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Journal articles on the topic 'Civil law, Obligation, Creditor'
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1
Yuzhanin, Nikolay V. "Auxiliary law enforcement actions of the creditor in obligations." Current Issues of the State and Law, no. 20 (2021): 792–99. http://dx.doi.org/10.20310/2587-9340-2021-5-20-792-799.
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We analyze some of the creditor’s law enforcement actions in obligations, which in the theory of civil law have become accepted to be called creditor obligations. We dispute the thesis that it is possible to classify as obligations those actions that help in the implementation of creditor’s subjective right and are part of the mechanism for its implementation. We provide an analysis of a number of creditor’s necessary actions, which act auxiliary to the basic action to implement the subjective right in obligation. We propose to abandon the concept of “obligation” in relation to those creditorial en-forcement actions, the failure of which entails sanctions that are not related to liability measures. We establish that in the obligation within the framework of mutual subjective rights and obligations, there are creditor actions that do not contain leading economic significance, but have an auxiliary nature, ensure the fulfillment of the main economic obligations arising in the basic commodity-money relationship. The creditor’s law enforcement actions include not only the acceptance of performance, but also other organizational actions of an actual nature, which, ultimately, are aimed at fulfilling the obligation by both parties. The non-fulfillment of the creditor's law enforcement actions does not entail direct responsibility for their non-fulfillment, only indirect possibilities of influencing the counterparty are established. The indirect means of influencing the creditor include the delay in fulfilling the obligation as a measure of operational impact.
2
Butsan, Marharyta. "Performance of obligations in modern civil law." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 414–17. http://dx.doi.org/10.36695/2219-5521.1.2020.82.
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The article considers the notion of performance. Treaty obligations were the most common in the civil turnover. Their performance depends to a large extent the stability of the economy and society as a whole. Of particular importance are norms of civil legislation implementing the Treaty obligation. They are used daily in practical activities of legal entities and citizens. The performance of an obligation – it is always a process that takes some period of time and consists of a series of actions of the debtor and the creditor. Debtor proposes the execution, the creditor accepts it. The article studies scientific approaches with respect to conditions of contractual obligations. practice shows that most contracts are careless, do not contain the necessary conditions to realization of the interests of the parties, do not include measures to ensure contractual obligations. During the execution of such contracts often have complications, different interpretations by the parties to the same conditions, and as a result, there has been a massive failure by the parties of their responsibilities, resulting in numerous conflicts. The most important task of modern legal science and practice – the creation of legal mechanisms, allowing most effectively to ensure the proper performance of contractual obligations and to compensate the injured party for the loss caused by their failure or improper performance. Mechanism of performance of the obligation is the mutual interest of the parties. In determining the obligations a list of specific actions that the debtor is obliged to make in favor of the lender, is limited to the indication of the transfer of property, performance of work and payment of money. Undoubtedly, the parties rely on bilateral compliance with the obligations under the contract, but obviously there are cases when under any circumstances one of the parties does not fulfill its obligations. Performance of the obligation should also be understood as certain acts by the debtor (or refraining from doing,) that is the obligation of the debtor. In this regard, it should be noted that the lender has the right to demand fulfillment of the obligation, but the debtor is involved in such actions. Moreover, under proper performance to understand the performance of an obligation by an appropriate person at the appropriate time a particular person under equal circumstances. The real is the performance of specific obligations, which is reflected in the implementation of certain actions.
3
Lugmanov, Radik R. "Сivil law information obligations under French law". Pravovedenie 64, № 2 (2020): 245–69. http://dx.doi.org/10.21638/spbu25.2020.203.
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The article is the result of a study of the doctrine and practice of information obligations under French law, which initially did not recognize any broad information obligations. The development of this institution has been slow with the accumulation of doctrine and practice. There has been a gradual realization that solidarity, fairness and good faith require disclosure of information relevant to the decision to enter into a contract or implement a contract. Particularly noticeable was the expansion of information obligations in professional relationships. Much attention is paid to the doctrinal problem of defining information obligations using the necessary elements: material and psychological. Only the simultaneous presence of these elements on the debtor’s side and the absence of an inexcusable mistake on the creditor’s side testify to the presence of an information obligation. It is noted that one of the peculiarities of information obligations is the fact that, as a rule, the creditor learns about it when the obligation has already been violated. These examples of legislative regulation and court practice demonstrate the complexity of interaction between the institutions of error and fraud and the legal category of information obligations. The author of the article proposes to get acquainted with the generally accepted division of information obligations by chronological criterion and by the degree of content of the obligation. In general, it should be noted that this study will be useful for the beginning of the formation of the doctrine of information obligations, which is currently absent in Russian civil law.
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Pohrebniak, Volodymyr. "Transfer of right to claim in obligation (cession)." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 206–9. http://dx.doi.org/10.36695/2219-5521.1.2020.41.
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The article is devoted to consideration essence and order of realization of transfer of right to claim in relative legal relationships (cession). It is defined that in modern juridical literature a cession is principally considered as transfer of claims of a primary creditor (assignor) to a new creditor (assignee) based on a contract. Appropriate result is achieved by separate relationship in which primary creditor is obliged to transfer his right to claim to another person. A result of appropriate juridical operation is complete or partial change of the creditor in primary relationship.
 It is defined that paragraph 1 of part 1 of article 512 of Civil Code of Ukraine demonstrate that cession is characterized by such signs as: 1) is a volitional act of a person to who belong civil right to claim; 2) is a dealing-nature act. In view of these factors numerous scientist consider contract as main cause for cession.
 The approach according to which a contract of cession is consensual and recognized as concluded in moment when its participants reconcile all determinative conditions including an object of cession is the most widespread in modern juridical literature. At the same time the author substantiates that appropriate persons can conclude cession contract in real form by using construct of previous contract. It is defined that cession provides singular succession. The acquirer can get creditor’s rights only if it belong to creditor. Singularity also means that acquirer gets only appropriate subjective civil right as a separate object but not all civil rights and obligations of assignor how does it take place for example in succession after a testator.
 Considering appropriate problem in context of such categories as “foreclosure” and “compulsory alienation” the author defines it possible to increase categorical composition of civil law by term “compulsory cession” which means conduction of cession forcefully, for example by court order which doesn’t provide creditor’s assistance.
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Marina, Venetskay. "Expansion of party replacement designs in the commitment in the civil law of Ukraine." Yearly journal of scientific articles “Pravova derzhava”, no. 31 (2020): 298–305. http://dx.doi.org/10.33663/0869-2491-2020-31-298-305.
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The article is devoted to improving the legal regulation of the replacement of a party to an obligation in the civil legislation of Ukraine, taking into account the needs of civilian turnover and economic practice. The reasonability of the additional settlement of issues of reimbursement of contracts for the assignment of claims and compensation for additional costs associated with such a concession, as well as the introduction of the institution of the assignment of contracts into Ukrainian civil law, is argued. The lack of a direct indication of the law on the remuneration of a claim for assignment of a claim has led to the emergence of a number of interpretations of such a transaction as being non-remunerative. Meanwhile, according to the basic provisions of the Civil Code of Contract - the contract is repayable, unless otherwise stipulated by the contract, law or does not follow from the essence of the contract. In addition, the consequence of concluding a deed of assignment claim is the acquisition by the new creditor of property rights that are property, so the free acquisition of property must be considered as a gift, an indication that is absent in the legislation. Unknown to the contract law of Ukraine and the civil institute of contract withdrawal, which is sufficiently widespread in economic practice and is regulated by European legislation. . The meaning of a contract cancellation is to transfer from one person to another the rights and obligations under the contract with a third party, ie it is a simultaneous combination of the cancellation of claims and the transfer of debt. It is necessary to extend the methods (structures) of transfer of debt through the introduction in Ukrainian civil law of the methods known since Roman times, in particular, the expropriation as a separate construction of the replacement of the debtor in the obligation, which occurs on the initiative of the creditor and on the basis of the agreement concluded between such credit and the new debtor in the absence of the need to obtain such consent from the original debtor; and intercession as a construct, when a new debtor is joined to the obligation (which may be divisible) and each of them must fulfill the obligation in its share.
6
Trezubov, Egor, and Ekaterina Rusakova. "THE EVOLUTION OF SURETYSHIP IN ROMAN AND RUSSIAN LAW OF OBLIGATIONS." Herald of Omsk University. Series: Law 17, no. 1 (2020): 82–93. http://dx.doi.org/10.24147/1990-5173.2020.17(1).82-93.
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Introduction. The authors analyzes the historical development of the suretyship in the law of Ancient Rome and Russia. It is generally accepted that traditional private law institutions, which are also means of securing obligations, penetrated into Russian law through double reception – after their development in German and French law. Meanwhile, the suretyship was not created by Roman lawyers from scratch, it replaced the barbaric ways of securing the interests of the creditor based on hostage, debt bondage and others. The same methods evolved in ancient Russian law into an independent institution of bail. Purpose. The purpose of this study is to generalize and systematize knowledge about the historical development of the institution of suretyship in Roman private law and Russian law. Despite a long evolution, in modern Russian law the suretyship loses its accessory features that have been formed for more than two millennia, and acquires signs of abstractness. In this regard, it is important to determine the constitutive features of the legal relationship of surety to identify the trajectory of the subsequent development of the institution of personal securing of obligations. Methodology. In carrying out this study, general scientific and private law methods were used, including the system-structural method, methods of functional and historical-legal analysis. Results. Personal security of civil obligations arose in the legal space from the artificial creation of a correal plurality on the side of the debtor, which quickly outlived itself in view of the impossibility of achieving the goal of security – the proper guaranteeing effect for the lender. With the development of private law in Rome, the evolution of the institution of suretyship is visible – from the verbal forms of confirmation of third party debt and sureties for it, implemented by citizens in the form of sponsio, to the late form of fideiussor’s financial responsibility, tending to the modern model of guarantee. Russian suretyship develops from the universal institute of bail, mentioned even in the sources of law of the princely period. The bail was applied in all kinds of, not only private law relations, and was used as a general basis for third party liability. With the complication of civil relations, bail also develops as a means of personal security of the obligation, and by the beginning of reception of Roman law, the Russian suretyship naturally reached similarities with personal security in the sources of this reception – German and French law of obligations. The Russian suretyship of the XIX century becomes an independent obligation, the parties to which are the creditor and the surety, while the surety is not a co-borrower in the secured obligation and does not fulfill the main obligation as an intercession, the right of claim from the creditor passes to it, and the guarantor's liability, presumed as subsidiary, is realized only in cash. The further development of Russian suretyship, unfortunately, indicates the use of more pro-creditor approaches, which was caused by the unsatisfactory contractual discipline of the parties to civil legal relations. Conclusion. In the process of its evolution, surety remains the most used, and, in fact, the only universal way of personal securing obligations, despite the permanent attempts of scientists and law enforcement to introduce other means into civil relations. Recognizing the special significance of the suretyship, it is important to preserve the traditional constitutive features of this institution.
7
Reetz, Pia. "Mora creditoris im römischen Recht." Tijdschrift voor rechtsgeschiedenis 83, no. 3-4 (2015): 392–420. http://dx.doi.org/10.1163/15718190-08334p03.
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The German civil code (BGB) establishes that the creditor defaults when he delays his acceptance, regardless of the question of fault. Since the creditor is still obliged to pay the debtor, the creditor only harms himself by not accepting performance. On the other hand, it is stated in the special section of the BGB that the emptor is not entitled to reject performance. With regard to the question as to whether such an obligation was known in classical Roman law, the source material remains ambiguous. But the relevant fragments can be systematized to the extent that they aim to balance the conflicting interests of creditor and debtor. In comparing the solution according to classical Roman law with the legal position of the BGB, the interplay between the provision on creditor’s delay and the emptor’s duty to accept performance result in a legal solution which is quite similar to the balance of interests found in classical Roman law even though it is based on a different legal ideology.
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Trezubov, Egor S. "Independent Guarantee and Suretyship: On the Expediency of Establishment of a Sole Private." Civil law 6 (December 17, 2020): 23–27. http://dx.doi.org/10.18572/2070-2140-2020-6-23-27.
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The article is devoted to the advisability of the simultaneous existence of two named personal means of securing obligations — a suretyship and an independent guarantee. Suretyship is a traditional guaranteeing obligation that has arisen in a modern form in the law of Ancient Rome and has been developing for two millennia. In turn, an independent guarantee is the result of the evolution of an artificially created, or rather, copied from foreign banking practice, to solve the problems of the command economy by the Soviet civil law institute of guarantee. As a result of the permanent reform of domestic law of obligations, the introduction of pro-creditor approaches in the practice of resolving disputes related to securing obligations, the borders between the suretyship and an independent guarantee are washed away. Both of these means today assume a third party’s monetary liability in case of a debtor’s malfunction in a secured obligation (suretyship is de jure, and an independent guarantee is de facto). There are obvious tendencies to give the qualities of accessory independence of an independent guarantee and, on the contrary, to the formation of signs of the abstractness of suretyship. In this regard, the author makes an assumption about the further development of personal methods of securing obligations in Russian civil law.
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Kuznetsova, N. V. "CONTRACTUAL BASIS FOR TERMINATION OF CIVIL LEGAL OBLIGATIONS: PROBLEMS OF THEORY AND PRACTICE OF APPLICATION." Bulletin of Udmurt University. Series Economics and Law 31, no. 6 (2021): 1054–58. http://dx.doi.org/10.35634/2412-9593-2021-31-6-1054-1058.
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The article considers contractual grounds for termination of civil obligations: compensation, innovation, debt forgiveness. The paper notes some problems of the application of Articles 409, 414, 415 of the Civil Code of the Russian Federation in judicial practice, analyzes the issues of the ratio of compensation and innovation, the differentiation of these contracts. The problems of qualification of agreements on the grounds for termination of obligations in law enforcement practice and the question of applying the principle of freedom of contract to the relations under consideration are considered. It is noted that at present the practice of applying the legislation on compensation has changed significantly. Despite the restrictions established by the norm of Article 409 of the Civil Code of the Russian Federation, judicial practice allows the possibility of using works and services as a subject of compensation, which leads to problems of distinguishing such contractual grounds for termination of obligations as compensation and innovation. With regard to the innovation, an analysis of the provisions on the possibility of novating the penalty into a loan obligation is given. A problematic issue is the legal qualification of debt forgiveness as a basis for termination of an obligation. It is noted that the contractual nature of debt forgiveness should be taken into account. Acceptance of notification by the debtor's creditor of his release from the performance of his duty is the silence of the debtor (clause 2 of Article 438 of the Civil Code of the Russian Federation). The article also considers the question of the ratio of debt forgiveness and donation. The analysis of judicial practice shows that the courts do not consider debt forgiveness as a gift, except in cases when the creditor released the debtor from the performance of the obligation free of charge. In this case, the norms of Article 168 of the Civil Code of the Russian Federation and paragraph 4 of Article 575 of the Civil Code of the Russian Federation are subject to the application of debt forgiveness.
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Шевченко, Галина, and Galina Shevchenko. "Solidary Obligations in the Russian Civil Law." Journal of Russian Law 2, no. 2 (2014): 14–20. http://dx.doi.org/10.12737/2232.
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Comprehension’s of joint obligations problems and their types are considered in the article. Special attention is paid to joint obligations arising in case of joint damnification. The recourse liabilities and subrogation as ways of relationships between joint debtors after account with the creditor final settlement are analysed. The recourse liabilities are regarded as a types protective legal relations.
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De Vries, Gerard. "Right to Specific Performance: Is There a Divergence between Civil- and Common-Law Systems and, If So, How Has It Been Bridged in the DCFR?" European Review of Private Law 17, Issue 4 (2009): 581–97. http://dx.doi.org/10.54648/erpl2009039.
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ABSTRACT: Civil- and common-law systems are asserted to treat the right of a party to a contract to specific performance in quite different ways: in civil-law systems, this right seems to be a fundamental right of a creditor, emanating from the adagium ‘pacta sunt servanda’ itself; common-law systems, on the contrary, are supposed to grant this action to the creditors only in the exceptional case that their usual remedy, damages, would not achieve appropriate justice. One might expect that this well-known divergence between the before-said law systems has posed quite a problem to the draughtsmen of the Draft Common Frame of Reference (DCFR); since it is to serve as an international instrument, unitary rules were needed, and therefore, it might be expected that its draughtsmen have reached a laborious compromise between the before-said law systems in a laborious way. The following questions will be addressed: does this divergence between civil- and common-law systems exist realiter and, if so, how has it been bridged in the DCFR? In order to answer these questions, rights of a party to a contract of monetary obligations have been distinguished from rights to non-monetary ones. It will turn out with respect to each of these types of obligations that the beforesaid divergence between civil- and common-law systems is not as wide as might have been expected. The remaining divergences between the law systems have been bridged by the draughtsmen of the DCFR in different ways, dependent on the type of obligation at stake. With respect to monetary obligations, they have chosen for the common-law solution, that is, damages instead of a right to specific performance. With respect to non-monetary obligations, the civil-law solution that these draughtsmen have, on the contrary, chosen for the civil-law solution as the basic rule is the right to specific performance; their task to include the rights that the European Union confers on consumers in the DCFR may account for this latter choice.
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Dieckmann, Johann Andreas. "The Province of Subrogation Determined: Some CorrectionsA Functional Analysis of the Guarantor's Right to Derivative Recourse, Comprising a Critique of the Restitutionary Thesis." European Review of Private Law 20, Issue 4 (2012): 989–1043. http://dx.doi.org/10.54648/erpl2012063.
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Abstract: The doctrine of subrogation is a creature of English equity jurisprudence. It permits a surety to obtain the creditor's rights (securities, claims, and remedies) against the principal debtor for recourse purposes. The guarantor derives his position vis-à-vis the principal from the creditor. Why is subrogation granted? There are different answers. According to the traditional view in the English case law, the purpose of subrogation is that equity will correct a decision of the creditor who of his debtors to exact payment from. If the surety as the party liable secondarily is forced to pay, equity will allocate the creditor's rights against the party primarily liable to him. Derivative recourse is the technical means of correction. Subsequent correction of the result of the inequitable choice of the creditor is the function of subrogation. Lately, it has been argued that subrogation is a remedy directed against the unjust enrichment of the principal debtor gained at the guarantor's expense. Derivative recourse is also known in civil law jurisdictions. A comparative survey shows a very peculiar phenomenon: The two prominent English explanations do not find an equivalent in the civil law, and the explanations in civil law jurisdictions do not find an equivalent in English law either. This discrepancy is good enough a reason to have a closer look at the doctrine of subrogation and its province. The article critically discusses the different arguments advanced. As a result of the analytical and comparative discussion, the article determines the justification and the province of the guarantor's right to derivative recourse. The article refutes the restitutionary thesis on subrogation. Its stress on the relationship between guarantor and principal debtor is incompatible with the fact that the case law sees the basis of subrogation in the suretyship relationship. The rights afforded to the surety by subrogation are all directed against the creditor. The creditor comes under an obligation to the guarantor. This is overlooked by the enrichment theorists. Several important details of the law of subrogation cannot be explained in terms of restitution (e.g., the full payment rule, the rule of discharge through loss of securities, and right to pay off and sue). A theory that does not include these rules is not capable of giving a proper qualification of derivative recourse. Only a functional analysis of subrogation renders determination of its province possible. Derivative recourse gives easier and more effective recourse to a guarantor, enabling him to get indemnification for his loss. It supports a contractual claim to reimbursement. Derivative recourse is based on equitable considerations, taking into account the interests of the involved persons (principal, creditor, and surety). By making judgments available, the efficacy of the legal system is supported. The facilitating of recourse is beneficial to the guarantor, without prejudicing the interests of the creditor. The guarantee is upheld as an effective personal security, by withholding the principal an incentive not to pay himself. Neither the principal nor his other creditors are affected. The subsidiarity of the guarantee is restored. Equity corrects the creditor's decision to burden the subsidiary debtor and thus orders the ranks of liability.
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Martsun, A. A. "Assignment of a Claim Under an Obligation in Which the Identity of the Obligee Is Essential for the Obligor." Siberian Law Review 17, no. 4 (2020): 455–64. http://dx.doi.org/10.19073/2658-7602-2020-17-4-455-464.
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The Plenum of the Supreme Court of the Russian Federation adopted a resolution of December 21, 2017 No. 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction", which sets out important clarifications regarding the application standards contained in this chapter. At the same time, not all issues related to the assignment of the claim were resolved by the above resolution. One of these issues is the definition of the term “essential value of the identity of the creditor” or approximate criteria for such a value in the context of the need to obtain the latter’s consent to the assignment of rights. The presence of this problem is rightly indicated in the scientific literature [3, p. 549–655, 688–713]. The Author examines the Model Rules of European Private Law and the UNIDROIT principles in order to find a solution to the problem. Attention is drawn to the problem of determining the essential value of the creditor for the debtor in the case of assignment of the right of claim, as well as to the consequences of making the assignment without the consent of the debtor under an obligation in which the identity of the creditor was essential.In the Author's opinion, the identity of the creditor is recognized as essential for the debtor when the connection between the debtor and the creditor arose as a result of the conclusion of a transaction that has a personallyconfidential nature, or if the connection arose during the conclusion of other transactions in the case when the connection was broken during the execution assignment of rights entails or may entail a significant deprivation for the debtor of what he had the right to count on when concluding a transaction with the creditor.In addition, situations are considered that are an exception to the presumption of the absence of a significant value of the creditor's personality for the assignment of claims for monetary obligations. The author also points out that the consequence of the transaction on the assignment of rights without the consent of the debtor in the context of paragraph 2 of Art. 388 of the Civil Code of the Russian Federation is the nullity of the transaction on the basis of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation.
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Martsun, A. A. "Assignment of a Claim Under an Obligation in Which the Identity of the Obligee Is Essential for the Obligor." Siberian Law Review 17, no. 4 (2020): 455–64. http://dx.doi.org/10.19073/2658-7602-2020-17-4-455-464.
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The Plenum of the Supreme Court of the Russian Federation adopted a resolution of December 21, 2017 No. 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction", which sets out important clarifications regarding the application standards contained in this chapter. At the same time, not all issues related to the assignment of the claim were resolved by the above resolution. One of these issues is the definition of the term “essential value of the identity of the creditor” or approximate criteria for such a value in the context of the need to obtain the latter’s consent to the assignment of rights. The presence of this problem is rightly indicated in the scientific literature [3, p. 549–655, 688–713]. The Author examines the Model Rules of European Private Law and the UNIDROIT principles in order to find a solution to the problem. Attention is drawn to the problem of determining the essential value of the creditor for the debtor in the case of assignment of the right of claim, as well as to the consequences of making the assignment without the consent of the debtor under an obligation in which the identity of the creditor was essential.In the Author's opinion, the identity of the creditor is recognized as essential for the debtor when the connection between the debtor and the creditor arose as a result of the conclusion of a transaction that has a personallyconfidential nature, or if the connection arose during the conclusion of other transactions in the case when the connection was broken during the execution assignment of rights entails or may entail a significant deprivation for the debtor of what he had the right to count on when concluding a transaction with the creditor.In addition, situations are considered that are an exception to the presumption of the absence of a significant value of the creditor's personality for the assignment of claims for monetary obligations. The author also points out that the consequence of the transaction on the assignment of rights without the consent of the debtor in the context of paragraph 2 of Art. 388 of the Civil Code of the Russian Federation is the nullity of the transaction on the basis of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation.
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Mikhnevich, L. V. "Protection of the constitutional right of a person to property (property) in the security obligations of pledge and surety." Uzhhorod National University Herald. Series: Law, no. 65 (October 25, 2021): 398–402. http://dx.doi.org/10.24144/2307-3322.2021.65.71.
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The current stage of development of the national legal system of Ukraine is characterized by the development of various forms and ways of protection of the constitutional right to property, creating conditions for the exercise of constitutional rights and legitimate interests of individuals in property relations and realization of difference property rights.The key principle of the constitutional regulation of private law relations is the equality of all participants, which is a significant achievement of the modern legal system. The most pronounced detection of the principle of equality is embodied in the field of civil law, where the main method of regulation is the legal equality of participants. It allows protecting the rights and interests of individuals along with the interests of the state and other subjects of public law, which in the field of civil law have no privileges in connection with their status, have no authority over other subjects of civil law and are legally equal to individuals.The issue of property is, in general, key in the constitutional regulation of economic relations, which is directly related not only to property but also contract law, because, first, entering into appropriate legal relations, their sub-jects satisfy their own property and other interests, and such actions should not harm the interests of others. And secondly, most of the ways to protect violated property rights (property) are implemented within the framework of a binding legal relationship.A special institution is the provision of obligations, as it is designed to protect the right of a person to property, which is used as a guarantee of protection of such rights in a contractual relationship. This institution is a set of legal norms that regulate the relationship related to the creditor’s rights to the debtor’s property or claims to third parties, establish additional mechanisms and means of state legal protection to ensure the actual and proper performance of obligations ultimately guarantees the protection and defense of the right of a person (creditor) to his property.In this article defines that the specific types of security for the obligation are pledge (mortgage) and surety, which allow to involve in guaranteeing the protection of a person’s right to property in contractual relations of third parties, in particular in the case of pledge with a guarantor. Pledge and surety are different types of pledge in their means, so the rules governing the surety do not apply to the creditor’s legal relationship with the property guarantor, as he is liable to the pledgee for the debtor’s performance of the principal obligation only within the value of the pledge.Pledge and surety may give rise to a new accessory (additional) obligation between the creditor and the guaran-tor or property guarantor. In order to ensure equality as a key principle of constitutional law and the method of civil law regulation, it seems appropriate to supplement the legislation of Ukraine with the provisions on the conclusion of a surety agreement, only with the consent of the debtor; also substantiated the opinion on the need to give the consent of the guarantor (property guarantor) to assign the right of claim to him under the surety agreement (prop-erty surety).
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Bielecka-Dobroczek, Aleksandra. "LEGITYMACJA FORMALNA JAKO INSTYTUCJA PRAWA ZOBOWIĄZAŃ." Zeszyty Prawnicze 3, no. 2 (2017): 253. http://dx.doi.org/10.21697/zp.2003.3.2.11.
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Formal Capacity in the Law of ObligationsSummaryThe author of this article presents the principles of identification of the person to whom a debtor can pay in order to free himself from the obligation. According to the general rule the debtor performs his obligation by satisfying the creditor that is personally known to him. It is not possible however in case of an alienation of the debt. In such a situation the person demanding payment of the debt must prove his right to the debtor, unless there were certain formal indications letting the debtor free from an obligation by paying him. Such formal indications are used mainly in securities which are easily saleable, but also can be met in the general part of the obligation law (for example in articles 464 and 512 of the Civil Code). In case of securities they result from the content of the document which indicates the person entitled to be considered a creditor in three ways: it may contain his name and is alienated by an assignment, they may be securities upon a mandate alienated by an endorsement or securities to a bearer.In public trading securities are submitted to dematerialization and they do not exist as documents, so they lose their „identifying function”, which is gained by securities accounts and depositary certificates showing the state of the account.
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Guyvan, P. D. "Legal issues of implementation and protection of civil law in case of violation. Temporal aspect." Uzhhorod National University Herald. Series: Law, no. 65 (October 25, 2021): 107–11. http://dx.doi.org/10.24144/2307-3322.2021.65.19.
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This scientific article is devoted to the study of the topical issue of temporal dimensions of a person’s subjective right to protection of his violated civil rights. The paper argues that the existence of a legal relationship is an integral part of its content, outside the time of realization of the right to exercise it is impossible. In civil relations, the decisive factor is the dispositive factor for determining the duration of the obligation at the level of the creditor-debtor. But even with the uncertainty of the temporal coordinates of the relationship, the definition of «term of performance of an obligation» should be understood as a period of time during which the entitled person can exercise his right, as well as a period of time during which the obligor must perform his duty. Instead, the period during which the protection right is exercised, including the claim, as a rule, has a normative design. This shows the importance of the civil law term as an element of the content of subjective law: its expiration leads to certain legally significant consequences - the exhaustion of law. Otherwise, the significance of such a legal phenomenon as the term is simply leveled. Therefore, the author categorically denies the concept that the subjective rights and corresponding responsibilities of the parties to the binding relationship can be exercised outside the specified temporal coordinates. At the moment of the offense, a new independent binding relationship of a protective type arises, the content of which includes the protective claim of the right holder and the corresponding duty of the infringer. The subjects of these relationships of the already protective type will be the same persons as in the terminated regulatory relationship - the creditor endowed with the claim and the debtor burdened with the obligation. But the scope of rights, the nature of their exercise and, most importantly, the temporal characteristics will be different. In the case of judicial protection of the right, the statute of limitations will be decisive, in the case of out-of-court protective constructions, there are also their own time regulators. Therefore, the paper also assesses the question of the existence of a subjective right after the expiration of the statute of limitations - the term of existence of the substantive right to sue. It is concluded that the substantive right to protection (protection right) to fulfill the existing obligation does not end with the coincidence of the statute of limitations.
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Mantili, Rai. "ACTIO PAULIANA SEBAGAI UPAYA PERLINDUNGAN BAGI KREDITOR MENURUT KITAB UNDANG-UNDANG HUKUM PERDATA DAN UNDANG-UNDANG KEPAILITAN DAN PENUNDAAN KEWAJIBAN PEMBAYARAN UTANG (PKPU)." ADHAPER: Jurnal Hukum Acara Perdata 6, no. 2 (2021): 21. http://dx.doi.org/10.36913/jhaper.v6i2.127.
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Actio Pauliana is the right given to a creditor to cancel the debtor’s agreement with a third party. The purpose of this actio pauliana is to avoid losses from its creditors, by requesting the court to cancel the debtor’s legal action which is deemed to be detrimental to his creditors. Actio Pauliana provisions apart from being regulated in the Civil Code, are also regulated in Law No. 37 of 2004 concerning Bankruptcy and Suspension of Debt Repayment Obligation (UUKPKPU). However, the two rules have several diff erences. In this paper, the author wants to explain about Actio Pauliana which is regulated in the Civil Code and Actio Pauliana which is regulated in UUKPKPU in order to provide protection for creditors. This writing gives the result that Actio Pauliana’s lawsuit which is regulated in the Civil Code is submitted to the District Court and cannot be justifi ed and can take a long time. Unlike the case with Actio Pauliana which is regulated in the UUPKPU, the fi ling of a lawsuit is made to the Commercial Court and can be proven simply so that it can provide more protection for creditors.
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Putra, Ryan Prastya Mariata, Ida Ayu Putu Widiasti, and Ni Made Puspasutari Ujianti. "Akibat Hukum dari Wanprestasi dalam Transaksi Jual Beli Secara Instagram." Jurnal Preferensi Hukum 1, no. 2 (2020): 33–36. http://dx.doi.org/10.22225/jph.1.2.2339.33-36.
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The influence of globalization that occurs today has made information and communication technology became something very important for society because it presents a world without boundaries, distance, space, and time. This has made changes to the lifestyles of the people as well as changed the social, economic, cultural, security, and law enforcement. This research was conducted with the aim of describing the rights and obligations of the parties in an Instagram trade agreement and the legal consequences of negligence on an Instagram trade agreement. This research was conducted using normative legal research methods. The results of this study showed that the rights and obligations of the parties to the engagement on Instagram are regulated in the PK Law. Consumers and business actors have their respective rights and obligations. In addition, the legal consequences for a debtor/party who has the obligation to perform in the engagement but has committed negligence, namely: he must pay compensation suffered by the creditor/party who has the right to receive achievement (vide Article 1243 of the Civil Code); he must accept the decision of the engagement accompanied by payment of compensation (vide Article 1267 of the Civil Code); he must accept the transfer of risk from the moment of failure (vide Article 1237 paragraph (2) of the Civil Code); and he must pay court fees if litigated in court (vide Article 181 paragraph (1) HIR).
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Kanzafarova, I. S., and M. S. Fedorko. "SECURITY (GUARANTEE) PAYMENT AS AN INNOMINATED ENFORCEMENT OF OBLIGATIONS." Constitutional State, no. 42 (July 7, 2021): 154–63. http://dx.doi.org/10.18524/2411-2054.2021.42.232419.
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The article is devoted to clarifying the features of a security (guarantee) payment as an innominated method of securing the enforcement of an obligation. As a result of the study, there are provisions that can serve as a basis for constructing a sub-institution of a security (guarantee) payment in the obligation law of Ukraine. The conclusion is justified that a security (guarantee) payment is possible only when the material objects of the main and accounting obligations are homogeneous. Homogeneity in security payments is that the subject matter and mode of performance of the principal obligation can be replaced by the same performance, but at the expense of reserved funds. A monetary security payment cannot provide non-monetary obligations in an obligation, since their fulfillment cannot be replaced by a monetary provision. It is proved that the security (guarantee) payment must have separate characteristics of the deposit, pledge, and predetermined losses. A distinctive feature of a security (guarantee) payment, in comparison with other methods of securing the performance of the obligation, is the weakened emphasis, which manifests itself at the stage of the occurrence of the obligation, allows to ensure obligations arising in the future. The regulatory fixation of a security payment in the Civil Code of Ukraine, of course, will be a logical result of its application in practice as an innominated method of ensuring the fulfillment of an obligation. The conclusion is justified that a security (guarantee) payment can perform a punitive function only indirectly: through the application of civil liability measures. In other words, a security payment is only a financial source of satisfaction for claims for forfeiture or damages, but unlike the mentioned measures of liability, a security payment does not have a punitive mechanism in its structure. A security payment is characterized by the existence of a compensation function that aims to restore the property sphere of the creditor, and not acting as a means of punishing the debtor. Attention is drawn to the need to introduce a certain mechanism for allocating funds from the estate of the person to whom they are transferred as a security payment. This mechanism will balance the interests of participants in civil traffic, leveling the risk of their non-return for the person who transferred money as a security payment.
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Rasskazova, V. V. "Settlement and Release in European Legislation." Bulletin of Kharkiv National University of Internal Affairs 89, no. 2 (2020): 61–68. http://dx.doi.org/10.32631/v.2020.2.05.
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Since the current contractual practice demonstrates the active use of settlement and release construction by the parties of civil legal relations as one of the most flexible instruments of termination of an obligation, the issue of ensuring unity in the interpretation and practice of this legal institution remains relevant. The subject matter of this study is the norms of civil law of different Member States of the European Union, and the purpose is the study of the conceptual approaches of other states to the legislative consolidation of settlement and release structure, its recognition as one of the ways to terminate the obligation and specific features of the interpretation and application of this institution that will make it possible to enlarge the view on the essence and role of settlement and release within the system of grounds for the termination of civil obligation and national contractual practice.
 The comparative and legal method was chosen as the main method of scientific research, due to which the author characterizes the main elements, purpose and essential features of legal constructions in civil law of other states, which are similar to the institution of settlement and release in Ukraine; the author pays attention to distinctive technical and legal peculiarities of civil legislation of some EU countries.
 According to the results of the conducted research the author has established that civil legislation of the most European countries does not enshrine settlement and release as the institution of obligation law and does not recognize it as an independent method to terminate the obligation. At the same time, the codified acts of some states contain certain legal norms, which provide for cases of transferring a certain good by the debtor to the creditor instead of fulfillment of an obligation, as well as enshrine legal institutions that act as settlement and release.
 The significance and practical significance of the paper is that the conducted study reveals new directions for further research, demonstrates the relevance and need for a more detailed and comprehensive analysis of the content and legal features of settlement and release, its importance and role in national contractual practice, as well as in the practice of other states.
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Babaskin, Anatoliy. "Legal nature of the requirements of the banking legislation of Ukraine to ensure credit operations of banks." Yearly journal of scientific articles “Pravova derzhava”, no. 32 (2021): 297–305. http://dx.doi.org/10.33663/0869-2491-2021-32-297-305.
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Іintroduction. Despite the fact that a significant number of scientific publications by well-known Ukrainian authors are devoted to the issues of legal regulation of credit obligations, at the same time separate studies of banking legislation requirements on "acceptability of collateral" have not been conducted in Ukrainian civil science in recent years. This, taking into account the gradual alignment of banking legislation of Ukraine with the standards of Basel III, and Directive 2002/47 / EC of the European Parliament and of the Council of 6 June 2002 on financial collateral mechanisms, necessitates such scientific research. The aim of the article. On the basis of the analysis of the legislation of Ukraine, the legislation of the European Union, scientific advances in the sphere of civil law and banking legislation, in the context of the analysis of the banking legislation of Ukraine, it is safe for creditors. In order to achieve this goal: 1. Conduct an analysis of civil and legal species for the protection of crops for the subject of іх possible delivery to “acceptable safety” and vrahuvannya banks when opening a credit card. 2. Significantly "quasi-security", as viewed by the banking legislation in the form of "acceptable security" for credit cards. 3. Zdіysniti analysis of the approaches to the legislation of the EU in the field of protection from credit denominations. Results. The methodological basis of the study is general scientific and special legal methods of scientific knowledge. In particular, the dialectical method, the method of analysis and synthesis, the comparative law method, the functional method, the modeling method, etc. Conclusions. First, the banking legislation does not consider as "acceptable collateral" such types of collateral as penalty, surety, deposit, retention. Secondly, the banking legislation considers as "acceptable collateral" not only those specified in Part 1 of Art. 546 of the Civil Code of Ukraine types of security for performance of obligations (pledge, right of trust ownership, guarantee), and other types of security for performance of obligations provided by law or contract (reserve letter of credit, performing the function of financial guarantee, guarantees of public entities, guarantee payment), but also contractual constructions which do not concern types of maintenance of performance of obligations (repo agreements). Thus, the banking legislation considers collateral in credit operations from the economic point of view, according to which "acceptable collateral" is only such liquid collateral that guarantees the rapid recovery of the property of the creditor bank, which suffered damage due to default or improper performance of the counterparty loan obligation, as well as "quasi-collateral", if such is referred by banking legislation to "acceptable collateral". Third, the existence of rules in the banking legislation on the acceptability of collateral in no way affects the right of banks to use any type of collateral provided by law or contract, if the application of such is possible in credit relations, taking into account the legal nature of the relevant types. software. Fourth, the set of regulations of the National Bank of Ukraine on the acceptability of collateral can be considered as an institution of banking law, which includes as rules of civil law governing the types of collateral, other rules of contract law governing other "quasi-collateral" contractual constructions, as well as public-law special norms of banking legislation, which establish additional regulatory requirements for banks to ensure credit operations and calculate credit risk.
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Jacinda, Indah, and Stanislaus Atalim. "ANALISIS PUTUSAN PEMBATALAN PERJANJIAN PERDAMAIAN HOMOLOGASI PADA KASUS KEPAILITAN PT NJONJA MENEER (STUDI KASUS: PUTUSAN PENGADILAN NIAGA SEMARANG NOMOR 11/PDT.SUS-PAILIT/2017/PN NIAGA SMG. JO. PUTUSAN MAHKAMAH AGUNG NOMOR 1397 K/PDT.SUS-PAILIT/2017)." Jurnal Hukum Adigama 2, no. 1 (2019): 692. http://dx.doi.org/10.24912/adigama.v2i1.5257.
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A form of reconciliation in Suspension of Payment is an agreed composition plan, and the composition plan must get the court’s ratification (homologation). According to Article 170 of the Bankruptcy Law number 37/2004, the creditor can request the cancellation of the composition plan that has been approved if the debtor fails (negligent) to fulfill their obligations. Furthermore, in Article 291 Paragraph 2 of the Bankruptcy Law states that if the cancellation is approved, the debtor must be declared bankrupt. And in this case, PT Njonja Meneer was declared bankrupt because they were considered negligent in fulfilling their obligation according to the composition plan, which if we look in Indonesian Civil Code, on Article 1238 it’s stated that someone can only be said to be negligent if they do not carry out their obligations after the due date and have received a notice beforehand. And in this case, the composition plan’s due year is still in 2020 but in 2017, the debtor has already called negligent and declared bankrupt by the court. Therefore, while the research methods in this journal use normative research methods supported by interview data, this journal will examine further about the composition plan itself and the term of negligent in fulfilling the obligations according to the bankruptcy law.
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Sayatova, M. N. "Securing the performance of the loan obligation." Scientific works "Adilet", no. 1 (2021): 103–7. http://dx.doi.org/10.54649/2077-9860-2021-1-103-107.
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The article examines the legal nature of the institution of ensuring the fulfillment of obligations. An analysis of the methods of security known in civil law is carried out and an attempt is made to determine among them the optimal ones for use in the field of credit relations. At the same time, it is emphasized that the list of ways to ensure the fulfillment of obligations contained in the Civil Code of the Republic of Kazakhstan is open, allowing the subjects of civil law relations to independently develop the most convenient ways to secure obligations.
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Radolović, Aldo, and Oliver Radolović. "Neke nove refleksije o građansko-trgovačkim specifičnostima novčanih obveza." Zbornik Pravnog fakulteta Sveučilišta u Rijeci 39, no. 1 (2018): 335–50. http://dx.doi.org/10.30925/zpfsr.39.1.11.
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Money obligations are a very attractive legal category in civil and commercial law. In credit agreements, especially in consumer credits, it is extremely important. The sole function of money is to represent value, and therefore it is irrelevant which currency is used by the contracting parties. A fall in the value of money claims an adeguate “matching”, which can be performed in more different ways. A creditor is not entitled to get back a higher total amount of loan compared to the initial value, but anyway he may claim its real value, and, consequently, the same standard is applicable to the debtor when money value experiences appreciation.
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Yatsenko, E. V. "Counter-Guarantee: Reasons for Emerging, the Essence and Legal Regulation." Actual Problems of Russian Law 16, no. 2 (2021): 22–29. http://dx.doi.org/10.17803/1994-1471.2021.123.2.022-029.
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The paper defines the reasons for the emergence of such a method of ensuring obligations as a counterguarantee. The author highlights five factors that influence the choice of this instrument. The author draws conclusions that the counter-guarantee emerged as a result of globalization of the economy and development of international trade. This effective and convenient instrument allows the creditor to obtain a guarantee of an acceptable bank and minimize the creditor’s costs and risks in international transactions. The author argues that the core of the counter-guarantee is formed by the unilateral obligation of the counter-guarantee bank encouraging the issuing bank to issue a direct guarantee, which is the purpose of the counter-guarantee. The paper examines the features of the legal regulation of the counter-guarantee in Russia and abroad, including a retrospective analysis of the problems of the legal regulation of a counter-guarantee in Russia. In particular, the author highlights the difficulty of issuing a counter-guarantee under Russian law before 2015 due to the lack of regulation of this instrument in the Civil Code of the Russian Federation and mismatch of the design of the bank guarantee and counter-guarantee in the old version of the Civil Code of the Russian Federation The paper analyzes judicial and banking practices in the field of counter-guarantee provision.
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Christiawan, Rio. "The Use of Receivables as Collateral in Business Practices in Indonesia." Yuridika 36, no. 2 (2021): 427. http://dx.doi.org/10.20473/ydk.v36i2.25372.
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AbstractThis article discusses the enforceability of Article 9 of Law No. 42 of 1999 on Fiduciary Guarantee that allows the use of receivables as debt collateral in business practices in Indonesia. Receivables bound by fiduciary collateral is deemed as a special collateral— in the context of civil law, a special collateral will be prioritized in case the debtor does not voluntarily make when due. In business practices, long-term receivables will be established following an agreement between a debtor and a third party, and the receivables that the debtor is entitled to receive from the third party will be provided as collateral to secure the debtor’s obligations under his loan agreement with the creditor. The issue discussed in this paper is the fact that although theoretically special collateral in the form of receivables should be able to increase the creditor’s assurance of getting repaid, in practice long-term receivables put higher risk on the creditor instead. As comparison, this paper uses the accounts receivables fiduciary in the United Kingdom. The Writing Method used in this paper is the normative juridical approach with a focus on conducting juridical studies regarding the creditors' risk in the use of receivables, specifically long-term debt collateral. This paper shows that receivables that are used as collateral in fiduciary agreements actually put the greatest risk on the creditor; especially if the agreement between the debtor and the third party stipulates that in case the debtor fails to fulfil his obligations, all receivables that he is supposed to receive from the third party will be aborted and become non-existent.
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Kruhlova, Olha. "Legal analysis of mechanisms of influence on debtors." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (2020): 115–19. http://dx.doi.org/10.31733/2078-3566-2020-2-115-119.
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This article is dedicated to exploring legal mechanisms that can be used against debtors to satisfy creditors' rights and interests. The purpose of the study is to determine the list of measures aimed at exercising effective influence on the debtor, provided by law, and to formulate criteria for their application. The author draws attention to changes in the current legislation in this area in recent years and stresses the urgency of maintaining discipline in obligations, given the difficult economic situation in the country and the global financial crisis. One of such positive changes should be the establishment of the keeping of the Unified State Register of Debtors in Ukraine, whose functioning makes it possible to identify the debtor's property and impose restrictions on it, prohibit alienation and so on. And all this provides an opportunity to meet the property needs of creditors. For the first time, the study reveals the criteria that should be used to determine the areas of influ-ence for entities with debt to the lender: characteristics of the individual (individual / legal entity, etc.); the area of law that sets the obligation for the debtor (civil / family / commercial law, etc.); the causes of the debt (insolvency / liability of the debtor, etc.); the personal position of the debtor and / or creditor in the situation that has arisen (initiation of debt resolution / restructuring, etc.) The article also analyzes the specifics of choosing measures to influence debtors who have certain statuses. Such a feature exists in particular for an individual, a legal entity, a state-owned enterprise, an alimony debtor, an insolvent debtor, and others.
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Aryani, Fransisca Kusuma, and Gunawan Djajaputra. "PERLINDUNGAN HUKUM BAGI KREDITUR PEMEGANG HAK TANGGUNGAN TERHADAP SENGKETA AGUNAN YANG MENGAKIBATKAN BATALNYA PERJANJIAN KREDIT." Jurnal Hukum Adigama 1, no. 1 (2018): 26. http://dx.doi.org/10.24912/adigama.v1i1.2135.
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The process of granting credit with the guarantee of Mortgage Rights experienced many obstacles, one of which is the cancellation of credit agreement due to a lawsuit from a third party. Examples of problems that will researchers take is a case between PT PNM as creditor and Erlinawati as a debtor. Erlinawati applied for credit to PT PNM and pledged SHM No. 1716 without her husband's agreement, Bagus Satriya. As time went by, Erlinawati could not fulfill its obligations as stipulated in the credit agreement, and then PT PNM sent a warning letter to Erlinawati. Good people who know the land and buildings of his property are used as a direct guarantee to file a lawsuit to the Blora District Court. The Blora District Court ruled that credit agreements and Deed of Mortgage Rights (APHT) are invalid and null and void. So far the legal protection for debtors who have sued from the other party on the guarantee given by the creditor has not been regulated specially in the legislation. The law only regulates bad debts and debt repayment through the execution process stipulated in the Law on Banking and Insurance Rights Act. Legal protection that creditor can use when obtaining a lawsuit from a third party is by using the general guarantees provided for in Articles 1131 and 1132 of the Civil Code.
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Rotan, V. G., and S. V. Ochkurenko. "THE LEGAL NATURE OF THE MORTGAGE (THE GUARANTEE) AND ITS DELIMITATIONS FROM THE ADJACENT CIVIL AND LAW PHENOMENON." Issues of Law 20, no. 4 (2020): 40–49. http://dx.doi.org/10.14529/pro-prava200406.
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In this article it substantiates the understanding of the sense of the mortgage (the guarantee) as the complex of the liability law. The absolute (of estate) law relationships apropos of the mortgage (the guarantee) have especially auxiliary significance. And this is why they cannot express the essence of the mortgage (the guarantee).There is an insolubility of the question on the character of the mortgage (the guarantee) in the science. It is caused by this: the discussion on the character of the mortgage (the guarantee) is implementing in principle out of touch of the standards of law, which regulate the mortgage (the guarantee) relationships and out of law relationship, appearing as a result of such regulation or this discussion does not take into account in the appropriate measure the content of the corresponding law statements. The supposed inclusion of the statements on the mortgage (guarantee) in part II of the Civil Code will negatively influence the structure of the Civil Code. We have to differ the mortgage (the guarantee) from the adjacent law phenomenon. In particular the assignment to the mortgagee (creditor on the obligation, which is secured by the mortgage (the guarantee) of the right to satisfy its requirement at the expense of sources, enumerated in paragraph 2 of the article 334 of the Civil Code does not mean that the appropriate rights and law
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Petrov, V. "Joint and several liability and separate liability of the heirs for hereditable obligations – short comparative and historical overview." Fundamental and applied researches in practice of leading scientific schools 28, no. 4 (2018): 114–16. http://dx.doi.org/10.33531/farplss.2018.4.21.
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The article researches the different approaches for regulation of the liability of the heirs for hereditable obligations. Historical and comparative researches were made. The European legislations can be divided in two big groups. The legislations form the first group set a separate liability of the heirs - each one of them owes only a part of the debt equal to his share of the estate. The legislations of France, Ukraine, Bulgaria, etc. are included in this group. The legislations from the second group govern joint and several liability for the heirs. A creditor of the estate has a right to demand an enforcement of the whole size of hereditable obligation from one of the heirs and this enforcement releases all of the heirs from their liability. This group includes the civil legislations of German, Switzerland, Spain, Russian federation, Macedonia, etc. The author position is that the separate liability is more proper for regulation of the heir’s liability for hereditable debts. Historical, comparative and theleological methods are used for proof of this thesis. The historical development of this liability from Roman private law is traced and researched. A short overview of the aims of each one of the two kinds of liability is made in the article. The joint and several liability protects only the interest of the creditors of the estate. It is considered in the doctrine as a debt security. The separate liability protects the interest not only of the creditors, but of the heirs too. But only the liability for divisible obligations is separate. The liability for indivisible obligations is joint and liability. The separate liability can’t be applicable for them because of the specific of this kind of obligations.
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Zakharkina, A. V. "Escrow Agreements (Ascrow) as the Basis for a New Complex Obligation." Lex Russica, no. 4 (May 2, 2019): 68–77. http://dx.doi.org/10.17803/1729-5920.2019.149.4.068-077.
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The paper is devoted to the scientific and practical apprehension of implementation of a new contractual design substantiating a complex obligation, namely, an escrow agreement, and its separation from similar civil law designs (such as escrow account, nominal account, storage, letter of credit, depositing of funds and securities to the notary public, etc.). Prior to introducing the escrow agreement, its existence in the property turnover was actually enforced by the escrow account rules introduced into civil law during the reform of the law of obligations. There is a close legal relationship between the escrow agreement (escrow) and the escrow account arising from the “contingency” of the obligation in question, but civilistic institutions under consideration are not identical. Its independence from the banking sector is considered to be an absolute advantage of the escrow agreement, as opposed to both the escrow account and the other securing financial mechanisms (such as a letter of credit, a safe deposit box lease agreement, etc.) in which the leading role belongs to banking organizations that are suffering crisis situations at the present stage of the existence of the Russian banking system. The United States are the ancestral home of the legal relations of obligations constructed in compliance with the model of the escrow agreement. Probably, this explains the term “escrow” that is absolutely strange for the Russian legal terminological framework and that is a synonym for the escrow agreement. Attention is drawn to the implementation of this contractual design for the needs of electronic business in the conditions of large-scale digitalization of the Russian legal and economic systems. The author concludes that the escrow agreement is able to organically fit into a number of new regulatory instruments of the law of obligations aimed at creating an attractive investment legal and economic environment in the Russian Federation.
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Malbin, Dmitriy A. "Reduction of Property Liability: Problem Setting." Civil law 1 (February 4, 2021): 18–21. http://dx.doi.org/10.18572/2070-2140-2021-1-18-21.
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The article deals with an issue of reduction of liability in the civil law. The Civil Code of Russian Federation includes handful rules, which allow the court to reduce liability of a debtor. However, such rules are applicable to different events and there are no universal rules applied to all events of property (economical) liability. For instance the court ought to reduce liability of a debtor in case both a creditor and the debtor are failed an obligation as well as the court is entitled to reduce liability of the debtor when the creditor facilitated increasing an amount of his losses. The court reduces an amount of penalties in event of such the amount is obviously not equal to the result of aftermath that an obligation was failed by debtor. In cases related to damnification the court has the right to reduce liability of tortfeasor based on his property status unless they caused damage intentionally. Yet there are many rules of property liability simultaneously do not allow to reduce such liability, for instance liability for violation of intellectual rights, rights of consumers (when a seller refuses to fulfil a demand of a consumer on his own free will), etc. Since there are sort of such rules, the court occasionally forces to apply the art. 333 of the Civil Code to Russian Federation, meanwhile the legal practice of applying this article is inconsistent. The reason of that inconsistency is there are no legal rules of reducing liability which regard all types and events of property (economical) liability. However the legal practice has a wide experience and knows many methods of reducing property (economical) liability. The author points out that it is time to formulate universal rules of reducing liability applied to all events of property (economical) liability on the basis of scattered rules of the Civil Code of Russian Federation and legal practice of its application.
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Габов, Андрей, and Andrey Gabov. "Billholder Rights in the Reorganization of a Legal Entity." Journal of Russian Law 4, no. 6 (2016): 0. http://dx.doi.org/10.12737/19765.
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Reorganization of a legal entity entails significant risks for creditors. To reduce risks, the law (article 60 of the RF Сivil Сode) vests the lenders with special rights. When a legal entity makes the decision about its reorganization, the creditor has the right to demand early performance of obligations, and in case of impossibility of early performance – to require the termination of obligations and compensation for losses. The application of this general rule to the creditors, whose rights are based on the bill, faces a problem: the Regulation on bills and notes of 1937 (article 43) does not mention reorganization as grounds for early repayment of the bill. In the present paper, the author proves that the bill holders have the rights envisaged by article 60 of the RF Civil Сode. The author analyzes the problems in case of bill presentation for repayment.
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Ardo, Febi Kinanti. "Analisis Hukum Perkara Jaminan Fidusia dalam Putusan Pengadilan Negeri Padang Nomor 38/Pdt.G/2018/PN Pdg." Jurnal Ilmiah Penegakan Hukum 6, no. 2 (2019): 96. http://dx.doi.org/10.31289/jiph.v6i2.2730.
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<p>The occurrence of the agreement on a vehicle financing agreement with the transfer of ownership rights fiduciary between PT. Pro Car International Finance (creditor) with a debtor No. No. 0450001897 dated May 31, 2014. The Debtor has not fulfilled its obligations since the 32nd installment due on December 31, 2016. The reason the debtor did not fulfill the obligation because the debtor has committed a crime. Upon the situation of the debtor, the PT. Pro Car International Finance states that the debtor has violated Article 1365 and Article 1366 of the Civil Code. The purpose of this study is first, to find out the form of acts against the law in Case number: 38 / Pdt.G / 2018 / PN Pdg, second, to find out the basis for judges' consideration of acts against the law in Case number: 38 / Pdt.G / 2018 / PN Pdg. This research method is normative juridical with qualitative analysis and presented descriptively. The results obtained, firstly, that the form of acts against the law in case number: 38 / Pdt.G / 2018 / PN Pdg in the form, acts that are contrary to their own legal obligations. The second result, that the basis for consideration of the Judge gave a decision on a lawsuit against the law in case number: 38 / Pdt.G / 2018 / PN Pdg is the debtor has been proven to have committed an unlawful act and the judge granted part of the demand for the Defendant to pay a loss of Rp 82,745 .681.00 with interest and penalties.</p>
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Saksonov, Vladyslav, and Kostyantyn Romashchenko. "Legal structure “law of trusts” in the civil legislation of Ukraine." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (2020): 120–26. http://dx.doi.org/10.31733/2078-3566-2020-2-120-126.
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The article gives the legal characteristics of the newly introduced structure "law of trusts" in the civil legislation of Ukraine. The current status and possible prospects for the development of this legal institution in our state are clarified. In particular, the two-fold character of the legal nature and the ambiguity of the assessment of “law of trusts” were noted. Firstly, as a type (Article 546 of the Civil Code of Ukraine) and a method (Article 597 of the Civil Code of Ukraine) of guaranteeing the fulfillment of an obligation. Secondly, as a special type of property right (Article 316 of the Civil Code of Ukraine). Moreover, in all senses, the "law of trusts" causes numerous comments by specialists, which causes controversy and the necessity for further changes. The right of trust should be considered in a broad understanding of the significance of this legal phenomenon. It may include the transfer of property rights for the purpose of managing it in the interests of a fiduciary (fiducia cum amico), and the transfer of property rights in order to ensure the fulfillment of a loan obligation (fiducia cum creditore). Therefore, the idea of limiting at the legislative level of this phenomenon of an exclusively interim function is doubtful and may have long-term consequences with a further understanding of this legal phenomenon and the implementation of foreign practices. The introduction at the legislative level of the institution of trusts as a type and method of ensuring the fulfillment of an obligation with an attempt to provide him with dual content of a legal nature is nothing more than an attempt to replace the content with a form. The legal construction of law of trusts introduced by the legislator is, by its legal nature, a surrogate for mortgages in its “super form”. In it, the lender is “facilitated” by the mechanism of foreclosure on property, through ownership of the title. Trust property as a type and method of ensuring fulfillment of an obligation cannot be considered as a special type of property right without a doctrinal and legislative review of the content of the owner’s eligibility. At the legislative level, it would be more successful to implement the evolutionary form of trust - title support as a way to ensure fulfillment of an obligation without “obscuring” in its nature the attributes of this type of right to things as property right, albeit with the provision of a special type of property. Trust property as a way to ensure the fulfillment of an obligation (title security) should be consid-ered as a type of right to things to another's property, and not as a special type of property right with a defect in the content of eligibility.
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Damayanti, Ratih. "THE STATE POSITION AS A PREFERENT CREDITOR OF THE TAX DEBT IN BANKRUPTCY." Journal of Private and Commercial Law 2, no. 1 (2018): 65–77. http://dx.doi.org/10.15294/jpcl.v2i1.14514.
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Bankruptcy is a decision issued by the Court that resulted in a general confiscation of all the wealth owned and the wealth that will be owned by the debtor in the future. The State has the preference right to tax debt on the property of the Taxpayer. This means that the position of the state as a preferent creditor who is declared to have prior rights over the property of the Taxpayer to be auctioned in public. The state's preference by taxpayer repayment is in fact not as easy as one might imagine, there are some problems. The purpose of article writing is to know the position of the State as a preferent creditor for the tax debt of the taxpayer declared bankrupt and know the obstacles of the State as a preferent creditor to the repayment of tax debt on taxpayers declared bankrupt. Provisions on the State's prior rights include the principal taxes, administrative sanctions in the form of interest, penalties, increases, and tax collection fees. The weakness in the regulation creates an impediment to the application of the State as a preferential creditor who has the preference right, namely the formulation of the preference right itself that is unclear about the notion of the state's position as the preferent creditor, in addition to the overlapping regulation of the preference right (preferent creditor) The Civil Code, the Law on General Taxation and Bankruptcy Laws and Postponement of Debt Payment Obligations which not only the State as the Preference rights holder's creditors.
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Fernando, Josua, and Susanti Adi Nugroho. "KEDUDUKAN SITA PIDANA TERHADAP SITA UMUM KEPAILITAN." Jurnal Hukum Adigama 1, no. 1 (2018): 339. http://dx.doi.org/10.24912/adigama.v1i1.2148.
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AbstractThe Court Ruling claim that a debt discharge a bankruptcy inflict a debtor will loose his right to dominate the wealth which include the bankruptcy property. The whole riches of a debt who’s discharge bankruptcy, automatically will be placed to the general confiscation. The general confiscation of the debt property has intend to protect the interest of the creditor of all the deeds of the debt which can disserve the property of a bankruptcy and stop the execution of the debt property with all the creditors to get the debt repayment. The general confiscation itself is a form of confiscation which known in civil law regime especially bankruptcy in legal perspective as a private law. Confiscation in a criminal case aim to prove criminal act. Article 38 of a Criminal Code Procedure regulate that the investigator can undertake the property of confiscation that placed in the general confiscation. However, Article 46 of a Bankruptcy and Suspension Of Obligation For payment Of Debt regulate that all confiscation become vanished when the property has confiscated in the general confiscation. When this two confiscation situated in the property, The confiscation in criminal case will precede the general confiscation. That matter is because of the confiscation in a criminal case is part of public law that aimed to protect our public interest.
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Dalkowska, Anna. "Enforcement of the obligation to return the equivalent of an undue benefit." Nieruchomości@ 3, no. 3 (2019): 29–44. http://dx.doi.org/10.5604/01.3001.0013.5914.
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The obligation to return the equivalent of an undue benefit is a special type of civil law monetary receivable resulting from the final and constitutive decision of the Commission for Restitution of Warsaw Real Estates1 issued pursuant to Article 31 of the Act of 9 March 2017 on Special Rules for Removing Legal Effects of Decisions on Restitution of Warsaw Real Estates issued in Violation of the Law2. Its implementation is one of the key tasks in shaping the rule of a lawful state, by eliminating the negative effects of Warsaw reprivatisation and compensating for damages that result from it. Receivables from the return of the equivalent of an undue benefit are enforced for the benefit of the Capital City of Warsaw; their final beneficiaries are entities that have suffered damage as a result of a reprivatisation decision. In accordance with the regulation, resulting from Article 31(5) of the Act on the Commission, its forced implementation takes place in the mode of administrative enforcement. The specificity of the analysed structure causes the creditor to assume a special role, which in the formal and legal sense is that of the Verification Commission, while in the material and legal sense that of the Capital City of Warsaw.
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Supartini, Oting, and Anis Mashdurohatun. "AKIBAT HUKUM AKTA PERJANJIAN KREDIT YANG DIBUAT NOTARIS DENGAN JAMINAN HAK TANGGUNGAN ADANYA KEPASTIAN HUKUM DAN KEADILAN PARA PIHAK." Jurnal Pembaharuan Hukum 3, no. 2 (2016): 200. http://dx.doi.org/10.26532/jph.v3i2.1443.
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The purpose of this study is the legal consequences arising out of the Credit Agreement with the guarantee of mortgage studies in case number 127 / Pdt.G / 2014 / PN.SMG, in the District Court of New York, How should a notary to make loan agreement with the Mortgage Guarantee ensure legal certainty.In this study, using juridical empirical method. Type and source of the data used in the primary and secondary data. Collecting data with the study of literature and the (observation, interviews and questionnaires). Analysis of data for qualitative descriptive. As a result of the law on the ratification of the creditors of the credit agreement by notary, with a guarantee of mortgage, based on the wording of Article 6 of Law No. I R 4 Year 1996 on Land and Other Bodies related to the land, the right to sell the object of mortgage on its own power is one embodiment of the priority positions (referent). And as a result of the law of the debtor apply Article 1338 of the Civil Code, Article 1243 applies, Article 1244KUHPerdata, and Article 1237, paragraph (2) of the Civil Code. The legal consequences of Notaries that have fulfilled the provisions of Article 1320 of the Civil Code in accordance with the obligations of and is not in violation of Article 16 on the obligation of, and in compliance with the Article 38, 39, 40 andArticle 44 paragraph (1), (2), (3) and paragraph (4), Law of Republic of Indonesia No. 30 2004 Jo No. 2 Year 2014 concerning Notary and do not violate the code of ethics of the notary, so that the act is still not degraded to act under the hand. Of a credit agreement with a guarantee of mortgage that guarantees the rule of law and justice of the parties, the fulfillment of Article 1320, Article 1321 of the Civil Code, and Notary must comply with Article 15 and Article 16 ofthe Law Notary, implement the Code of conduct and other Law.
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Габов, Андрей, and Andrey Gabov. "Procedure for Exercising of Creditors’ Rights under Reorganization." Journal of Russian Law 4, no. 5 (2016): 0. http://dx.doi.org/10.12737/19090.
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Reorganization of a legal entity entails significant risks for different stakeholders. These risks lie in the fact that as a result of reorganization of a legal entity, the structure of its assets and liabilities may cease to exist, or can significantly change. First of all, these risks affect creditors’ interests. Because of such risks the law provides special rights to creditors during reorganization of a legal entity – the debtor in respect of the obligation. Article 60 of the Civil Code of the Russian Federation grants creditors the right to demand early performance of obligations, should a legal entity – the debtor adopt the decision on its reorganization, and if early performance is not possible, to require the termination of obligations and compensation for losses. The article analyzes the procedure for exercising of creditors’ special rights during reorganization of a legal entity. The author analyzes the original text of the Civil Code and subsequent amendments. Relevance of the article is determined by the changes in the procedure for exercising of the rights of reorganized legal persons’ creditors, which were introduced to article 60 of the Civil Code in 2014. The author concludes that the legislator has failed to find a proper (optimal) balance of interests in the current regulation of the relations between creditors and reorganized legal entities — debtors.
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Thien, LE Nguyen Gia. "Time limit to file petition for the recognition and enforcement of foreign arbitral awards: a comparative perspective." ASA Bulletin 35, Issue 1 (2017): 95–107. http://dx.doi.org/10.54648/asab2017008.
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In most cases, the award debtor will perform his obligations voluntarily. However, if the debtor refuses to comply with the award, the award creditor can seek to have the award recognised and enforced before a competent court. A fundamental issue that the award creditor must consider is the time that is available for him to file a petition for the recognition and enforcement of a foreign award in a given jurisdiction. Statutes and case law address this matter differently. In some jurisdictions, the time limit to file a petition for the recognition and enforcement of a foreign award was very short, ranging from half year to 1 year. In other jurisdictions, time limits are set at 30 years. Still others provide time limits of 3, 5, 6 or even 10 years. This article draws a comparative picture of current statutes and case law relating to time limits for the recognition and enforcement of arbitral awards by analysing different jurisdictions from both civil and common law systems.
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Косарев, Кирилл Викторович. "Retaining as a way to ensure fulfillment of obligations (features of application in the criminal executive system)." Vestnik Kuzbasskogo instituta, no. 3(44) (September 25, 2020): 165–71. http://dx.doi.org/10.53993/2078-3914/2020/3(44)/165-171.
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Важное место в современной правовой доктрине занимают вопросы, связанные с обеспечением обязательств. Гражданским законодательством предусмотрены различные способы обеспечения исполнения обязательств. Данные способы направлены на стимулирование должника к исполнению обязательства и на восстановление имущественного положения кредитора в случае, если должником допущены правонарушения. Одним из таких способов является удержание. Несмотря на небольшое количество норм, регулирующих вопросы удержания, данный институт имеет широкий спектр применения. При этом нормы, регулирующие вопросы удержания, можно встретить не только в Гражданском кодексе РФ, но и иных нормативных актах. Некоторые вопросы правового регулирования удержания изучены недостаточно глубоко и фрагментарно, что определяет выбор темы исследования. Кроме того, удержание широко может применяться в уголовно-исполнительной системе, что поможет избежать возможных нарушений имущественных прав со стороны недобросовестных контрагентов. An important place in modern legal doctrine is occupied by issues related to securing obligations. Civil law provides for various ways to enforce obligations. These methods are aimed at stimulating the debtor to fulfill the obligation and at restoring the property status of the creditor in case the debtor has committed offenses. One of these methods is retention. However, it should be noted that despite the small number of rules governing retention, this institution has a wide range of applications. Moreover, the rules governing retention can be found not only in the Civil Code, but also in other regulations. It should be noted that some issues of the legal regulation of retention have not been studied sufficiently deeply and fragmentarily, which is why the author chose this topic for writing the article. In addition, withholding can be widely used in the penal system, which will help to avoid possible violations of property rights by unscrupulous counterparties.
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Mikryukov, V. A. "Inter-Branch Analogy in the Practice of Overcoming Gaps in the Legal Regulation of "Golden Parachute" Payments." Actual Problems of Russian Law, no. 7 (July 1, 2018): 100–107. http://dx.doi.org/10.17803/1994-1471.2018.92.7.100-107.
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The author of the article explains the advantages of using the method of inter-branch analogy and the use of established civil-law mechanisms to govern unsettled labor relations associated with the need to exercise judicial control over the amount of compensation paid for early dismissal to chief executive officers, their deputies, chief accountants of organizations in cases when dismissal occurs in the absence of any wrongdoing on behalf of an employee due to the change of ownership of the legal entity property or individuals controlling the legal entity. The author argues that lack of clear regulatory criteria applicable to determine the limits of discretion to establish the amount of such payments, legal uncertainty with respect of prior approval necessity and possibility of subsequent challenge of "golden parachutes" agreements on behalf of the beneficiaries of the organization constitute the most significant legal gap in the field in question. Due to the fact that a high degree of similarity was established with respect of the regime of transactions and labor agreements of top managers with regard to "golden parachutes" arrangements and a significant legal similarity was revealed between "golden parachutes" and civil law compensations paid to the creditor when the debtor exercised the right to unilaterally refuse to fulfill of the obligation, the author insists on doctrinal support for the application of rules applied to challenge major transactions and (or) interested party transactions to labor "golden parachutes" agreements, as well as the application of the mechanism of judicial reduction of abusive civil-law compensation to labor disputes in question.
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Riabchinska, A. "The relationship between fiduciary ownership as a means of ensuring the fulfilment of the obligation and pledge." National Technical University of Ukraine Journal. Political science. Sociology. Law, no. 4(48) (January 29, 2021): 110–17. http://dx.doi.org/10.20535/2308-5053.2020.4(48).233298.
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The relationship between fiduciary transfer of ownership for security purposes and pledge as the ways to ensure the fulfilment of the obligation is examined in the article. The usefulness of the distinction of mentioned ways of ensuring the fulfilment of the obligations as two essentially different rights in nature is substantiated. The article endorses the feasibility to qualify a pledge as a proprietary right to another’s property. The article reveals that according to national civil law the pledge is a quasi – ownership right unlike the fiduciary transfer of ownership for security purposes which expressly designated by law as a kind of ownership for the property. It is suggested that the pledge and the fiduciary ownership for security purposes should be related as special and model right accordingly. It is proved that the difference between mentioned proprietary ways of ensuring the fulfilment of the obligation are: functional relationship of primary obligation (pledge is accessory means of ensuring the fulfilment of the obligation which shall be terminated after termination of primary obligation whereas fiduciary ownership is non – accessory thus it is not terminated immediately after termination of primary obligation); degree of autonomy of security estate including bankruptcy proceedings (to a fiduciary ownership object, separated from personal fiduciary’s property, does not apply the moratorium on satisfaction of creditors’ claims, the property secured by fiduciary ownership is not part of the debtor’s liquidation mass, by contrast the pledged object is part of the liquidation mass and falls within the scope of such moratorium); foreclosure procedure (recovery of pledge object as a rule is done on execution by a court decision, as opposed to fiduciary ownership for security purposes which allow fiduciary to recovery the security property without reference to judicial procedure through the sale it to any third party and makes it possible to take ownership of it without restrictions on use and disposal).
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Kleinman, Ron S. "Contemporary Halakhic Decisors, Commercial Practices, and Civil Law." Review of Rabbinic Judaism 19, no. 1 (2016): 78–95. http://dx.doi.org/10.1163/15700704-12341294.
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This article explores the question of the familiarity of Jewish religious legal decisors with the commercial practices they are asked to address as well as the extent to which they base their rulings with regard to commercial practices on the relevant civil laws. These issues are discussed with respect to diamond merchants’ practice of consummating a diamond transaction with the words “mazel and broche.” Our analysis finds that decisors did not always differentiate between an obligation and an acquisition in general, and in a sales transaction in particular. It finds also that the decisors who addressed the issue of “mazel and broche” did not base their rulings on civil law, neither by virtue of “custom” and the law of situmta nor by virtue of the doctrine of dina de-malkhuta dina (“the law of the State is law”). We do find, by contrast, that some decisors validate payment by credit card and e-commerce based on civil law. This article offers several possible explanations for all these phenomena.
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Kurtulan Güner, Gökçe. "Rethinking the Need for Commercial Trusts in Civil Law Jurisdictions." European Review of Private Law 29, Issue 3 (2021): 463–88. http://dx.doi.org/10.54648/erpl2021024.
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In this article, the need for the adoption of trusts into civilian jurisdictions has been analysed by placing a special focus on commercial trusts. It has been argued that, the trust may offer an added value for these legal systems as it is more advantageous in terms of asset management, investment and financing purposes. In the context of asset management and investment, the trust is compared with the fiduciary contract and even though both legal instruments serve the purpose of separating management and beneficial ownership; it has been concluded that the trust fulfils this function more successfully thanks to both the property dimension and the obligation dimension that are incorporated into it. In the context of traditional financing, the advantage of the trust manifests itself in case of multi-source financing – more clearly, in case of loans acquired by multiple lenders. Here, the added value of the trust is apparent with regard to the composition of common security packages, which constitutes a significant advantage from various perspectives for both borrowers and creditors.
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Nola, Luthvi Febryka. "KEDUDUKAN KONSUMEN DALAM KEPAILITAN (THE POSITION OF CONSUMER IN BANKRUPTCY)." Negara Hukum: Membangun Hukum untuk Keadilan dan Kesejahteraan 8, no. 2 (2017): 255–70. http://dx.doi.org/10.22212/jnh.v8i2.1069.
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Bankruptcy and suspension of obligation for debt repayment is one of dispute resolution mechanisms that can be chosen by parties with an aim of solving the problem in an economical and transparent manner. This mechanism is regulated in Law No. 37 of 2004 of Bankruptcy and Suspension of Obligation for Debt Repayment (Insolvency Law). However, the Law has faced many problems in its implementation mainly related to consumer protection. This paper will discuss consumer position related to bankruptcy and its implementation. The author finds that consumer position in bankruptcy is not only govern by Insolvency Law but also by the Civil Code, Law No. 8 of 1999 on Consumer Protection, and Law No. 40 of 2014 on Insurance. The guidelines on those regulations have several problems, namely the lack of clarity and provision as well as violations of the principles of legislation. As a result consumer has a very weak position. Consumer is often categorized as concurrent creditor who will receive compensation only after separatist and preferential creditor. In contrast, the positions of the curator, the administrator, the supervisory judge are too strong that it allows for irregularities such as mafia practices in bankruptcy cases that harm the consumer. With regard to legal culture, law enforcement has acknowledged the position of consumer as a creditor in bankruptcy, but conversely judge’s verdict has not favored the consumer. This makes people prefer to resolve the dispute through ways other than bankruptcy. Therefore, the Insolvency Law needs to regulate the consumer position clearly; while regulation on its supervision also needs to be strengthened; and heavy sanctions should also be ordered against any misconduct by law enforcement authorities. Concurrently other laws need to adjust their rules with Insolvency Law for effective implementation. AbstrakKepailitan dan penundaan kewajiban pembayaran utang merupakan salah satu mekanisme penyelesaian sengketa yang dapat dipilih oleh para pihak dengan tujuan menyelesaikan masalah secara singkat murah dan transparan. Mekanisme kepailitan diatur dalam UU No. 37 Tahun 2004 tentang Kepailitan dan Penundaan Kewajiban Pembayaran Utang (UU Kepailitan). Namun dalam praktiknya UU Kepailitan memiliki banyak permasalahan terutama berkaitan dengan perlindungan konsumen. Tulisan ini akan membahas pengaturan kedudukan konsumen terkait kepailitan dan implementasinya. Penulis menemukan bahwa yang mengatur kedudukan konsumen dalam kepailitan tidak hanya UU Kepailitan akan tetapi juga KUHPerdata, UU No. 8 Tahun 1999 tentang Perlindungan Konsumen, dan UU No. 40 Tahun 2014 tentang Perasuransian. Pengaturan tersebut memiliki beberapa permasalah yaitu adanya ketidakjelasan dan ketidaksingkronan pengaturan serta pelanggaran asas peraturan perundang-undangan. Akibatnya dalam pelaksanaanya kedudukan konsumen menjadi sangat lemah. Konsumen kerap dikategorikan sebagai kreditor konkuren yang akan menerima ganti kerugian setelah kreditor separatis dan preferen. Sebaliknya, kedudukan kurator, pengurus, hakim pengawas sangat kuat sehingga memungkinkan terjadi penyimpangan seperti praktik mafia kepailitan yang merugikan konsumen. Berkaitan dengan budaya hukum, penegak hukum telah mengakui kedudukan konsumen sebagai kreditor dalam kepailitan hanya saja putusan hakim belum berpihak terhadap konsumen. Hal ini membuat masyarakat lebih memilih menyelesaikan sengketa melalui cara di luar kepailitan. Oleh sebab itu UU Kepailitan perlu mengatur kedudukan konsumen secara jelas; aturan tentang pengawasan juga perlu diperketat; dan sanksi yang tegas terhadap penegak hukum yang melanggar juga perlu diatur. Sedangkan UU lain perlu menyesuaikan aturan dengan UU Kepailitan supaya dapat dilaksanakan.
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Chirieac, Roxana Maria. "Considerations on penalty clauses: regulation and enforceability." Proceedings of the International Conference on Business Excellence 15, no. 1 (2021): 893–902. http://dx.doi.org/10.2478/picbe-2021-0082.
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Abstract Penalty clauses are regulated in the Romanian law through the provisions of the civil Code. These types of clauses are frequently inserted in commercial contracts in order to ensure that all contracting parties will respect their obligations, or will pay the pre-evaluated damages considered by the parties at the conclusion of the contract. As opposed to the common-law regulations, the continental law systems allow and support such clauses, mainly because of the liberty of the parties when concluding a contract; nevertheless, our legislation, as other European legislations allow the mutability of penalty clauses, when they are deemed excessive. In the present study, we aimed to analyze the nature of the penalty clause in the Romanian regulations, as well as study their applicability in commercial contracts, especially when inserted in contracts that are concluded over longer periods of time for the supply of services. We aim to understand if such a clause might be deemed inapplicable if one of the parties decides upon the termination of the contract ahead of term or simply wants to reduce the clause in order to pay a lesser penalty. The legislation states that such clauses may be amended by the court when part of the principal obligation was partly upheld by the party and its execution has profited the creditor, or when the penalty is “manifestly excessive” as opposed to the prejudice that could have been foreseen by the parties at the conclusion of the contract. Based on the current state of legislation, while analyzing doctrine and jurisprudence, we aim to underline what a manifestly excessive penalty should be.
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Norros, Olli. "Admissibility of a National Limitation Period Under the Principle of Effectiveness in EU Law." European Review of Private Law 28, Issue 5 (2020): 1113–42. http://dx.doi.org/10.54648/erpl2020065.
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Like most of the central legal questions in the field of civil law, the question when a debt becomes time-barred is not harmonized within the EU, but is governed by rules at national level. This applies normally even in situations where the grounds of the claim itself are based on EU legislation. In this situation the applicable national rules must meet the requirements of equivalence and effectiveness. The requirement of effectiveness provides that national procedural rules must not render the exercise of rights conferred by EU law virtually impossible or excessively difficult. This article analyses under what circumstances national limitation rules may become inconsistent with the principle of effectiveness. The finding is that in this assessment the most influential criterion is whether commencement of the limitation period is postponed until the creditor has or should have had the possibility to enforce their claim, or if the creditor has in any case had a real possibility to present a claim prior to expiry of the period. If the answer is negative, the question must then be asked whether this outcome, namely the creditor’s claim becoming time-barred, is justifiable by the objectives of the prescription regime, and whether the norms that led to this outcome are similar to corresponding norms in other legal systems. Perhaps the most important factor here is the length of the applicable ‒ expired ‒ limitation period. If it is seen as sufficiently long in proportion to its objectives and not particularly short in international comparison, the prescription regime should most likely be held as admissible in the light of the principle of effectiveness. Law of obligations, European Union law, prescription, limitation of actions, the principle of effectiveness