Статті в журналах з теми "Separate legal personality"
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1
Shashkova, Anna. "EMERGENCE AND EVOLUTION OF THE CONCEPT “SEPARATE LEGAL PERSONALITY”." Journal of Law and Administration, no. 1(42) (2017): 31–36. http://dx.doi.org/10.24833/2073-8420-2017-1-42-31-36.
2
Rybakova, S. V. "On separate aspects of financial legal objectivity in the conditions of digitalization of society and economy." Courier of Kutafin Moscow State Law University (MSAL)), no. 9 (November 7, 2020): 61–65. http://dx.doi.org/10.17803/2311-5998.2020.73.9.061-065.
Анотація:
This article is devoted to the consideration of the issues of transformation of financial legal personality in the context of the digitalization of society and the economy. The paper considers the concept and content of financial legal personality, features of the legal status of consumers of financial services, studies the problem of increasing financial literacy at the modern historical stage, analyzes the concept and principles of experimental legal regimes.
3
Ndzi, Ernestine. "The impact of the Salomon principle on directors’ remuneration in the UK." International Journal of Law and Management 59, no. 2 (March 13, 2017): 257–70. http://dx.doi.org/10.1108/ijlma-11-2015-0058.
Анотація:
Purpose This paper aims to examine the Salomon principle of separate legal personality and its impact on the regulation of directors’ remuneration in the UK. The aim of the paper is to explore the Salomon principle to determine whether it serves as a driving factor for directors’ remuneration levels. The paper will also examine the restrictive approach of the courts to move away from the principle and their reluctance to get involved in directors’ remuneration issues of a company. The paper explains the Salomon principle, describes the nature of the problem on directors’ remuneration and provides an analysis on how the Salomon principle impacts on the directors’ remuneration. Design/methodology/approach The paper reviews case law, statutory provisions and academic opinions on the directors’ remuneration and the concept of separate legal entity. The paper critically reviews the impact of the concept of separate entity on directors’ remuneration. Findings The paper finds that the courts are reluctant to come away from the concept of separate legal personality as well as reluctant to get involved with directors’ remuneration. This reluctance of the court makes the concept of separate legal personality to act as one of the drivers of directors’ remuneration. Originality/value The paper offers a different explanation into why directors’ remuneration continuous to be an issue in the UK. It points out that the concept of separate legal personality is a potential driver of directors’ remuneration in the UK.
4
Dondokov, Zhargal Darmaevich. "Civil legal personality of Local Self-government bodies." Юридические исследования, no. 6 (June 2022): 12–21. http://dx.doi.org/10.25136/2409-7136.2022.6.38292.
Анотація:
The article is aimed at revealing the problem of participation of local self–government bodies with the legal status of legal entities - institutions in civil legal relations, as well as at identifying ways to resolve it. At the practical level, the problem is expressed in the uncertainty in which cases local self-government bodies act in civil circulation on their own behalf, and in which cases on behalf of the entire municipality. Certain gaps in civil legislation today allow municipalities to create legal entities not only to establish the legal status of their bodies, but even to separate divisions of such a body. At the theoretical level, the problem is expressed in the choice of the optimal and most effective model of participation of the municipality through its bodies in civil legal relations and management of municipal property. Applying the formal legal method from the standpoint of a dialectical approach, the author examines the raised problem from the point of view of the applicability of the institution's design to local self-government bodies. As a result of his reflections, he comes to the conclusion that local self-government bodies are an integral part of a municipality, and therefore cannot be separated from it by putting on the mask of a legal entity. To do this, the author proposes to amend the civil legislation in terms of limiting the spheres of establishment of institutions to the social and cultural sphere, excluding the sphere of management from Article 123.22 of the Civil Code of the Russian Federation.
5
Podleś, Marcin. "Instytucja osobowości prawnej w okresie PRL jako narzędzie ograniczania autonomii jednostek przez państwo autorytarne." Studia nad Autorytaryzmem i Totalitaryzmem 43, no. 4 (December 31, 2021): 147–56. http://dx.doi.org/10.19195/2300-7249.43.4.12.
Анотація:
The purpose of this paper was to analyze how the regulation of legal personality by positive law affected the rights and freedoms of individuals in the period of the Polish People’s Republic. The possession of legal personality leads to the empowerment of an organization and facilitates it by pooling resources to achieve a certain goal. Having legal personality also gives an entity a certain autonomy vis-à-vis other entities, including its members and the state. The analysis has shown that in the period of the Polish People’s Republic, positive law was deliberately used to limit the possibility of creating entities with their own legal personality. The formal concept of a legal person was used instrumentally as a tool to impede the possibility of building an organization outside state control. It also led to a structurally incorrect and practically questionable recognition of the judicial capacity of entities that did not have legal personality. In addition, using the concept of an economic unit in the area of economy, a functional criterion was adopted to determine the participants of economic turnover, which also broke with the traditionally adopted in this respect approach based on legal personality. This led some of the representatives of civil law doctrine at that time to consider the institution of legal personality as useless, which testified to the fact that the legal environment and the applied mechanisms typical of an authoritarian state suppressed any autonomy and independence of interest underlying a separate legal personality.
6
Hager, Liesl. "The Insolvency Act’s deviation from the common law: Juristic ghost or aggregate approach?" South African Law Journal 138, no. 1 (2021): 152–70. http://dx.doi.org/10.47348/salj/v138/i1a7.
Анотація:
In this article I engage with the provisions of the Insolvency Act 24 of 1936 regulating the dissolution of the universal partnership upon insolvency. Our common law prefers an aggregate approach to partnerships, meaning that a partnership enjoys no separate legal personality distinct from its composing partners. The lack of separate legal personality of a partnership is described by some academics as a ‘remarkable defect’. The Insolvency Act however creates an exception to this general rule by deeming a partnership to be a separate legal entity. The Insolvency Act’s deviation from the common-law rule and creation of a ‘juristic ghost’ is explored in this article. The ‘dual priorities’ rule, the aggregate theory and the entity theory are explained in this article. Furthermore, the judicial debates about the Act’s deviation are discussed. In conclusion, it is suggested that the presumption that legislation does not intend to change existing law should not apply when dealing with the Insolvency Act, as the legislature has expressly deviated from the common-law aggregate approach.
7
Szabó, Eelco. "Gavi, the Vaccine Alliance." International Organizations Law Review 13, no. 1 (September 3, 2016): 149–70. http://dx.doi.org/10.1163/15723747-01301008.
Анотація:
This contribution puts a magnifying glass on the partner arrangements in Gavi, the Vaccine Alliance. Gavi has evolved from a loose partnership, bringing together the major stakeholders in immunization, to an organization in its own right with legal personality. The original partnership set-up remains a very important part of Gavi’s dna since it became an organization with separate legal personality. Together, Alliance partners aim to increase access to immunization in the poorest countries of the world. The manner in which this is achieved and the implications this may have on partner accountability or responsibility to third parties is described and analyzed.
8
Szereda, Kamil, and Jolanta Szymańska. "Independent public healthcare unit as an entrepreneur – considerations based on the Act on Medical Activity." Polish Journal of Public Health 125, no. 3 (September 1, 2015): 159–61. http://dx.doi.org/10.1515/pjph-2015-0045.
Анотація:
Abstract An entrepreneur is someone that engages in a business activity on their own behalf. An entrepreneur might be a natural person, legal person and an organizational unit without legal personality, to which the legal capacity is given by a separate act. Regarding the current legislation, Supreme Court rulings and opinions contained in publications, the authors discuss the legal aspects of entrepreneur’s running an autonomous public health care facility. Since the act on medical activity has become law, both the status of health care facilities and the case law concerning their status as enterprises changed.
9
Vereitin, S. V. "Some Problems of Legal Regulation of Employer’s Labor Legal Personality as a Party to Contract." Bulletin of Kharkiv National University of Internal Affairs 94, no. 3 (September 29, 2021): 49–57. http://dx.doi.org/10.32631/v.2021.3.04.
Анотація:
Scientific approaches to determining the employer’s labor legal personality within labor legal relations have been studied. The norms of the Labor Code of Ukraine and the drafts of the Labor Code of Ukraine in regard to labor legal personality of the corporate employer and the employer being an individual have been researched. It has been found out that the current Code of Labor Laws of Ukraine does not clearly define the moment of emergence of labor legal personality of the employer. Besides, labor law uses different terms to denote this aspect of the contract. It has been recommended to change all synonyms of the term of “employer” for the specified term in all acts of national legislation.
It has been stated that the employer can be any legal entity. The employer powers arise from the moment of state registration. Employer powers of legal entities are vested in officials (chiefs, directors, presidents, etc.) who are given the right to hire and fire employees. Separate divisions of legal entities may be employers, if the relevant legal entity delegates part of its authority to them in order to accept the dismissal of employees and the use of their labor.
It has been substantiated that we should rely on the full civil capacity of an individual while determining the employment status of the employer being an individual.
The author has offered to envisage the following norm in the Labor Code of Ukraine and in the future Labor Code of Ukraine: “An employer may be any individual who has reached the age of eighteen. An individual who has reached the age of sixteen and wishes to be engaged in entrepreneurial activity may be an employer with the written consent of the parents (adoptive parents), guardian or a guardianship authority. An individual has employment powers from the moment of state registration as an entrepreneur”.
10
Begishev, Ildar, Zarina Khisamova, and Vitaly Vasyukov. "Technological, Ethical, Environmental and Legal Aspects of Robotics." E3S Web of Conferences 244 (2021): 12028. http://dx.doi.org/10.1051/e3sconf/202124412028.
Анотація:
Robotics is considered by modern researchers from various positions. The most common technical approach to the study of this concept, which examines the current state and achievements in the field of robotics, as well as the prospects for its development. Also, quite often in recent years, legal experts have begun to address problems related to the development of robotics, focusing on issues related to the legal personality of robots and artificial intelligence, as well as the responsibility of AI for causing harm. A separate direction in the field of robotics research is the analysis of this concept and the relations associated with it, from the standpoint of morality, ethics and technologies.
11
Litvin, Il'ya. "ON THE QUESTION OF LEGAL PERSONALITY OF ARTIFICIAL INTELLIGENCE IN CRIMINAL PROCEEDINGS." Advances in Law Studies 10, no. 2 (June 14, 2022): 26–30. http://dx.doi.org/10.29039/2409-5087-2022-10-2-26-30.
Анотація:
The article deals with the question of the possible participation of artificial intelligence in criminal procedure relations. The author explores the existing points of view regarding the possibility of replacing a judge with artificial intelligence and comes to the conclusion that it is preferable to use artificial intelligence as an auxiliary technical tool. The author also considers the possibility of highlighting a separate category of cases for consideration by artificial intelligence, but in the order of a special stage of legal proceedings (preliminary or additional), while maintaining the ability to appeal against decisions made by artificial intelligence. In addition, the article discusses the possibility of using artificial intelligence to organize legal proceedings, oversee compliance with the law, as well as assist the investigator in finding, analyzing and recording information about the circumstances of the case and translating procedural documents into other languages.
12
SEAH, Daniel. "Problems Concerning the International Law-Making Practice of ASEAN: A Reply to Chen Zhida." Asian Journal of International Law 6, no. 2 (May 22, 2015): 265–93. http://dx.doi.org/10.1017/s2044251315000016.
Анотація:
The separate legal personality of ASEAN, an international organization, is a matter of some significance. ASEAN is capable of separate action and can carry rights and obligations on the international plane, as a distinct entity from its Member States. In this Journal, Chen Zhida advances the proposition that ASEAN is entitled to conclude treaties on behalf of its Member States, a practice which, it is argued, should be valid at international law. This paper responds by drawing attention to the difficulties with this argument on technical and conceptual grounds. For technical reasons, it is important to make a meaningful distinction in the ASEAN practice of concluding instruments such as Memoranda of Understandings, which can be distinguished from treaties. At a conceptual level, the treaty practice of ASEAN as a separate legal person must be based on what was consented to by Member States in the ASEAN Charter, a constituent instrument.
13
Loucaides, Loukis G. "THE PROTECTION OF THE RIGHT TO PROPERTY IN OCCUPIED TERRITORIES." International and Comparative Law Quarterly 53, no. 3 (July 2004): 677–90. http://dx.doi.org/10.1093/iclq/53.3.677.
Анотація:
The right to property was accorded the status of a human right as a result of its incorporation in international human rights instruments in the second part of the twentieth century. The right has acquired special importance as part of the freedom of the individual, his economic autonomy in modern democratic societies and generally as a significant element for the development of the individual's personality.1 Its recognition as a separate human right and its legal protection on an international level was the result of gradual efforts. It is still in the process of further legal elaboration, as regards both its scope and effect, by legal theory and jurisprudence.
14
Sikorska-Lewandowska, Aleksandra. "International Real Estate Review." International Real Estate Review 23, no. 1 (March 31, 2020): 137–49. http://dx.doi.org/10.53383/100297.
Анотація:
The number of housing communities in Poland is on the rise as they have a property right known as "separate ownership of the premises". Housing communities are now an important alternative to the still popular housing cooperatives. Housing cooperatives have many legal orders, and their legal status varies. Polish housing communities do not have legal personality, which raises questions about their legal status. The author of this article explains about the legal regulations around housing communities, analyses the contents of the Polish legal doctrine, and reviews important judgments regarding the legal character of housing communities. In conclusion, the author recognizes Polish housing communities as "defective legal persons", i.e., they are subject to rights that are independent of those of the owners of premises and therefore have legal capacity. In this respect, the Polish model bears similarity to the model adopted in the German legal system.
15
Alcock, Alistair. "SHAREHOLDERS RIGHTS." Denning Law Journal 20, no. 1 (November 23, 2012): 253–54. http://dx.doi.org/10.5750/dlj.v20i1.337.
Анотація:
Robin Hollington QC, 5th ed, (Sweet & Maxwell, London 2007) Hardback ISBN 9781847030221 £155Now in its fifth edition, this work by a leading practitioner in the area has become very well established. Despite its name, it covers a wide area, setting possible shareholder claims in the general framework of company law, separate legal personality, the statutory contract, majority rule and a quite detailed look at directors’ duties.
16
Shakhnazarov, B. A. "Legal Regulation of Relations Using Artificial Intelligence." Actual Problems of Russian Law 17, no. 9 (June 6, 2022): 63–72. http://dx.doi.org/10.17803/1994-1471.2022.142.9.063-072.
Анотація:
Artificial intelligence systems constitute the most important tool for overcoming modern challenges the society is facing, including at the international level. With the help of artificial intelligence, the solution of a number of social, economic and other problems is simplified. The systematic use of artificial intelligence in specific activities generates a number of specific legal problems. The paper examines problems of implementing various relations using artificial intelligence, including procedures ensuring the rights of citizens, creating the results of intellectual activity and NFT tokens. Particular attention is focused on the need to adopt harmonizing acts, such as the Model Convention on Robotics and Artificial Intelligence, the main purpose of which is to formulate approaches to regulating relations using artificial intelligence and subsequently adopt a single internationally unified act. The author analyzes the problems of the legal personality of artificial intelligence and the current legislation of Russia and the EU in the sphere of relations under consideration. Denying the independent legal personality of AI, the author notes that a special form of organization of AI activities can be perceived in legislation in the presence of separate property, monetary funds with the mandatory designation of persons controlling the activities of AI, in accordance with established legislation, including through the proposal of a new special organizational and legal form of a legal entity — a society organizing the activities of the artificial intelligence system or a society responsible for the activities of the artificial intelligence system.
17
Bieluk, Jerzy. "River as a Legal Person." Studia Iuridica Lublinensia 29, no. 2 (June 21, 2020): 11. http://dx.doi.org/10.17951/sil.2020.29.2.11-23.
Анотація:
<p>The concepts of recognizing elements of nature as having legal personality have been appearing for many years as proposals for a new approach to ecology. Recent years have brought specific solutions in this regard. Attempts to recognize rivers (but not only rivers) as separate legal entities can be found in various places around the world. This is not a common trend, only a few such cases can be identified in the applicable legislation. The article is devoted to the analysis of the best-known examples of this type of activity. In 2017, the legal system of New Zealand recognized the Whanganui River as a legal person. Talks are ongoing about further solutions of this kind. Apart from environmental protection reasons, the basic motives for this type of solution are cultural considerations – connected with Maori beliefs and values. In the legal systems of India and Colombia, the courts have attempted to recognize the rivers (Ganges and Yamuna in India, the Atrata River, and the entire Amazon ecosystem) as legal persons. The motives for this type of activity were primarily ecological – protecting priceless parts of nature from destruction.</p>
18
Ruzinazarov, Shukhrat, and Liliya Achilova. "SOME ASPECTS OF HUMAN LEGAL PROTECTION AND DIRECTIONS OF DEVELOPMENT OF COPYRIGHT TO THE HUMAN BODY IN VIRTUAL SPACE." Review of Law Sciences 6, no. 1 (March 15, 2022): 46–53. http://dx.doi.org/10.51788/tsul.rols.2022.6.1./lsqa7252.
Анотація:
This article reveals various approaches and scientific concepts of human status in the virtual space. The author defends the idea that the formation of legal protection and a special electronic culture takes place in the life of modern society since it affects the change of its values. The subject of a separate analysis was the concept of digital personality in the process of computer games and interaction on social networks, which, at the same time, are among the most obvious ways of entering virtual reality. The virtualization of consciousness, the expansion of digital reality and many other processes related to ICT and the Internet - all requires constant modernization of legislation in the virtual space, and the gradual development of the concept of «digital personality» and «digital avatar». The author defends these ideas using the achievements of modern legal science and the conclusions of constructive analysis.
19
Dine, Janet, and Janet Dine. "The Three Shades of Tax Avoidance of Corporate Groups: Company Law, Ethics and the Multiplicity of Jurisdictions Involved." European Business Law Review 30, Issue 1 (February 1, 2019): 149–81. http://dx.doi.org/10.54648/eulr2019006.
Анотація:
In 2011 Apple’s Irish subsidiary had a profit of 16 billion Euros but only 50 million of them were charged as tax in Ireland. Apple ended up paying a tax rate of only 0.005% in 2014 on the profits of its Irish subsidiary down from an anyway low 1% in 2003. This is but one example of so-called “jurisdiction arbitrage” by which large companies avoid or evade liabilities. Company law provides the multinationals with the legal tools which enable tax avoidance. MNEs, which are a series of inter-linked companies formed in various national legal systems, incorporate subsidiaries in jurisdictions which provide them with legal yet unethical tax loopholes. Basic company law principles such as the principle of separate legal personality and limited liability have evolved into a veil which protects multinationals from external control on their tax affairs at multiple levels. Each member of the group is deemed as of independent from each other in most instances. Yet, taxing its profits within the jurisdiction where they were actually produced could prove impossible. The article argues that the principles of separate legal personality and limited liability in their current form are unfit for corporate groups when issues of taxation are at stake. They should be significantly reformed, so that each member of the group is viewed as established in the member state where it operates with its revenues shielded and – most importantly – taxed in that jurisdiction. When this proves to be too difficult or complicated, the corporate veil should be lifted altogether and the mother company of the group should be taxed for the entire set of profits made by all the members of the group in the EU.
20
Tweedale, Geoffrey, and Laurie Flynn. "Piercing the Corporate Veil: Cape Industries and Multinational Corporate Liability for a Toxic Hazard, 1950–2004." Enterprise & Society 8, no. 2 (June 2007): 268–96. http://dx.doi.org/10.1017/s1467222700005863.
Анотація:
The ‘corporate veil’ refers to the separation of legal identity between parent firms and their subsidiaries, which gives the parent protection against the liabilities of its subsidiaries. Fearing that such liability protection would facilitate illicit activity, early twentieth century courts, especially in America, would sometimes ‘pierce’ the corporate veil. This article explores Adams v. Cape (1990), in which American plaintiffs attempted to persuade the English courts to lift the corporate veil and impose liability for industrial disease on Cape Industries, a leading U.K. asbestos manufacturer. This landmark case shows how corporate strategy can be closely intertwined with international corporate law and occupational health and safety issues. It also highlights how limited liability law and separate legal personality can result in significant injustice to claimants against multinational enterprises.
21
Davydova, Iryna, Serhii Zhurylo, Viktoriya Tomina, Viesna Fuchedzh, and Vira Tokareva. "Legal aspects of the regulation of social relations with the participation of Artificial Intelligence." Revista de la Universidad del Zulia 13, no. 38 (September 8, 2022): 487–500. http://dx.doi.org/10.46925//rdluz.38.28.
Анотація:
The objective of the work is to study the legal aspects of the regulation of social relations with the participation of artificial intelligence, as well as to analyze the features of such regulation taking into account international experience and recommendations of competent institutions. Although traditional legal doctrine emphasizes that legal norms regulate relations between people, the social relations with the participation ofartificial intelligencedevelop rapidly. Thus,it is essentialto analyze the legal aspects of the regulation of social relations with the participation of artificial intelligence, highlight the features and pay attention to the further development of such relations. The methodology of the research includes: method of comparison, historical method, system method, method of analysis and synthesis. As a result of the research the legal aspects of regulation of social relations with the participation of artificial intelligence are studied. In particular, the regulation of artificial intelligence depends on the positioning of such a phenomenon in social relations (only as an object; as a separate entity; positioning of both individual entities and the possible object of such legal relations). It was also emphasizedthat the study of the legal personality of artificial intelligence requires further scientific substantiation using international standards.
22
Rahmi Yuniarti. "KAJIAN FILOSOFIS TENTANG KONSEP TANGGUNG JAWAB TERBATAS PADA PERSEROAN PERORANGAN GUNA MEMBERIKAN PERLINDUNGAN HUKUM PADA UMKM." JOURNAL EQUITABLE 7, no. 1 (June 1, 2022): 49–61. http://dx.doi.org/10.37859/jeq.v7i1.3687.
Анотація:
Hadirnya perseroan perorangan merupakan suatu perkembangan baru dalam hukum perusahaan yang mana pada awalnya pendirian perseroan tidak terlepas dari perjanjian sebagai dasar pembentukannya, akan tetapi dengan kemunculan perseoran perorangan ini cukup memiliki perbedaan dasar aturan-aturan sebelumnya mengenai hukum perusahaan. Rumusan masalah pada tulisan ini adalah mengenai konsep tanggung jawab terbatas pada perseroan perorangan guna memberikan perlindungan hukum pada UMKM ditinjau dari sudut kajian filosofis. Tujuan dari tulisan ini adalah untuk menemukan dan menguraikan konsep tanggung jawab terbatas pada Perseroan Perorangan menurut sudut kajian filosofis. Jenis penelitian yang digunakan penulis dalam penelitian ini adalah bersifat penelitian hukum normatif. Konsep perseroan perorangan di Indonesia dengan tanggung jawab terbatas yang terdapat pada UU Cipta Kerja dengan tanggung jawab terbatas merupakan bentuk badan hukum yang memberikan perlindungan hukum kepada para pelaku usaha. Sejalan dengan doktrin corporate separate legal personality yang esensinya bahwa suatu perusahaan, dalam hal ini perseroan, mempunyai personalitas atau kepribadian yang berbeda dari orang yang menciptakannya
23
Kusuma, Ng Catharina Enggar, and Fl Yudhi Priyo Amboro. "Doing the Corporate Business with Piercing the Corporate Veil Doctrine: Indonesia, Us And Uk Perspective." Sociological Jurisprudence Journal 3, no. 2 (August 7, 2020): 126–29. http://dx.doi.org/10.22225/scj.3.2.1832.126-129.
Анотація:
The absence of piercing the corporate veil doctrine in the Indonesian company law shows that the subsidiaries of such corporate groups are considered a separate legal personality, hence it is probably almost impossible to held the parent company liable for its subsidiaries’ legal actions under any conditions. This research adopted a normative legal research with a comparative law study method. The goal of this research is describe the implementation of piercing the corporate veil doctrine in Indonesia, US and UK, then to make the points of contribution of this doctrine to be regulated properly in Indonesia. In fact, piercing the corporate veil doctrine is implemented in Indonesia, although there was not any normative legal basis of the doctrine itself, whereas in US and UK, the doctrine is implemented and further developed through precedents. Therefore, since there is an evident relationship between a parent company and its subsidiary, whereby in certain cases the parent company can and should be held liable for the acts of its subsidiary, there should be a more explicit regulation regarding both corporate groups and piercing the corporate veil doctrine.
24
Davydiuk, V. M. "Separate Aspects of Saving the Confidentiality of People Collaboration With Law Enforcement Bodies." Bulletin of Kharkiv National University of Internal Affairs 85, no. 2 (May 29, 2019): 95–104. http://dx.doi.org/10.32631/v.2019.2.09.
Анотація:
The organizational and legal provision of security of confidential cooperation in Ukraine has been analyzed. The information on modern problems of ensuring security of the Institution of confidential cooperation has been systematized. The risks arising during the confidential cooperation have been outlined. The author has raised the issue of keeping the balance in ensuring security of a confidant’s personality on the one hand and the need of procedural recording of the information obtained from the confidant on the other hand. Normative and legal regulation of protecting confidants in Ukraine and abroad has been compared. The problematic issues of guarantees for the protection of confidants in the Ukrainian legislation have been revealed; the ways to solve them have been offered. The protective mechanisms that in one form or another should be applied to the confidants have been analyzed: guarantees of social and legal protection, restrictions on the use of certain categories of persons as confidants, etc. The issue of ensuring the safety of the confidants after the cooperation with law enforcement agencies has been raised. The author has offered to establish appropriate security measures for such confidants, to determine the reasons and grounds for the application of such measures, and to outline the mechanism of the implementation of such measures at the regulatory level.
The limits of permissible behavior of confidants during the fulfillment of crime counteraction tasks have been studied. It has been offered to supplement the Art. 43 of the Criminal Code of Ukraine with the norm that would extend the rights of persons who under the law, perform a special task by participating in an organized group or criminal organization, to confidants, who assist law enforcement agencies in preventing and/or investigating a serious or particularly serious crime.
In the context of involving a confidant in accomplishing the tasks of criminal investigation, the author has offered to provide a separate, secret investigative (search) action, which, by analogy with the norm of the Art. 272 of the Criminal Procedural Code of Ukraine should be conducted according to the resolution of an investigator, agreed with the head of the pre-trial investigation agency, and the decision of a prosecutor.
25
Ivanytskyi, A. V. "CORRELATION OF FACTORING AGREEMENT WITH CERTAIN TYPES OF CONTRACTS IN UKRAINE." Actual problems of native jurisprudence, no. 4 (August 30, 2019): 45–49. http://dx.doi.org/10.15421/391910.
Анотація:
The legal construction of a factoring contract has separate features similar to other business agreements. At the same time, factoring is characterized by a number of certain features, which makes it possible to distinguish it as an independent type of economic agreement with its own, specific legal regulation. Doctrinal literature suggests that factoring is not a separate type of obligation, but is instead considered as a subspecies or specific form of other treaties. In order to refute such judgments, we consider it necessary to clarify the difference between factoring agreements and related categories. The article improves the comparative characteristics of the factoring contract and the cession contract – a number of different characteristics are revealed, which allow to differentiate factoring relations from the relations of the cession. Using the comparative method, the differences of the contract of faking from the different types of contracts are investigated on the basis of the subject of contracts, independence, payment, formof conclusion of contracts, legal personality of the parties, sources of legal regulation, complex nature, etc. Further developed the provision on the economic and legal nature of the factoring agreement, which objectively corresponds to its nature, features and characteristic specificity, based on the analyzed theoretical approaches to determining the legal nature of the factoring agreement, foreignexperience, case law and case law international law and the author’s own positions. It is proved that the factoring contract is an independent and complete economic obligation, which has its own characteristic features and features that make it possible to distinguish the factoring contract with similar legal structures. On the basis of a systematic study of the relation of the factoring contract with certain types of contracts, new scientific provisions have been developed, and proposals for improvement of legislation on a number of issues have been substantiated.
26
Naumenko, Evgenii Aleksandrovich, and Olga Nikolaevna Naumenko. "Features of the Psychographic Portrait of the Residents with Criminal Record living in Northern Territories and the Arctic Zone of the Khanty-Mansi Autonomous Okrug-Yugra and Yamalo-Nenets Autonomous Okrug." Психолог, no. 1 (January 2023): 1–13. http://dx.doi.org/10.25136/2409-8701.2023.1.38854.
Анотація:
The psychographic features of the personality of residents of various regions of the Russian Federation are an interesting and insufficiently studied phenomenon from the standpoint of psychological knowledge. In our opinion, it is convenient to present such a phenomenon in the framework of personality research in the form of a psychological portrait - a kind of model structure reflecting the psychological characteristics of the object of research. The subject of the study is the elements of the psychological portrait of the personality of the studied contingent, the features of which constitute the content of the model of the psychographic portrait of the inhabitants of the northern territories. The parameters and model characteristics of the personality of the studied sample of residents of the region may be of interest to a wide range of very different practices – pedagogical, managerial, legal, professional and others. Separate, compositional parameters of model characteristics are presented in the study, which will form the basis of a general psychographic model of the personality of residents of the northern regions of Khma-Yugra and YANAO who have experience of illegal behavior. Such research is relevant and oriented in the practice of pedagogical, legal work with the population of the marked regions. If possible, a similar practice of scientific research on the presented topic can be transferred to other regions of the North and the Arctic zone of the Russian Federation. The solution of this task is a systematic part of the research project of the Russian Academy of Sciences under the general title "Experience in the application of customary law, history and humanization of penitentiary institutions of Ugra within the framework of European and Russian traditions (late XVI - early XXI centuries)". The research is of practical importance and its results, we hope, will be in demand by specialists from a wide range of various social practices. The main, generalized conclusion of the study is statistically confirmed personality traits of the studied contingent, reflecting the model characteristics of their originality regarding illegal behavior.
27
Almaharmeh, Mohammad Mahjoob. "Compensating a Legal Person for Moral Damage in Jordanian Law." Journal of Politics and Law 15, no. 2 (January 3, 2022): 1. http://dx.doi.org/10.5539/jpl.v15n2p1.
Анотація:
The issue of compensating the legal person for the moral damage it causes to it has raised a great argument of controversy in Jordan, especially in light of the refusal to recognize the rights attached to the natural person of the legal person. This research came to identify the legal nature of the legal personality and the moral damage and the position of the Jordanian law on it, and to determine the feasibility, adequacy and appropriateness of the legal texts contained in the Jordanian civil law in knowing the extent to which the legal person may be compensated for moral damage. Using the opinions of jurists and judicial and explanatory decisions, the researcher has found that moral damage has multiple forms, a research that arises from the act and assault carried out by the aggressor. As a result, it is not appropriate to limit moral damage to rigid legal texts based on what is stated in the legislation and decisions of the esteemed Court of Cassation, as the researcher recommends. The Jordanian legislator should include general provisions clarifying the civil liability of the legal person, and the researcher recommends a separate chapter in the civil law to talk about the moral damage and its multiple meanings and aspects and how to rule for compensation and claim it.
28
ILANA, Ana. "The Entrepreneurs’ Organisation into Several Forms of GROUPS under the Law." Journal of Business Theory and Practice 6, no. 3 (July 13, 2018): 222. http://dx.doi.org/10.22158/jbtp.v6n3p222.
Анотація:
<em>An Economic Interest Group is a form of organisation for participants in an economic or civil activity that has been under regulation in Romania for more than 10 years, nevertheless it is quite rare in the business world today. There is some reluctance to use this form of organisation, which is often mistaken for a Group of Companies, a much more common form, but which has no recognition in terms of a legal person status, i.e., the Group of Companies is not a separate entity with legal personality. The need to bring this form of organisation under regulation was justified by an intention to support the harmonious development of economic activities, as well as their ongoing and balanced expansion throughout the European Community, for the proper working of a single market which offers conditions similar to the those of a national market.</em>
29
Lankosz, Kazimierz. "Considerations on Limits to Dynamic / Evolutive Interpretation of Constituent Instruments of International Organizations (with the Particular Reference to the UN System)." Eastern European Journal of Transnational Relations 5, no. 1 (2021): 7–16. http://dx.doi.org/10.15290/eejtr.2021.05.01.01.
Анотація:
International organizations, for the purpose of further considerations are these established by multilateral treaties constituting their internal legal order and establishing legal personality for them, which is independent and separate from their member states. The emphasis in this article is on the UN and its Specialized Agencies. Since in practice their constituent instruments are interpreted on the daily basis in the continuous process of performing their functions and filling the gaps, some of extensive interpretations may lead to informal modifications of the constitutional instruments. To examine whether there are any limits to the dynamic / evolutive (extensive) interpretations is of grave significance both for international law doctrine and practice, as well as political reality. In conclusion: the Report and the IDI Resolution adopted on 4th September, 2021, are the good ground for better understanding of recent developments in the daily lives of the UN System.
30
LÓPEZ LATORRE, Andrés Felipe. "In Defence of Direct Obligations for Businesses Under International Human Rights Law." Business and Human Rights Journal 5, no. 1 (January 2020): 56–83. http://dx.doi.org/10.1017/bhj.2019.27.
Анотація:
AbstractThis article presents three arguments on why businesses have direct obligations under existing international law. Nevertheless, in the present state of international law, the obligations of businesses are limited and wholly dependent on the state’s further action of implementation and enforcement. To reach this conclusion, the article asserts that businesses have partial legal personality in international law; that legal obligations and the enforcement model must be distinguished as two separate issues; and that human rights are requirements of justice that emanate from the dignity of each human person to any social actor, including businesses and other non-state actors. The article attempts to contribute to the debate about a binding instrument on business and human rights and presents an alternative understanding of international law that can assist domestic tribunals in applying international human rights standards to businesses as they carry out activities in their jurisdictions.
31
Zmysłowska, Magdalena. "Odpowiedzialność przebijająca w prawie amerykańskim i włoskim." Prawo w Działaniu 34 (2018): 73–136. http://dx.doi.org/10.32041/pwd.3402.
Анотація:
The paper discusses issues relating to piercing of the corporate veil in the context of protecting company creditors. The notion of piercing the corporate veil comprises any situations when a company’s autonomy vis-a-vis the members or that of the members vis-a-vis the company or other related entities is somewhat relativised due to finding circumstances that prove an abuse of the norms concerning separate legal personality of a company. The purpose of this mechanism in some legal orders is an attempt at eliminating dishonest actions of such entities that abuse the privilege of legal personality. Therefore, the piercing of the corporate veil is a response to the demands of economic transactions and is intended to ensure additional protection to creditors of companies or creditors of members of companies. Within the framework of the paper, the issues relating to piercing the corporate veil are analysed in the context of US and Italian law. In the discussion of the particularities of the US system, the basic theories of piercing of the corporate veil formulated by US legal scholars are presented, along with the way these theories are applied in those states where judgments relating to piercing the corporate veil are the most frequent, that is, New York, Texas, California, and Delaware. In turn, the Italian Republic is among the few European states where laws regulating the liability of the parent company to creditors of its subsidiaries were introduced. Consequently, an analysis of the Italian provisions may be important in the context of drawing conclusions for research problems concerning the system of Polish law.
32
Гутников, Олег, and Olyeg Gutnikov. "Responsibility before creditors in the corporate relations: tendencies and prospects of development of rules of law." Journal of Russian Law 2, no. 7 (September 18, 2014): 20–31. http://dx.doi.org/10.12737/4820.
Анотація:
This article is about the corporate disregard. Explicates the main principle of corporate law — separation of legal entity (separate legal personality) and separation of corporate property from person and property of participants of that corporation (separation principle). Author analyzed norms of the existing legislation, which are departing from this principle and allow cases to make the founders of a legal entity (or other persons having the ability to determine the actions of the legal entity) accountable for the obligations of that legal entity. Define the boundaries of application of the “piercing the corporate veil” doctrine, on the creation the legal rules on the liability to creditors of the legal person founders and other persons. The author concludes that the application of the “piercing the corporate veil” doctrine is possible only in case of corporate property deficiency during the creation or liquidation of juridical persons. Proposed to extend the relevant uniform rules on any legal entity. At the same time substantiates the thesis against use of the “piercing the corporate veil” doctrine during the existence of the legal entity as violating “the principle of separation”. The author writes about necessity exemption in applicable law cases of the “piercing the corporate veil” doctrine during the existence of the legal entity. Also attention turn to the vagueness of “reverse veil piercing” doctrine in the domestic law, when it concern the interests of the creditors-participating entity, in cases when it is possible to hold a legal entity accountable for the debts of its founders (participants) or the owner of the property.
33
Phiri, Siphethile. "Piercing the corporate veil: A critical analysis of section 20(9) of the South African Companies Act 71 of 2008." Corporate & Business Strategy Review 1, no. 1 (2020): 17–26. http://dx.doi.org/10.22495/cbsrv1i1art2.
Анотація:
When a company is incorporated it becomes a juristic entity with rights and obligations of its own and is distinct from its shareholders and directors. Hence, company liabilities are not those of its shareholders and directors. However, section 20(9) of the Companies Act 71 of 2008 grants the court the discretion to disregard the corporate veil where there is an unconscionable abuse of the juristic personality so as to impose personal liability upon directors or any other person involved in that transaction. However, the section fails to define what constitutes “unconscionable abuse” which is the key to the application of that provision. This research thus seeks to discover what constitutes unconscionable abuse of the juristic personality. Simply put, this research aims to identify the circumstances under which the corporate veil may be pierced. The results from this extensive inquiry are that the term ‘unconscionable abuse’ is a legislative derivate from the various terms used by the courts at common law to justify the disregarding of the separate legal personality of the corporate entity. Therefore, the inescapable conclusion reached is that just as those terms used at common law are confounding, so shall this rather legislative innovation remain to be confounding until a specific meaning is assigned to it by the parliament.
34
Hasińska, Izabela. "Status prawny spółki cywilnej jako beneficjenta pomocy dla rolników (zagadnienia wybrane)." Studia Iuridica 72 (April 17, 2018): 165–77. http://dx.doi.org/10.5604/01.3001.0011.7593.
Анотація:
The paper discusses the issues relating to classifying a private partnership as a separate entity – an agricultural producer. Such a classification affects the existing arrangements both in civil-law theory and practice. It goes beyond the traditional division of legal entities into natural and legal persons and confers upon a private partnership the features of an individualized and specific organizational unit. It also excludes a partner (or partners) of a private partnership from the group of entities eligible to apply for and to be granted an agricultural subsidy, which consequently results in questing statutory rules of cooperation within a private partnership. The paper aims at assessing the laid down criteria and indicating solutions relating to various opinions on legal nature of a private partnership. Additionally, the article points out the regulations which decide about the active capacity of a given entity. The Author concludes that a private partnership is nothing other than a form of cooperation among entrepreneurs-partners. If there is no entity but only the obligation to cooperate, it makes it difficult to give such an obligation a status of an agricultural producer. The legal construct of this relationship includes a clear regulation specifying who and how acquires the rights – the entitled partners and for the benefit of partners. Granting legal personality to a private partnership is against the intention of the legislator.
35
Allen, J. G. "THE OFFICE OF THE CROWN." Cambridge Law Journal 77, no. 2 (May 21, 2018): 298–320. http://dx.doi.org/10.1017/s0008197318000338.
Анотація:
AbstractA troubling veil of mystery still shrouds the central institution of the British Constitution – the Crown. In this paper, I examine the modern utility of five historical doctrines: the doctrine of the “King's two bodies”; the doctrine that the Crown is a “corporation sole”; the doctrine that the King can “do no wrong”; the doctrine that (high) public offices are “emanations” of the Crown; and the doctrine that the Crown is “one and indivisible”. Using some insights from social ontology, the history of office in the Western legal tradition, and the sociology of role and status, I argue that the first four of these doctrines can be refashioned into a conception of the Crown as an office. An office is an enduring institutional entity to which individuals bear a relationship from time to time, but which is separate from any individual incumbent and is to be considered in legal analysis as a separate acting subject. Using the logic of office, official personality and official action, I distinguish between the Queen, the Crown, Her Majesty's Government and the Commonwealth and argue that together they provide a serviceable model of the modern British Constitution. The final doctrine, however, must be abandoned – the Crown is plural and divisible and this must be taken into account when using the Crown to reason about the UK's relationship to other constitutional orders.
36
Vershok, I. L. "Interdisciplinary Approach to the Analysis of the Dynamics of Legal Consciousness." Siberian Law Review 17, no. 4 (December 31, 2020): 438–54. http://dx.doi.org/10.19073/2658-7602-2020-17-4-438-454.
Анотація:
The article deals with the dynamic aspects of legal consciousness. It is concluded that the traditional definition of legal consciousness as a set of emotions, ideas and feelings about the current and previously valid law was formed on the basis of the dominant materialistic concept as the ideological basis of knowledge in jurisprudence. Its use as a universal method determined the study of certain aspects of legal consciousness as an object of research activity, existing in the form of a reflection of the surrounding (legal) reality. As a result, the definition of legal consciousness in statics was formed, due to the analysis of individual external (materialized) signs of its manifestation (exteriorization). The existing lack of data on the peculiarities of the internal processes of the dynamics of legal consciousness was compelled to compensate for the study of mental processes and their corresponding parameters only on the basis of introspection. The article clearly demonstrates that this approach leads to various kinds of distortions, entailing errors in solving the fundamental problems of defining the phenomenon of legal consciousness, as well as a decrease in the quality of the practice of lawmaking and law enforcement. In order to overcome the gap that has arisen in theoretical and applied research, it is proposed to consider legal consciousness as a subject of scientific knowledge by constructing an integral theoretical scheme of its dynamics (flow) as a complex socio-psychological process. For this, an interdisciplinary approach is applied to the study of the dynamics of legal consciousness, on the basis of which a number of practical data from psychology, sociology, and cybernetics are synthesized. The definition of legal consciousness is formed on the basis of the decomposition of the concept into separate stages of legal consciousness with an analysis of their functional parameters. The main stages of the course of legal consciousness are recognized as the perception of the subject of legal regulation and its mediating legal norms with the formation of separate perceptual images, then – the corresponding perceptual activity with a certain centralization and cognitive processes with a possible result in the form of constructing mental schemes. The key parameters of legal consciousness are the generic-specific connection with consciousness, the absence of discreteness, as well as the specific formally-legally determined intentional orientation, temporality, coherence and tension of legal consciousness due to the subject's readaptation. Moreover, the target orientation, coherence and tension are largely predetermined by the methods and content of legal impact. As examples illustrating the proposed scheme of dynamics of legal consciousness, the phenomena of the so-called deformation of legal consciousness, approaches to the definition of subjectivity and legal personality, structural and substantive aspects of legal capacity and legal capacity, parameters of the subjective side of the offense, problems of professional legal consciousness and a number of other applied issues.
37
Vershok, I. L. "Interdisciplinary Approach to the Analysis of the Dynamics of Legal Consciousness." Siberian Law Review 17, no. 4 (December 31, 2020): 438–54. http://dx.doi.org/10.19073/2658-7602-2020-17-4-438-454.
Анотація:
The article deals with the dynamic aspects of legal consciousness. It is concluded that the traditional definition of legal consciousness as a set of emotions, ideas and feelings about the current and previously valid law was formed on the basis of the dominant materialistic concept as the ideological basis of knowledge in jurisprudence. Its use as a universal method determined the study of certain aspects of legal consciousness as an object of research activity, existing in the form of a reflection of the surrounding (legal) reality. As a result, the definition of legal consciousness in statics was formed, due to the analysis of individual external (materialized) signs of its manifestation (exteriorization). The existing lack of data on the peculiarities of the internal processes of the dynamics of legal consciousness was compelled to compensate for the study of mental processes and their corresponding parameters only on the basis of introspection. The article clearly demonstrates that this approach leads to various kinds of distortions, entailing errors in solving the fundamental problems of defining the phenomenon of legal consciousness, as well as a decrease in the quality of the practice of lawmaking and law enforcement. In order to overcome the gap that has arisen in theoretical and applied research, it is proposed to consider legal consciousness as a subject of scientific knowledge by constructing an integral theoretical scheme of its dynamics (flow) as a complex socio-psychological process. For this, an interdisciplinary approach is applied to the study of the dynamics of legal consciousness, on the basis of which a number of practical data from psychology, sociology, and cybernetics are synthesized. The definition of legal consciousness is formed on the basis of the decomposition of the concept into separate stages of legal consciousness with an analysis of their functional parameters. The main stages of the course of legal consciousness are recognized as the perception of the subject of legal regulation and its mediating legal norms with the formation of separate perceptual images, then – the corresponding perceptual activity with a certain centralization and cognitive processes with a possible result in the form of constructing mental schemes. The key parameters of legal consciousness are the generic-specific connection with consciousness, the absence of discreteness, as well as the specific formally-legally determined intentional orientation, temporality, coherence and tension of legal consciousness due to the subject's readaptation. Moreover, the target orientation, coherence and tension are largely predetermined by the methods and content of legal impact. As examples illustrating the proposed scheme of dynamics of legal consciousness, the phenomena of the so-called deformation of legal consciousness, approaches to the definition of subjectivity and legal personality, structural and substantive aspects of legal capacity and legal capacity, parameters of the subjective side of the offense, problems of professional legal consciousness and a number of other applied issues.
38
Zadorozhnyi, Zenovii, Valentyna Orlova, and Sofiia Kafka. "Cost and managerial accounting of joint activities related to the use of fixed assets." Herald of Ternopil National Economic University, no. 2(88) (June 5, 2018): 84–93. http://dx.doi.org/10.35774/visnyk2018.02.084.
Анотація:
The research paper reveals the essence of the concepts of joint activity, joint operation, and joint venture. A set of key features for classification of joint activities is identified and their impact on accounting of joint activities is assessed. The article also reviews the essential elements of accounting of joint activities in the light of International Financial Reporting Standards (IFRS), and characterizes the process of recording accounting entries related to basic operations, which depend on organizational forms of joint activities (a joint venture or a joint operation, with or without a separate entity). The paper provides a detailed description of three options for accounting of joint activities classified as joint operations, namely: joint operations without a separate entity; joint operations with a separate entity but without legal personality; a legal unit. Besides, a number of particular characteristics of measuring financial results from selling and purchasing assets within joint operations are identified. It is pointed out that one of the ways of effective use of fixed assets is promoting the implementation of managerial ac- counting of joint activities and internal reporting procedures of the results achieved. It is suggested that domestic enterprises of oil and gas industry should expand the practice of joint activities in order to effectively use fixed assets for oil and gas extraction and transportation. Before conducting joint activities, it is recommended that oil and gas industry enterprises compile initial calculations of their profitability at the level of managerial accounting. In the study, the following general and specific scientific methods of obtaining knowledge on economic phenomena are used: generalization, grouping and comparison, analysis, synthesis, induction and deduction, etc.
39
Sarquis, Raquel Wille, and Ariovaldo dos Santos. "Accounting treatment of joint operations in Brazil in light of the current accounting standards." Revista Contabilidade & Finanças 32, no. 87 (December 2021): 390–97. http://dx.doi.org/10.1590/1808-057x202113110.
Анотація:
ABSTRACT The aim of this paper was to analyze the accounting treatment used by companies in Brazil that have investments in joint operations, in light of the Brazilian and international accounting standards. There are no doubts about the accounting treatment to be used in consolidated statements, but a divergence was identified between the international and Brazilian standards in relation to individual statements. IFRS 11 determines that investors recognize the values of a joint operation proportionally in consolidated and separate statements. However, the Brazilian standard includes a paragraph determining that only joint operations with no legal personality can be measured in individual statements proportionally. CPC 19 foresees different accounting treatments depending on the legal form of the joint operation, omitting the accounting treatment to be used in joint operations with a separate vehicle. The topic of joint operations is relevant, as the accounting treatment used in Brazil can mean our accounting practices do not comply with the international ones. Besides contributing to the literature on joint businesses, this essay indicates to regulatory bodies the need to modify the Brazilian standard so that it fits the international ones. As well as discussing the current standard, an analysis was carried out of companies in Brazil that have joint operations and the respective accounting treatments used to infer how well they fit the international standards. The results indicate that the accounting statements of the companies in Brazil with joint operations, composed through a separate vehicle, do not comply with the international standards. The main contribution of this essay is that it draws the attention of companies, auditors, and regulators to this non-compliance.
40
Grušić, Uglješa. "RESPONSIBILITY IN GROUPS OF COMPANIES AND THE FUTURE OF INTERNATIONAL HUMAN RIGHTS AND ENVIRONMENTAL LITIGATION." Cambridge Law Journal 74, no. 1 (March 2015): 30–34. http://dx.doi.org/10.1017/s0008197315000197.
Анотація:
EVER since the establishment of separate legal personality of companies and their limited liability in the nineteenth century, there have been attempts by voluntary and involuntary creditors of the insolvent or dissolved subsidiary to obtain remedies from the parent company. The orthodox view is that the parent company is neither responsible for the acts and omissions of the subsidiary nor liable for its debts. The Court of Appeal in David Thompson v The Renwick Group plc [2014] EWCA Civ 635 confirmed that the exceptions to this orthodoxy apply only in truly exceptional circumstances. As discussed below, the importance of this judgment extends into the realm of international human rights and environmental litigation and has the potential to set back the existing efforts within the European Union to ensure effective judicial remedy for corporate abuses.
41
Risvas, Michail. "INTERNATIONAL LAW AS THE BASIS FOR EXTENDING ARBITRATION AGREEMENTS CONCLUDED BY STATES OR STATE ENTITIES TO NON-SIGNATORIES." International and Comparative Law Quarterly 71, no. 1 (January 2022): 183–209. http://dx.doi.org/10.1017/s0020589321000476.
Анотація:
AbstractThis article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.
42
Khvan, R. M. "SUBJECT COMPOSITION OF THE MUNICIPAL LEGAL POLICY OF UKRAINE." Соціальний Калейдоскоп 1, no. 4 (August 20, 2020): 57–66. http://dx.doi.org/10.47567/bomivit.1-4.2020.05.
Анотація:
The article examines the essence of municipal legal policy as a system of strategic management of self-governing activities. It is determined that the activity of voluntary associations of local self-government bodies as subjects of state municipal policy is one of the manifestations and forms of organizational independence of local self-government bodies in the implementation of the paradigm of regional interest. This independence is guaranteed by the Constitution of Ukraine, the European Charter of Local Self- Government, the laws of Ukraine "On Local Self-Government in Ukraine" and "On Associations of Local Self-Government Bodies". The essence and peculiarities of local self- government subjects, their separate categories, regularities and tendencies of development are investigated. It is emphasized that territorial communities directly or indirectly, their authorities, non-governmental organizations exercise their legal personality both within the state and abroad. It is determined that territorial communities are endowed with: the right to form relevant bodies through elections, general meetings of citizens at the place of residence; the right to hold local referendums, local initiatives, public hearings, individual and collective appeals, public examinations and discussions, other forms of local democracy not prohibited by the constitution; the right to manage local budgets, movable and immovable property of communal property; the right to conclude international agreements of profile orientation, etc. It is noted that the transition to the formation of municipal legal policy requires a radical overhaul of the entire ideology of local government, management technologies, decision-making practices and resource allocation. Prospects for the functioning and improvement of the status of local self- government entities have been identified.
43
Phiri, Siphethile. "Companies and the Constitutional ‘Right to Life’: A Critical Analysis of the Companies Act 71 of 2008." Mediterranean Journal of Social Sciences 12, no. 6 (November 5, 2021): 107. http://dx.doi.org/10.36941/mjss-2021-0061.
Анотація:
Corporate law is founded on the fictitious principle of the separate legal personality of a company. This principle entails that a company is a juristic person, separate and distinct from any persons involved with the company. Because of their juristic nature, companies can acquire rights and incur liabilities in their own capacity. This corporate-law principle is rooted in section 8(4) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) which expressly provides the Bill of Rights applies to juristic persons subject to the stated considerations. The fact that companies as juristic persons, similar to natural persons, are entitled to the rights and freedoms contained in the Bill of Rights reveals that the Constitution recognises companies as ‘persons’. In this light, the article investigates how the Companies Act 71 of 2008 (hereafter the Companies Act) has embraced the constitutional right to life of companies as juristic persons as provided for in section 11 of the Constitution. To achieve this aim, the author applies the doctrinal legal research methodology – a legal research model which entails an examination of so-called ‘black-latter law’ with the Companies Act being the principal instrument. The results show that, although companies to do not enjoy the right to life in the same manner as natural persons, the literature examined reveals that the Companies Act recognises company’s constitutional right to ‘life’. In many instances, the right to continued existence of companies is promoted in various ways, including the introduction of the novel concept of business rescue by the Companies Act as a way of promoting the right to ‘life’ of companies.
Received: 20 August 2021 / Accepted: 7 October 2021 / Published: 5 November 2021
44
Oliinyk, Liliia. "ECONOMIC OFFENSE AS A GROUND FOR COMPENSATION FOR NON-PECUNIARY DAMAGE TO BUSINESS ENTITIES." Krakowskie Studia Małopolskie 33, no. 1 (March 31, 2022): 97–113. http://dx.doi.org/10.15804/ksm20220106.
Анотація:
In this research, which is proposed for the consideration of the scientific community, the author analyzes the essence of the concept of “economic offense”, studies, and summarizes scientific approaches to grounds for economic liability. A separate section of the research is the issue of understanding the essence of the economic offense as a ground for compensation for non-pecuniary damage to business entities. Based on the study and analysis of theoretical research on relevant issues, the author argues that universal characteristics of an economic offence are elements of its composition, and the sufficient ground for liability for non-pecuniary damage to business entities is the economic offense. At the same time, all other grounds for economic liability, which are distinguished by some scholars as independent grounds, incl. law ground, economic legal personality, and certain aspects (or conditions) of economic offense, are not separate grounds but comprise the economic offense’s composition. In addition, the author identifies and studies the elements of the economic offense’s composition as a ground for compensation for non-pecuniary damage to business entities. It is established that they are the object, the objective element, the subject, the subjective aspect. Thus, the research findings allow concluding that the economic offense may have a full or reduced composition, depending on the legal requirements for a particular element of the offense. Moreover, the most controversial issues concerning economic offenses, including the subjective aspect of the economic offense or the guilt of the business entity, are highlighted as ones which require further detailed scientific research.
45
Sonnekus, JC. "Regspraak: Troosgeld is deel van ’n reghebbende se afsonderlike boedelbates en nie deel van die gemeenskaplike boedel nie – verpligte deling troos nie." Tydskrif vir die Suid-Afrikaanse Reg 2022, no. 1 (2022): 159–70. http://dx.doi.org/10.47348/tsar/2022/i1a9.
Анотація:
Although a husband and wife married in community of property share by default, if not design, all their patrimonial assets in the common estate, the solatium or compensation received by an injured person as satisfaction for the unjustified injury to his or her personality rights is not supposed to form part of the common estate – simply because it happened to be received in the form of a patrimonial asset. It is meant to be private or separate and for the comfort of the injured only. The purpose of the compensation received as solatium is not to fill a vacuum left by the delict in the injured party’s assets, but to serve as the only mode of solace available to law to provide redress for the wrong. Other than the position where a patrimonial asset of the claimant had been damaged, eg by the negligent car accident caused by the respondent, and where the awarded damages neatly compensate the wronged party for the damage caused, thereby placing the total estate in the same position where it was before the intervening delict, the solatium paid to the injured for the non-patrimonial damages suffered by the delictual inroad on his/her personality rights is not supposed to redress a negative impact on the total estate of the wronged. The spouse of the injured party, even where they are married in community of property, would never have been able to lay claim to those personality traits or attributes of the other spouse. Personality rights, per definition, never form part of the assets of any patrimonial estate and should not be shared simply because the matrimonial property regime happens to be community of property. The legislature correctly stipulated in section 18(a) of the Matrimonial Property Act 88 of 1984: “Notwithstanding the fact that a spouse is married in community of property – (a) any amount recovered by him or her by way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her, does not fall into the joint estate but becomes his or her separate property” – emphasis added. This formulation echoes what has been the legal position for ages. Along those lines Hiemstra J in Potgieter v Potgieter correctly held that the amount awarded as contumelia to the injured husband for the harm done to his personality rights by the adultery of his wife and the third party, would not form part of the joint estate but would be his separate property. In so doing, the court precluded the adulteress from further sharing in the spoils of her doing. In the underlying decision by the majority of the supreme court of appeal, however, it was held that section 18(a) should be read to be limited: “The context of s 18 must be read in its entirety, and apparent therefrom is the plain language and words used. [This] … section highlights that delictual damages received by a spouse during the course of a marriage in community of property, which are nonpatrimonial in nature (s 18(a)); and damages for bodily injuries owing to the fault of one’s spouse in terms of s 18(b) must be excluded from the division of the joint estate on divorce” (par 9 – emphasis added). In this case a very significant amount was received by the lady for the non-patrimonial loss suffered by her more than four years before the marriage had been concluded. According to the reading-in exercise of the supreme court of appeal it was not received “during the course of the marriage” and not ringfenced. As a consequence, the court upheld the appeal of the erstwhile husband after a marriage of very short duration (barely two years). He consequently successfully laid claim to fifty per cent of the more than half a million paid as non-patrimonial compensation to his wife, more than four years before he married her in community of property and only after becoming aware of the significant amount of that compensation invested by her. This decision not only flies in the face of logic and the legal principles underlying South African common law; it is in conflict with the latest developments in comparable Continental legal systems sharing the same historical and societal foundations as the South African law. This judgment provides poor consolation and it leaves a deeply imbedded discomfort, because the result is vehemently contrary to the outcome in comparable legal systems for a similar scenario. Dividing the solatium under the pretext of a division of the joint estate diminishes the solace intended for the injured.
46
Zhang, Wenying. "Liability of the Parent Company of MNEs for the Debts of Its Subsidiaries." Journal of Education, Humanities and Social Sciences 1 (July 6, 2022): 13–19. http://dx.doi.org/10.54097/ehss.v1i.623.
Анотація:
In the context of today's global economic development environment, the most basic and widely adopted internal organizational structure of multinational companies, as the most important economic entities in the process of continuous expansion, is in the form of parent and subsidiary companies. Under this structure, the parent and subsidiary of a multinational corporation are legally separate legal persons, while in practice the subsidiary is often under the integrated control of the foreign parent company based on the global strategy. The contradiction between this form of law and physical control makes it highly likely that MNEs will pursue their global strategies while circumventing their legal responsibilities and infringing on the interests of subsidiaries, their creditors, and even the host country. Therefore, how to deny the independent legal personality of the subsidiary in a timely manner, so that the parent company of the multinational company can bear the debt liability of the subsidiary in a specific situation, deserves in-depth study. China has not made a limited principle exception to the issue of the liability of the parent and subsidiary of multinational companies under specific circumstances so in practice, some multinational companies maliciously take advantage of the gap in China's legal system to avoid liability. Therefore, through the in-depth discussion of the principle of responsibility and the comparative study of the time of various countries, China should formulate relevant legal systems in line with China's national conditions and the current world economic situation as soon as possible, so as to effectively regulate the behavior between the parent and subsidiary companies of multinational corporations and better protect the legitimate interests of multinational subsidiaries and their creditors in China.
47
Zipunnikova, Natalia, and Yuliya Nikolaevna Zipunnikova. "Fate of a scholar in the fate of a country (about the book “N. S. Nizhnik, S. Y. Dergileva State and Law in Theoretical-Legal Views of A. I. Elistratov: monography. – M.; Yurlitinform, 2017. – 376 p.” as about an invitation to ponder)." Genesis: исторические исследования, no. 3 (March 2020): 121–32. http://dx.doi.org/10.25136/2409-868x.2020.3.30535.
Анотація:
This article discusses a monographic study dedicated to the prominent Russian legal scholar A. I. Elistratov (1822-1955), whose life and works fell on the different historical periods, including a tragic crisis time. The authors of the monograph N. S. Nizhnik, S. Y. Dergileva characterize the intellectual biography of the scholar and his sociopolitical activity in the context of establishment of the police-legal theory within the European and national educational scientific tradition. Subsequent changes in the attitude towards legal scholar and his scientific writings that were popular in Russia prior to the October Revolution are demonstrated through the prism of transformation of state-legal, political-ideological, socioeconomic, educational-scientific customs of the national culture. An effective reconstruction of the scientific biography of A. I. Elistratov became possible due to careful attention to the heritage of national police science and Soviet science of administrative law as a whole, as well as anthropocentric scenario of the conducted research. From the standpoint of historicism and anthropological approach, the peer reviews turns attention to functionality in the culture of complex mechanisms that ensure succession of the traditions. The new monographs demonstrates the importance and research prospects of the separate storylines related to the formation of scholar’s personality and his realization of scientific-pedagogical and sociopolitical activity, for example on the foreign business trips and participation in seminars on law, work of law communities in pre-October Russia, dynamism of educational and scientific activity of the first Soviet decades.
48
Ford, Michael. "The Fissured Worker: Personal Service Companies and Employment Rights." Industrial Law Journal 49, no. 1 (December 25, 2019): 35–85. http://dx.doi.org/10.1093/indlaw/dwz022.
Анотація:
Abstract A personal service company (PSC) is a form of intermediary with separate legal personality used as a vehicle to provide the labour of the individual who controls the PSC. The rapid growth of PSCs in recent years, and their potential to disguise employment status for tax purposes, have been the subject of much policy and legislation. But their detrimental effect on the employment rights, both individual and collective, has almost been ignored. Evidence shows that PSCs continue to increase at a faster rate than employment, are colonising sectors of the labour market characterised by dependent labour and are often imposed to avoid the duties owed to workers or employees. In this article, I analyse how the existing law might provide a means of protecting the labour rights of individuals who are engaged via PSCs, examining the statutory provisions specific to some legal rights and more general doctrines based on shams, labels and piercing the corporate veil. Although the law provides some protection in some circumstances, PSCs retain their allure as a means of avoiding employment rights. I discuss potential legislative solutions to this problem, which highlights the interaction of tax and employment law and the difficulties caused by relying on the bilateral contract as the keystone of labour rights.
49
Lis, Artur. "ECONOMIC AND UNIQUE WOMEN. RURAL HOUSE WHEELS IN THE LAW." Roczniki Administracji i Prawa 2, no. XXII (June 30, 2022): 343–54. http://dx.doi.org/10.5604/01.3001.0016.0989.
Анотація:
The review article was devoted to the publication by Grzegorz Krawiec entitled „The act on rural housewives’ circles. Comment”. On the basis of the Act on Rural Housewives’ Circles of November 9, 2018, a separate organizational formula was created for KGW, which are voluntary, independent and self-governing social organizations of rural residents. Based on the previously applicable legal regulations, KGW could be established within agricultural circles as their independent units. They could also function in the form of associations. An important statutory solution is to grant KGW a legal personality, which allows them to run a business on their own account and benefit from financial support from public funds. KGW operates on the basis of the adopted statute, which specifies in particular: the name and seat of the circle, the objective and territorial scope of the circle’s activities, goals and tasks of the circle and the means of their implementation, the method of acquiring and losing membership, the assets of the circle and the method of administering these assets, the way of representing the circle. outside, the rights and obligations of members, the bodies of the circle and their powers, the conditions for adopting and valid resolutions of the bodies of the circle, the procedure for changing the statute and liquidating the circle.
50
Harris, Ron. "A new understanding of the history of limited liability: an invitation for theoretical reframing." Journal of Institutional Economics 16, no. 5 (June 8, 2020): 643–64. http://dx.doi.org/10.1017/s1744137420000181.
Анотація:
AbstractI investigate the historical development of limited liability – widely considered a cornerstone of the business corporation – and challenge the commonplace linear narratives about how limited liability evolved. I dismiss the claim that limited liability was invented with the very first joint-stock business corporations around 1600. I also reject the assertion that it became dominant with the limited liability acts of the mid-19th century. My argument is that it was only around 1800 that limited liability became a separate corporate attribute, distinct from legal personality, and that limited liability in the modern sense became a uniform attribute of all corporations only in the 20th century. Since corporations, stock markets and the corporate economy enjoyed a long and prosperous history well before limited liability in its modern sense became established and dominant, the economic theory of limited liability needs to be revisited. The paper opens a new set of conceptual, empirical and theoretical research questions, and points to new possibilities in terms of viable future liability regimes.