,"abstract":"\u0000The article deals with the problems of the development of property law in the legislation of Ukraine considering the experience of the countries of the European Union (EU). It is emphasised that the development of property law of Ukraine is determined primarily by the European tendencies of harmonisation, convergence and Europeanisation of the rights of EU Member States. The scientific doctrine of EU countries in the field of development and improvement of property law has been researched. The authors extrapolate the experience of regulation of property law in the EU countries on the development of the legal system of Ukraine. The principles of European property law are analysed: these are the principles of specificity, openness and transparency. It is concluded that recognising the existence of an EU system of substantive law will allow introducing appropriate substantive remedies that can successfully exist in addition to legal obligations.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49220723","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 : 2021-06-25DOI: 10.1163/2211906x-10010003
Anatolii S. Dovgert, V. Kalakura, N. Vasylyna
The article examines the recodification of the Civil Code of Ukraine as a new stage in the codification of civil law in Ukraine, and identifies the presence and sufficiency of certain factors and prerequisites for starting this process. The purpose of this article is to clarify the presence and sufficiency of certain factors and prerequisites for initiating the process of upgrading the Civil Code of Ukraine. In this research, the authors relied on a dialectical method of cognition and the formal-legal method. A large regulatory framework was used to write this article – international treaties, acts of the EU, the Civil Code of Ukraine and other countries. This article may be useful for scholars who study the theoretical foundations of the codification of law in general and the codification of civil law in particular. Ideas of the article can be used by judges, lawyers and practising lawyers in their activities.
{"title":"Codification of Civil Legislation: At the Turn of the Era","authors":"Anatolii S. Dovgert, V. Kalakura, N. Vasylyna","doi":"10.1163/2211906x-10010003","DOIUrl":"https://doi.org/10.1163/2211906x-10010003","url":null,"abstract":"\u0000The article examines the recodification of the Civil Code of Ukraine as a new stage in the codification of civil law in Ukraine, and identifies the presence and sufficiency of certain factors and prerequisites for starting this process. The purpose of this article is to clarify the presence and sufficiency of certain factors and prerequisites for initiating the process of upgrading the Civil Code of Ukraine. In this research, the authors relied on a dialectical method of cognition and the formal-legal method. A large regulatory framework was used to write this article – international treaties, acts of the EU, the Civil Code of Ukraine and other countries. This article may be useful for scholars who study the theoretical foundations of the codification of law in general and the codification of civil law in particular. Ideas of the article can be used by judges, lawyers and practising lawyers in their activities.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44957022","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 : 2021-06-25DOI: 10.1163/2211906x-10010013
Vyacheslav Truba, Lyudmila M. Tokarchuk, Stella Ye. Morozova
The paper provides the results of the analysis of the current state of legal regulation of family relations in Ukraine, and summarises the main problems of the legislation that establishes general principles of regulation of family relations. Particular attention is devoted to the research into the basic principles of family law, and how they are reflected in the Constitution of Ukraine and the Family Code of Ukraine. To assess the compliance of the Family Code of Ukraine with current societal developments, a careful comparison of its provisions with the principles developed by the Commission on European Family Law (cefl) is needed. The family legislation of Ukraine requires detailed monitoring, factoring in the provisions of a questionnaire developed by the Commission. There is a need to introduce a system of national planning, development and adoption by the Verkhovna Rada of Ukraine of the concept of national legal policy.
{"title":"Family Law Trends in Ukraine","authors":"Vyacheslav Truba, Lyudmila M. Tokarchuk, Stella Ye. Morozova","doi":"10.1163/2211906x-10010013","DOIUrl":"https://doi.org/10.1163/2211906x-10010013","url":null,"abstract":"\u0000The paper provides the results of the analysis of the current state of legal regulation of family relations in Ukraine, and summarises the main problems of the legislation that establishes general principles of regulation of family relations. Particular attention is devoted to the research into the basic principles of family law, and how they are reflected in the Constitution of Ukraine and the Family Code of Ukraine. To assess the compliance of the Family Code of Ukraine with current societal developments, a careful comparison of its provisions with the principles developed by the Commission on European Family Law (cefl) is needed. The family legislation of Ukraine requires detailed monitoring, factoring in the provisions of a questionnaire developed by the Commission. There is a need to introduce a system of national planning, development and adoption by the Verkhovna Rada of Ukraine of the concept of national legal policy.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43524167","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 : 2021-06-25DOI: 10.1163/2211906x-10010012
Ganna V. Buiadzhy
At the moment, two trust-like constructions co-exist in the law of Ukraine – the institution of property management and trust property. The article analyses the positions of well-known Ukrainian lawyers on the place of these legal structures in the civil law of Ukraine, as well as possible ways in which they might be further development. The author defines the concepts and researches the features of the institution of property management and trust property, establishes their common and distinctive features, and also emphasises the fundamental difference between it and the institution of trust, which exists in the common law. Particular attention in the article is devoted to defining the concept and specifics of securities management as a specific subject of civil law. The definition of the term ‘securities management contract’ and its characteristics are analysed.
{"title":"Trust-like Constructions in the Law of Ukraine","authors":"Ganna V. Buiadzhy","doi":"10.1163/2211906x-10010012","DOIUrl":"https://doi.org/10.1163/2211906x-10010012","url":null,"abstract":"\u0000At the moment, two trust-like constructions co-exist in the law of Ukraine – the institution of property management and trust property. The article analyses the positions of well-known Ukrainian lawyers on the place of these legal structures in the civil law of Ukraine, as well as possible ways in which they might be further development. The author defines the concepts and researches the features of the institution of property management and trust property, establishes their common and distinctive features, and also emphasises the fundamental difference between it and the institution of trust, which exists in the common law. Particular attention in the article is devoted to defining the concept and specifics of securities management as a specific subject of civil law. The definition of the term ‘securities management contract’ and its characteristics are analysed.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45498293","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 : 2020-06-19DOI: 10.1163/2211906x-00902001
J. Husa
The article asks what is the significance of language for the viability of an endemic mixed legal system. The analysis applies the ecological conceptualisation of endemism and explains how invasive species colonise an endemic mixed system. It is argued that the process of displacing takes place in a manner similar to the process of colonisation of the lifeworld as explained in Habermas’ theory of communicative action. It is also argued that a socio-linguistic infrastructure is needed to ensure the use of minority legal language under the influence of the surrounding bigger legal culture. The argument is tested with four illustrative cases allowing theory building. The cases addressed are Hong Kong, Scotland, Quebec, and Louisiana. The article concludes that language itself is not the cause of legal cultural colonisation. Language, if common to both a smaller and a bigger legal culture, is the medium through which invasive legal species are carried.
{"title":"Language of Law and Invasive Legal Species – Endemic Systems, Colonisation, and Viability of Mixed Law","authors":"J. Husa","doi":"10.1163/2211906x-00902001","DOIUrl":"https://doi.org/10.1163/2211906x-00902001","url":null,"abstract":"The article asks what is the significance of language for the viability of an endemic mixed legal system. The analysis applies the ecological conceptualisation of endemism and explains how invasive species colonise an endemic mixed system. It is argued that the process of displacing takes place in a manner similar to the process of colonisation of the lifeworld as explained in Habermas’ theory of communicative action. It is also argued that a socio-linguistic infrastructure is needed to ensure the use of minority legal language under the influence of the surrounding bigger legal culture. The argument is tested with four illustrative cases allowing theory building. The cases addressed are Hong Kong, Scotland, Quebec, and Louisiana. The article concludes that language itself is not the cause of legal cultural colonisation. Language, if common to both a smaller and a bigger legal culture, is the medium through which invasive legal species are carried.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906x-00902001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47464219","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 : 2020-06-19DOI: 10.1163/2211906x-00902003
T. Curr
This article examines the writ of habeas corpus ad subjiciendum and notes the greater use to which the writ has been put in the United States as compared to England and Wales, as well as an interesting conceptual problem identified in the US case of Hamdi v Rumsfeld. The light shed by this discussion will assist examination of the reasons why habeas corpus ad subjiciendum has become more versatile in the United States than in England. It will be concluded that this difference reflects structural differences across the two jurisdictions, and that the writ in England and Wales – where it will be satisfactorily answered by a showing that someone is in custody pursuant to the order of a court with jurisdiction to confine him – does not need to be expanded beyond its current form, despite the greater American development of the habeas corpus concept.
{"title":"Habeas Corpus, Its Versatility on Both Sides of the ‘Pond,’ and When Right against Remedy Becomes Quixotic","authors":"T. Curr","doi":"10.1163/2211906x-00902003","DOIUrl":"https://doi.org/10.1163/2211906x-00902003","url":null,"abstract":"This article examines the writ of habeas corpus ad subjiciendum and notes the greater use to which the writ has been put in the United States as compared to England and Wales, as well as an interesting conceptual problem identified in the US case of Hamdi v Rumsfeld. The light shed by this discussion will assist examination of the reasons why habeas corpus ad subjiciendum has become more versatile in the United States than in England. It will be concluded that this difference reflects structural differences across the two jurisdictions, and that the writ in England and Wales – where it will be satisfactorily answered by a showing that someone is in custody pursuant to the order of a court with jurisdiction to confine him – does not need to be expanded beyond its current form, despite the greater American development of the habeas corpus concept.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906x-00902003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42230948","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 : 2019-09-25DOI: 10.1163/2211906x-00802001
Lucie Treguier, W. V. Caenegem
This article reviews the laws of France and of Australia in relation to artistic works copyright for useful articles. Australian law applies a different subsistence test to ‘applied art’ than to fine art, whereas French law makes no such distinction, applying the principle of ‘Unité de l’art’. The decision of the High Court of Australia in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] 239 clr 458, which aligns the standard of originality more closely with that applied in European copyright law, invites reconsideration of the Australian approach in favour of a universal standard for all artistic works. A more contemporary understanding of what constitutes ‘art’ points in the same direction. In the result, there is no longer any need to apply a restrictive ‘artistic quality’ standard to works of applied art in Australia. Such an approach better aligns the tests of artistic copyright subsistence in different jurisdictions.
{"title":"Copyright, Art and Originality: Comparative and Policy Issues","authors":"Lucie Treguier, W. V. Caenegem","doi":"10.1163/2211906x-00802001","DOIUrl":"https://doi.org/10.1163/2211906x-00802001","url":null,"abstract":"This article reviews the laws of France and of Australia in relation to artistic works copyright for useful articles. Australian law applies a different subsistence test to ‘applied art’ than to fine art, whereas French law makes no such distinction, applying the principle of ‘Unité de l’art’. The decision of the High Court of Australia in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] 239 clr 458, which aligns the standard of originality more closely with that applied in European copyright law, invites reconsideration of the Australian approach in favour of a universal standard for all artistic works. A more contemporary understanding of what constitutes ‘art’ points in the same direction. In the result, there is no longer any need to apply a restrictive ‘artistic quality’ standard to works of applied art in Australia. Such an approach better aligns the tests of artistic copyright subsistence in different jurisdictions.","PeriodicalId":38000,"journal":{"name":"Global Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/2211906x-00802001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42843885","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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