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1
Walczak, Krzysztof. "Status prawny działacza związkowego wykonującego pracę zarobkową na innej podstawie niż stosunek pracy". Studia z zakresu Prawa Pracy i Polityki Społecznej 29, n. 3 (20 ottobre 2022): 331–40. http://dx.doi.org/10.4467/25444654spp.22.027.16572.
Abstract (sommario):
The legal status of a trade union activist performing work on a basis other than an employment contract As a result of the amendment to the Act on Trade Unions, people performing work based on a civil law contracts may become trade union activists. However, this raises significant questions. First of all, it is doubtful to grant compensation to person who was dismissed without the consent of the trade union in the case where the termination of contract is objectively justified. Secondly, it is doubtful to grant these people the right to remuneration while they are released from the obligation to perform work.
2
Duraj, Tomasz. "Powers of Trade Union Activists Engaged in Self-Employment – Assessment of Polish Legislation". Acta Universitatis Lodziensis. Folia Iuridica 95 (30 marzo 2021): 83–100. http://dx.doi.org/10.18778/0208-6069.95.08.
Abstract (sommario):
The objective of the foregoing article is an analysis of the rights which the Polish legislature granted to self-employed trade union activists after the extension of coalition rights to these persons. In this regard, the trade union law extended to self-employed persons working as sole traders protection, which until 2019 was reserved exclusively for employees. Pursuant to the amendment of July 5, 2018, self-employed trade union activists were granted – based on international standards – the right to non-discrimination on the basis of performing a trade union function, the right to paid leaves from work, both permanent and ad hoc in order to carry out ongoing activities resulting from the exercise of a trade union function, and the protection of the sustainability of civil law contracts which form the legal basis for the services provided. the exercise of a trade union function, and the protection of the sustainability of civil law contracts which form the legal basis for the services provided. The author positively assesses the very tendency to extend employee rights to self-employed persons acting as union activists. However, serious doubts are raised by the scope of privileges guaranteed to non-employee trade union activists and the lack of any criteria differentiating this protection. Following the amendment of the trade union law, the legislator practically equates the scope of rights of self-employed trade union activists with the situation of trade union activists with employee status. This is not the right direction. This regulation does not take into account the specificity of self-employed persons, who most often do not have such strong legal relationship with the employing entity as employees. The legislature does not sufficiently notice the distinctness resulting from civil law contracts, which form the basis for the provision of work by the selfemployed the separateness resulting from civil law contracts, which constitute the basis for the performance of work by the self-employed. According to the author, the scope of rights guaranteed de lege lata to self-employed union activists constitutes an excessive and unjustified interference with the fundamental principle of freedom of contract on the basis of civil law employment relations (Art. 3531 of the Civil Code). From the point of view of international standards, it would be enough to ensure the right of these persons to non-discrimination on the basis of performing a trade union function; the right to unpaid temporary leaves from work in order to perform current activities resulting from the performed trade union function; the right to high compensation in the event of termination of a civil law contract with a self-employed trade union activist in connection with the performance of his functions in trade union bodies and full jurisdiction of labour courts in cases arising from the application of trade union law provisions. The disadvantage of the regulation at issue is also that Polish collective labour law does not in any way differentiate the scope of the rights and privileges guaranteed to self-employed trade union activists, ensuring the same level of protection for all. In that area, it appears that the legislature de lege ferenda should differentiate the scope of that protection by referring to the criterion of economic dependence on the hiring entity for which the services are provided.
3
Kravchyk, Marta, e Olha Tur. "DISTINGUISHING FEATURES OF CONCLUDING THE INHERITANCE CONTRACT UNDER THE LEGISLATION OF UKRAINE AND THE EUROPEAN UNION". Visnyk of the Lviv University. Series Law 72, n. 72 (20 giugno 2021): 80–86. http://dx.doi.org/10.30970/vla.2021.72.080.
Abstract (sommario):
The article deals with the legal nature of an inheritance contract, specifies the essential terms of an agreement as well as the legal status of the parties under the legislation of Ukraine and the European Union. The significance of the inheritance contract in the system of contracts of civil law of Ukraine is analyzed. It is proved that the legal relations arising in the case of entering into an inheritance agreement are also regulated by the general provisions of the Civil Code of Ukraine on transactions. Chapter 90 of the Civil Code of Ukraine stipulates that the inheritance contract should contain a binding legal model and a succession model. Having examined the legislation of Ukraine, it is concluded that the inheritance contract should be considered as a part of contract law. This contract regulates the transfer of property. Despite the fact that the inheritance agreement is included in the sixth book of the Civil Code of Ukraine, and despite the name of the agreement, the legal relationship of inheritance in this case does not arise. The similarity of the inheritance agreement with succession reveals in the commonality of the main legal basis for the right to inherit from the heirs and the acquirer’s right to ownership that occurs in the case the death of a natural person – the alienator. It is found out that according to the provisions of the Civil Code of Ukraine, the essence of the inheritance contract is that such an agreement defines the disposal of the alienator’s property during his lifetime, but with the acquirer’s acquisition of the right to property after the alienator’s death. The feature of an inheritance contract is that the property that is the subject matter of the inheritance agreement is not applicable to the norm ensuring the right to a mandatory share in the heritage. The comparative analysis of the institute of the inheritance agreement by the legislations of Ukraine and Germany is carried out. To be specific, the legal essence of the inheritance agreement is determined, the problems of concluding and terminating the inheritance contract are investigated, as well as the gaps concerning this legal structure in the domestic judicial system are discovered. It is also defined that the inheritance agreement was approved and received its further development in German law. According to the doctrine of German law, the legal nature of this type of agreement is that, on the one hand, it is an order in case of death, and, accordingly, is one of the grounds of inheritance, and, on the other hand, it is a contract, i.e. agreement of the parties on the heritage right in favour of a certain person, preventing it from unilateral change or cancellation. The inheritance contract in German law has the following features, including: 1) it is an order in case of death; 2) it is a bilateral transaction, i.e. agreement; 3) the subject matter of the contract is the right of inheritance; 4) the inheritance contract is one of the grounds for inheritance.
4
Tolstoy, Yuri K. "Improvement of civil legislation". Gosudarstvo i pravo, n. 2 (2022): 194. http://dx.doi.org/10.31857/s102694520018867-4.
Abstract (sommario):
The current problems of various spheres of civil legislation, both in legislation and in the application of norms, developed after the general codification of the civil legislation of the USSR and the Union Republics of 1961 - 1964, including after the well-known decisions of the governing bodies on economic reform, are considered. It is noted that there is a need to take a fresh look at the relationship between the plan and the contract; the need to eliminate the so-called initial gap in civil legislation; the need to resolve the issue of responsibility for guilt or regardless of guilt; the unresolved issue of the property responsibility of the bodies of inquiry, preliminary investigation, prosecutor's office and court; individual – specific – shortcomings of the Foundations of the civil legislation of the USSR and the civil codes of some Union republics are called. It is proposed to develop the exchange of experience in rule-making and norm-applying activities in the field of civil legislation between the Union republics, which will eliminate unjustified “inconsistency” in the civil codes of the Union republics caused by defects in legal technology. Other proposals are also being made.
5
Angelo, A. H. "Fundamentals of European Civil Law". Victoria University of Wellington Law Review 27, n. 2 (1 luglio 1997): 388. http://dx.doi.org/10.26686/vuwlr.v27i2.6118.
Abstract (sommario):
This article is a book review of Martin Vranken Fundamentals of European Civil Law (Federation Press, Sydney, 1997) 290 + xiv pages including Appendix, Bibliography and Index. Soft cover, NZ$45. Angelo states that the book is very tightly and clearly presented, providing a good introductory text for several purposes including the central topics of comparative law, a basic introduction to the law of contract, tort labour law and commercial company law in the French and German systems, as well as within the context of the European Union. Angelo concludes that the book provides a reasoned and correct view of the impact of the European Union on aspects of the private law of the member states.
6
Austin, Graeme W. "Essay: Family Law and Civil Union Partnerships - Status, Contract and Access to Symbols". Victoria University of Wellington Law Review 37, n. 2 (1 luglio 2006): 183. http://dx.doi.org/10.26686/vuwlr.v37i2.5565.
Abstract (sommario):
This essay locates New Zealand's civil union legislation within the dynamic between "status" and "contract" that animates modern family law. "Status" concerns who we are; "contract" concerns the transactions we can enter. Because family law is concerned with affective relationships, it cannot apprehend people only as the atomised individuals anticipated by the modernist emphasis on contractual relations. Family law acknowledges the relevance to legal issues of "messy" issues of personality. Among the most complex and powerful aspects of personality with which the law concerns itself is love. Love affects who we are and law affects what love can be. Law provides and constrains the symbolic repertoire that helps organise the way we think about our affective relationships. The enactment of civil union legislation was an enormously positive step. However, by continuing to deny homosexuals the ability to marry, the New Zealand state persists in denying homosexuals a key part of the symbolic repertoire that is relevant to the way people in love can conceptualise their relationships. The transactions the state permits us to enter, particularly transactions that are expressions of love, affect the construction of our identities, illustrating once again the deep links that exist between who we are and the contracts we can enter.
7
Lando, Ole. "Optional or Mandatory Europeanisation of Contract Law". European Review of Private Law 8, Issue 1 (1 marzo 2000): 59–69. http://dx.doi.org/10.54648/264249.
Abstract (sommario):
This article argues in favour of a Europeanisation of contract law. It is submitted that we the citizens of Europe cannot content ourselves with the existing Europeanisation which is both fragmentary and uncoordinated and which provides no general principles. The Commission on European Contract Law has been established to provide Principles of European Contract Law. The experience of the Commission is that a Europeanisation of contract law is feasible. The Union could either aim at a creeping uncodified harmonisation brought about by the scholars and the courts or a codification ic, a European Civil Code. The author argues for the latter solution.
8
Surblytė, Gintarė. "Diskriminavimo esant civiliniams teisiniams santykiams padariniai". Teisė 67 (1 gennaio 2008): 138–52. http://dx.doi.org/10.15388/teise.2008.0.353.
Abstract (sommario):
Straipsnyje analizuojami diskriminavimo esant civiliniams teisiniams santykiams padariniai. Aptariamos atitinkamos Europos Sąjungos direktyvų nuostatos, jas įgyvendinančios nacionalinės teisės normos, nagrinėjami padariniai, atsirandantys diskriminuojančiais pagrindais atsisakius sudaryti/vykdyti civilinę sutartį, analizuojamas žalos atlyginimo institutas. The article analyses the consequences of discrimination in the civil legal relations. For this purpose, it examines the particular provisions of the Directives of the European Union as well as the implementing national legal norms. Accordingly, the consequences of the discriminatory refusal to contract or to fulfil the civil contract and the possibilities to claim damages are discussed.
9
Collins, Hugh. "Why Europe Needs a Civil Code". European Review of Private Law 21, Issue 4 (1 agosto 2013): 907–22. http://dx.doi.org/10.54648/erpl2013052.
Abstract (sommario):
Abstract: Arguments in favour of the creation of a civil code for the European Union are usually framed in terms of the internal market agenda, which seeks to remove real or supposed obstructions to trade, such as the diversity of national laws. Although those arguments for a European civil code are found inadequate and to some extent misconceived, a different reason for the creation of a civil code consisting of principles rather than detailed rules is advanced, based on the idea that Europe needs to construct a transnational civil society that will provide the foundations for greater political solidarity between the peoples of Europe and thereby legitimate more effective transnational institutions of governance. Does the European Union need a civil code? Like a dark cloud, this question hovers over debates about the future of private law in Europe. Few advocate explicitly the adoption of a civil code in the immediate future, yet many have taken instrumental steps along a road that seems to lead only in that direction. Those steps - whether they be in the task of discovering common core of principles of private law among national legal systems1 or producing a systematic body of principles such as the Principles of European Contract Law2 and the Draft Common Frame of Reference of rules and principles for the law of obligations3 or augmenting the scope of directives to include more and more types of transactions - all have the same direction of travel towards a comprehensive European set of rules governing contracts and related legal obligations. Although these efforts are fascinating intellectual ventures and may prove useful for some purposes, it is important to ask whether the European Union really needs to go on this journey towards a civil code.
10
Seuffert, Nan. "Sexual Citizenship and the Civil Union Act 2004". Victoria University of Wellington Law Review 37, n. 2 (1 luglio 2006): 281. http://dx.doi.org/10.26686/vuwlr.v37i2.5571.
Abstract (sommario):
This article analyses the parliamentary debates on the Civil Union Act 2004, which provides for legal recognition of same sex relationships, for stories of national identity. A close reading of the parliamentary debates on the Act suggests that although the supporters and opponents of the legislation seemed to be worlds apart, many told similar stories about New Zealand as a nation, and citizens within that nation, emphasising similar values and aspirations. Both sides told stories of citizens, of New Zealanders, as tolerant and fair, as forwarding-looking progressives who value stable long-term, committed relationships, warm loving communities for children, and strong families and family relationships. Both sides generally saw marriage as a positive institution, a cornerstone of society and a building block for society and the nation. While some talked of existing alternatives to marriage, such as de facto relationships, and there was some recognition that not all marriages are good ones, with a few notable exceptions, there was little mention of critiques of marriage as an institution and little or no positive mention of relationships outside of the paradigm of long-term committed, monogamous relationships. Further, while there were arguments, reflecting a privatisation paradigm, that the Civil Union Act 2004 was not necessary since the rights and duties of same sex couples could be structured using the private law of contract and trusts (a claim that was debated), there was no suggestion that state recognition of marriage should be abolished, or that long-term heterosexual relationships should be structured through private law.
11
Pavillon, Charlotte. "Private Enforcement as a Deterrence Tool: A Blind Spot in the Omnibus-Directive". European Review of Private Law 27, Issue 6 (1 dicembre 2019): 1297–328. http://dx.doi.org/10.54648/erpl2019072.
Abstract (sommario):
The Directive on better enforcement and modernization of EU consumer protection rules or Omnibus-directive does not acknowledge the deterrence function of private enforcement of EU consumer law. The article demonstrates that the balancing of the principles of effectiveness, proportionality and dissuasiveness requires more attention when it comes to ‘civil remedies’. Indeed, the Court of Justice of the European Union (CJEU) has in recent years put a clear emphasis on the deterrence function of the nonbinding effect of unfair contract terms, a civil sanction imposed by civil courts. These courts, however, are struggling with the implications of this function. They are actively searching for direction by referring new preliminary questions to the CJEU. Empirical research conducted in the Netherlands shows that Dutch district courts largely recognize their role as enforcer of EU consumer law. It also reveals that these courts consider the proportionality and the dissuasiveness of the sanction to be at odds when the gap left after the removal of an unfair contract term is not filled with national law. European consumer law, sanctions, civil law, unfair contract terms, civil courts
12
Török, Éva. "A gazdasági, műszaki fejlődés hatása a szerződések jogára". Jelenkori Társadalmi és Gazdasági Folyamatok 7, n. 1-2 (1 gennaio 2012): 80–87. http://dx.doi.org/10.14232/jtgf.2012.1-2.80-87.
Abstract (sommario):
In this communication, the effects of the economical, moreover the technical growth on the contract law is presented comprehensively. The traditional framework of the civil law contracts has been broken by the development and phenomena of market economy in our country. Furthermore the legal milieu has to go by the changed demands of the economic operators. As results of the business-like management, the large investments as well as the cross-border transactions formed more and more novel, the so-called atypical contracts in the Hungarian law. New contracting methods are linked with the technological evolution. At first, the pre-prepared model contracts came into view by the development of the mass production, additionally the digital environment vivified the possibilities of electronically created contracts. The contract law legislation of the European Union had a significant effect on the discussed field also.
13
Andrushko, A. "Establishing the fact of labor relations in court". Uzhhorod National University Herald. Series: Law 3, n. 75 (11 aprile 2023): 84–87. http://dx.doi.org/10.24144/2307-3322.2022.75.3.14.
Abstract (sommario):
In the field of labor law, the establishment of the fact of labor relations in court is investigated. It is emphasized that the importance of establishing the fact of labor relations lies in the fact that, in its presence, grounds are created for the employee to exercise labor rights, in particular to wages, guarantee, compensation and other social benefits, including benefits related to temporary disability, unfortunate accident at work or occupational disease, etc. Attention is drawn to the fact that in establishing the fact of labor relations, it should be taken into account that between an individual and a business entity, relations regarding the performance of work can arise both on the basis of an employment contract and on the basis of a civil law contract, at the same time, this depends on the nature of work. The theoretical research is conducted taking into account the optimization of labor legislation, that is, finding the best option, finding the optimal model for establishing the fact of labor relations, taking into account the martial law and adapting labor legislation to the standards of the European Union. It is emphasized that in order to avoid disputes about establishing the fact of labor relations, the employer, having a choice to enter into a civil or labor contract, must clearly delimit the scope of application of these contracts and compare it with the work for which the employee is hired. The actions of employers regarding providing employment contracts with the content of a civil law contract, failure to formalize labor relations with an employee who performed work without concluding an employment contract, hinder the realization of the employee's right to work, guaranteed by the Constitution of Ukraine and the Labor Code of Ukraine, as well as the right to social protection in case of unemployment, in case of temporary loss of working capacity, in the event of an accident at work or as a result of an occupational disease, the right to rest, annual paid vacations, the right to healthy and safe working conditions, the right to join trade unions, etc.
14
Kruś, Maciej. "Umowa urbanistyczna jako przykład umowy administracyjnej na tle polskiego i europejskiego porządku prawnego". Studia Prawa Publicznego, n. 3(27) (15 settembre 2019): 117–38. http://dx.doi.org/10.14746/spp.2019.3.27.5.
Abstract (sommario):
The subject of the article is an attempt to show that concluding an urban contract is a form of public administration activity of an administrative nature, not a civil one. As a result of the contract, an administrative-legal relationship is established. Its characteristic feature is that in order for this relationship to arise it is necessary for the other party to agree. The other party is an investor who is supposed to carry out the project at his own expense. The basis for the conclusion of the contract is not the freedom of contracting, but administrative law specifying the competence of the administration to conclude a contract as well as determining the acceptable content of the contract. The urban contract is therefore an administrative contract. The article also presents the basic features of an administrative contract. In the study, the achievements of Polish and German doctrine were used. The administrative contract is not regulated under Polish law but relevant provisions are contained in the German Act on Administrative Proceedings. In addition, a public law contract has been described as an instrument of action in the implementation of European Union law. In this context, two cases were distinguished, i.e. the conclusion of a contract by national authorities and the conclusion of a contract by the Union institutions. In the latter case, it was necessary to interpret the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union. The characteristics of the administrative contract which make it a good means of establishing an administrative-legal relationship are also presented. Of particular importance is the opportunity of creating the content of the relationship by the entities involved. This enables the formation of individual provisions adapted to a specific case. At the same time, because the consent of both parties is needed to conclude a contract, such an administrative contract protects the interests of both parties to the legal relationship. Public administration’s ability to act in specific situations must be ensured and for that reason the administrative contract will probably develop further.
15
Daukšienė, A. "PENSIJŲ KAUPIMO SUTARTIS: TEORINIAI IR PRAKTINIAI ASPEKTAI". Teisė 90 (1 gennaio 2014): 72–100. http://dx.doi.org/10.15388/teise.2014.0.2877.
Abstract (sommario):
Šiame straipsnyje jo skaitytojas (teisininkas, mokslininkas ar pensijų kaupimu besidomintis asmuo) supažindinamas su pensijų kaupimo sutartimi – šių dienų kontekste viena iš socialiai reikšmingiausių civilinių sutarčių. Pagrindinis straipsnio tikslas yra kvalifikuoti pensijų kaupimo sutartį, atskleidžiant šiai sutarčiai būdingus kitų civilinių sutarčių požymius. Taip pat autorė straipsnyje sprendžia bendrosios kompetencijos ir administracinių teismų kompetencijos atskyrimo problemą teismams nagrinėjant ginčus pensijų kaupimo srityje bei atskleidžia Konstitucinio Teismo jurisprudencijos įtaką pažeistų pensijų kaupimo sistemos dalyvių teisių gynybai. Be to, šiame darbe pateikiama trumpa Europos Sąjungos valstybėse narėse, įskaitant ir Lietuvą, įvykdytų pensijų sistemos reformų raida, siekiant visapusiškai atskleisti kontekstą, kuriame paskutinius kelerius metus veikia pensijų kaupimo sutarties šalys. This article introduces reader (who might be lawyer, academic or any other person who is interested in pension accumulation) to the legal nature of a pension accumulation contract which is one of the most and socially important civil contracts nowadays. The main aim of the article is to qualify pension accumulation contract and to reveal the specific features of pension accumulation contract from perspective of the other civil contracts. Moreover, the author pays attention to the problem of separation of civil and administrative courts’ competence by hearing disputes in the area of pension accumulation. As well as the influence of Constitutional court jurisprudence to defence of the violated rights of pension system’s participants are analyzed. In addition, this work also provides a brief overview of the pension systems reforms which were made in the European Union Member States (including Lithuania), with intention to disclose fully the context in which pension accumulation contract parties were acting in the last few years.
16
Lando, Ole. "Have the PECL Been a Success or a Failure?" European Review of Private Law 17, Issue 3 (1 giugno 2009): 367–75. http://dx.doi.org/10.54648/erpl2009025.
Abstract (sommario):
The article treats the impact of the Principles of European Contract Law (PECL), which were published in 2000 and 2003. They have had a considerable influence on law reforms in various European Countries, and has prompted the Commission of the EC to sponsor the bringing about of a Common Frame of Reference which is being prepared by the Study Group of a European Civil Code and other groups, and which is intended to operate as soft law. However, the author’s ambition that the PECL would bring about a binding European Civil Code of Contract applicable in the European Union and replacing the national laws will probably not be realised for a long time to come.
17
Fornasari, Riccardo. "Crépuscule des idoles: De la fragmentation du sujet à la fragmentation du contrat". European Review of Private Law 27, Issue 4 (1 agosto 2019): 785–822. http://dx.doi.org/10.54648/erpl2019042.
Abstract (sommario):
The development of European Union law plays a fundamental role in the transformation of contract law in civil law systems. This article assesses these transformations of continental legal systems through the notion of juridical subject. It is argued that the evolution of a different conception and regulation of the juridical subject derives from a new conception of competition and of the market order, which involves a major transformation of the function of contract law and of the founding notions of this legal field. The transformations brought forth by a new conception of the market order and the development of the European Union are assessed on the basis of examples taken by French, German and Italian law. Just as the unity of the juridical subject and of the contract stemmed from a specific philosophical and economic approach, the same is true for the present fragmentation, which stems from a new understanding which challenges the foundations and the functions of private law.
18
Mendzhul, M. V., e N. O. Davydova. "The mechanism of civil law regulation of property relations of partners in de facto unions". Uzhhorod National University Herald. Series: Law, n. 65 (25 ottobre 2021): 124–27. http://dx.doi.org/10.24144/2307-3322.2021.65.22.
Abstract (sommario):
The article investigates the mechanism of legal regulation of property relations of partners in de facto unions. The national legislation of European states is analyzed, as well as the recommendations of the Commission on European Family Law, suggestions for improving national legislation are made.It is determined that there are no uniform approaches in the legal regulation of partners in de facto unions in European countries, in particular in six countries such relations are unregulated, in fourteen countries such relations are regulated by different branches of law, and in nine jurisdictions there is a special legal mechanism (Sweden, Hungary, Slovenia, Croatia, Catalonia, Portugal, Scotland, Ireland and Finland).The provisions of the Lithuanian Civil Code on the regulation of de facto marital relations, as well as the legislation of Croatia, Sweden, Norway and other countries are analyzed. It was found that in Scotland, civil partnerships were allowed for same-sex couples back in 2005, and for people of the opposite sex only from June 30, 2021.It is substantiated that in the context of Europeanization of private law, the position on the need to amend the Family Code of Ukraine and introduce the term «de facto union» recommended by the Commission on European Family Law in the Principles of European Family Law on property rights, maintenance and succession of couples in de facto unions.It is proved that in the process of Europeanization of private law the institution of de facto union should be regulated by the norms of the Family Code of Ukraine, which, taking into account the recommendations of the Commission on European Family Law should be improved as follows: contract on selling a dwelling in which partners live, as well as household items, is made with the consent of both partners; to guarantee partners the right to file a claim to the court for consent to dispose of the property without the consent of the other partner; to guarantee the principle of freedom of contract between partners in de facto unions; establish the right to compensation for a significant contribution to the property (or business) or profession of another partner; guarantee the right of the partner to inherit equally with the spouses, etc.
19
Velicu, Dan. "A Brief Assessment of the Main Commercial Contracts under the New Romanian Civil Code". International and Comparative Law Review 20, n. 2 (1 dicembre 2020): 274–89. http://dx.doi.org/10.2478/iclr-2020-0029.
Abstract (sommario):
Summary From 2011 Romania has a new Civil Code. Although the government’s initiative was to unify the private law according to the model of the Italian Civil Code of 1942 by repealing the Commercial Code of 1887, the new Civil Code only succeeded in putting together civil rules and commercial rules, the latter being relocated from the former Commercial Code. Obviously, an exhaustive analysis of the new Civil Code is impossible in the frame of a short article. That’s why the author of this study tries to evaluate the new Civil Code regulation by focusing on the main commercial contracts. Some general civil rules that are traditionally applied for centuries in most of the European continental legal systems (e.g. ownership concept, warranty for defects, the buyer’s duty to pay the price etc) will be premeditatedly neglected or just shortly approached. The commercial contracts are very important in the field of the international commercial relations – even between the borders of the European Union –, when in many cases the parties agree that the national law will govern the contract. The goal of the study is to offer a brief commentary on the new institutions together with a comparative presentation of the general regulation of the main commercial agreements.
20
Łaguna, Łukasz. "ANALYSIS OF THE PROCEDURAL STATUS OF A PERSON PROVIDING PAID WORK UNDER A CIVIL LAW CONTRACT IN EMPLOYMENT LAW CASES". Roczniki Administracji i Prawa 4, n. XXI (31 dicembre 2021): 247–63. http://dx.doi.org/10.5604/01.3001.0015.8314.
Abstract (sommario):
The amendment of the Trade Union Act by the Act of 5 July 2018 amending the Trade Union Act and certain other acts (Journal of Laws, item 1608), which entered into force on 1 January 2019, redefined the essence of collective labour law. Pursuant to the aforementioned amendment, the legislator introduced into the legal system the institution of a “ person who performs paid work”, which includes both an employee within the meaning of Article 2 of the Labour Code and a person providing work for remuneration on a basis other than employment relationship (so-called non-employee). The analysis of the introduced provisions leads to the conclusion that the legislator focused on providing non-employees with substantive legal rights, such as, among others, the right of union coalition. However, in my opinion, the legislator neglected analogous scrupulosity in the area of procedural rights of non-employees, which led to a situation in which non-employees are partially entitled to the same substantive rights as employees, but do not have analogous procedural rights. In my view, this constitutes a flagrant omission on the part of the legislator which, as a consequence, leads to legal uncertainty and a lack of effectiveness of the protection introduced for non-employees.
21
Hesselink, Martijn W. "European Contract Law: A Matter of Consumer Protection, Citizenship, or Justice?" European Review of Private Law 15, Issue 3 (1 giugno 2007): 323–48. http://dx.doi.org/10.54648/erpl2007021.
Abstract (sommario):
Abstract: In its ‘First Annual Progress Report on European Contract Law and the Acquis Review’, the European Commission recently announced that, within the Common Frame of Reference process, it will prioritize the revision of the consumer acquis. This ‘reprioritization’ has a number of practical consequences. However, the more fundamental question is what the effect of a renewed focus on consumer protection will be on the character of European contract law, and on the way in which the Union addresses and views the people living in Europe. This question will become all the more important if the Commission is going to attempt, as it seems to envisage, some comprehensive and exclusive European legislation with regard to contracts with consumers (all or certain important ones, notably sales). Obvious alternatives to the consumer protection approach to the Europeanization of contract law include the perspectives of European citizenship and of justice. Does it matter whether European contract law is developed as a matter of consumer protection, citizenship or justice? Or, to put it differently, does it make a difference for a contracting party whether she is treated as a consumer, a citizen or a person? This paper argues that it does. It presents the European policies with regard to consumer protection, European citizenship and the Area of justice, and discusses the kind of contract law that each of these approaches leads to and the kind of society they contribute towards. Both the citizenship and, in particular, the consumer protection approach are rejected as an exclusive approach to contract law because they are reductive. They fail to take into account important aspects of human life which would be included in an approach to contract law from the perspective of justice. The conclusion is that European contract law should become a matter of justice. As a consequence, the European Union will need to provide a legal basis for treating contract law as a matter of civil justice. Moreover, the Union will have to articulate a common European conception of justice in contract law. Résumé: Dans son premier rapport annuel sur l’état d’avancement du droit européen des contrats et de la révision de l’acquis, la Commission européenne a annoncé qu’elle donnerait, dans le processus d’un cadre commun de références, la priorité à la révision de l’acquis en matière de protection des consommateurs. Cette priorité renouvelée a un certain nombre de conséquences pratiques. La question fondamentale est cependant celle de l’effet d’une nouvelle accentuation sur la protection des consommateurs, sur les caractéristiques du droit européen des contracts et sur la manière dont l’Union perçoit les personnes vivant en Europe et s’adresse à eux. Cette question deviendra de plus en plus importante si la Commission s’apprête à mettre en oeuvre, comme cela semble envisageable, une législation européenne complète et exclusive relative aux contrats de consommateurs (ou certains contrats importants, comme par exemple les contrats de vente). Des alternatives évidentes à la protection des consommateurs comme manière d’aborder la question de l’européanisation du droit des contrat incorporent des perspectives de citoyenneté européenne et de justice. Est-ce important que le droit européen des contrats soit developpé comme une question de protection des consommateurs, ou co
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Topildiev, Vokhidjon. "Civil law problems of constituent contracts". Общество и инновации 2, n. 3 (15 giugno 2021): 80–90. http://dx.doi.org/10.47689/2181-1415-vol2-iss3-pp80-90.
Abstract (sommario):
In this article, the author provides a scientific assessment of the history of the conclusion of constituent agreements on the creation of legal entities, based on the Roman, former Union and civil law of the Republic of Uzbekistan, and also theoretically and practically analyzed the essence of constituent agreements and their types on the basis of current legislation. He also proposed to include in the Civil Code of the Republic of Uzbekistan a separate special chapter regulating constituent agreements.
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Vagina, І. "Foreign experience of legal regulation of the conclusion of contracts between mother, father and children". Uzhhorod National University Herald. Series: Law 1, n. 75 (22 marzo 2023): 161–66. http://dx.doi.org/10.24144/2307-3322.2022.75.1.26.
Abstract (sommario):
In the scientific article, the author conducted a scientific study of the foreign experience of legal regulation of contractual relations between mother, father, and child, including under the legislation of the European Union states. Based on the conducted research, the author concluded that the legal regulation of the conclusion of contracts between the mother, father, and child under the legislation of the European Union states is mainly carried out through the determination of the possibility of concluding contracts, without clarifying the provisions on their form and essential conditions. In particular, the possibility of concluding a "statement on the exercise of parental rights" ("agreement of parents on establishing the procedure for the exercise of parental rights and determining contributions for the maintenance and upbringing of a child") under French civil law is defined in this way; "agreements on the method of providing maintenance" and "applications for acceptance of parental care" under German civil law; relevant agreements under the legislation of Latvia (agreement of parents: on determining the child's surname, cancellation of adoption, on establishing joint or separate parental care of the child, on establishing the terms of communication with the child of the parent who lives separately), Estonia (agreement on the fulfillment of the obligation parents regarding child maintenance), Czech Republic (agreements: on establishing paternity, on exercising mutual parental rights and responsibilities, on establishing the terms of communication with the child of the parent who lives separately from the child, on managing the child's property, on exercising parental rights and responsibilities after divorce, about the payment of alimony), Poland ("declaration of the spouses about the child's surname", "agreement on how to exercise parental responsibility and maintain contact with the child, in accordance with the best interests of the child"), "agreement on the rules for determining contact between parents and children"), Bulgaria (agreement on the place of residence of children, parentage, personal relationships, etc child support). The legislation of these countries (except Bulgaria) limits the possibility of regulating relations between parents and children by a marriage contract; Czech and Polish legislation also allows the conclusion of alimony contracts regarding the maintenance of children of their incapacitated parents. Hungarian civil and Moldovan family legislation more broadly define the essential conditions and form of contracts between parents and children, primarily regarding the contract on providing maintenance to a participant in family relations and the contract on communication with the child. In the author's opinion, the experience of these states should be borrowed, and the same detailed regulation provided for in the Family Code of Ukraine.
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Harhat, I. M. "The Concept Of Unfair Contract Terms". Actual problems of improving of current legislation of Ukraine, n. 55 (17 gennaio 2021): 3–13. http://dx.doi.org/10.15330/apiclu.55.3-13.
Abstract (sommario):
The article explores the concept of «unfair terms contract terms» through the analysis of its origin and fixing in the legislation and legal literature of the European Union, Ukraine and the United States. Comparisons of interpretations of this concept according to Directive 93/13/EEC, Model Rules of European Private Law, The Uniform Commercial Code, as well as the Law of Ukraine «On Consumer Protection».
In the article author notes that the definition of unfair terms of the contract is a complex symbiosis of material and procedural, a combination of justice and dishonesty, comparison of signs of «imbalance of interests» and «significantly disadvantaged» and therefore at this stage of civil law is not can be defined unambiguously.
It is investigated that the modern civil legislation of Ukraine is still in solidarity with the legislation of most EU member states in terms of introducing this concept primarily to protect consumer rights.
Regarding the definition of «unfair terms», author notes that Ukrainian legislation follows common legal trends and recognizes unfair terms when they violate the principle of good faith and fairness, as well as when they lead to a significant imbalance of contractual rights and obligations of the parties and harm the consumer.
As a result, it was found that in general the concept of «unfair terms» is evaluative and can not by its very nature reflect the motives laid down in the contract by one or another party. The Court of EU and the courts of the EU member states do not give general conclusions on a case-by-case basis, using the definitions contained in the text of Directive 93/13/EEC, which set out the conditions that may be considered unfair.
Author proposes to use the sign «significantly unfavorable position» proposed by A.A.Leff to define the concept of «unfair terms of the contract», as it will improve the protection of the interests of the economically weaker party in the contract.
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Savanets, Liudmyla, Anzhelika Baran, Tetiana Podkovenko, Hanna Poperechna e Olena Dyka. "Breach of obligations under contracts for the sale of goods and supply of digital content in European Union and Ukrainian law". Cuestiones Políticas 41, n. 79 (20 ottobre 2023): 156–71. http://dx.doi.org/10.46398/cuestpol.4179.11.
Abstract (sommario):
The content of the research lies in an analysis of the legal prescriptions of the legislation of the European Union and Ukraine, which determine the liability of the parties for breach or improper performance of obligations under contracts for the sale and purchase of goods and supply of digital content. With the help of general and special philosophical methods, the possibility and legal consequences of applying the liability provisions of the relevant articles of the Civil Code of Ukraine, to the contractual relations of purchase and sale of goods and the supply of digital content (violation of the contract of sale by the seller and the lessee, copyright infringement, etc. are discussed. ) It is concluded that in order to harmonize the Ukrainian legislation with the legislation of the European Union, the provisions of individual drafts and Directives of the European Parliament and the Council, which regulate the specific sphere of legal relations, were analyzed. Special attention was paid to the implementation of the draft Law on Digital Content and Services and its compliance with the basic principles of private law in this area, established on the basis of the values of the European Union.
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Lenaerts, Annekatrien. "The General Principle of the Prohibition of Abuse of Rights: A Critical Position on Its Role in a Codified European Contract Law". European Review of Private Law 18, Issue 6 (1 dicembre 2010): 1121–54. http://dx.doi.org/10.54648/erpl2010082.
Abstract (sommario):
Abstract: The principle of prohibition of abuse of rights aims to correct the application of a rule of law on the basis of standards such as good faith, fairness, and justice if, despite formal observance of the conditions of the rule, the objective of that rule has not been achieved. This principle amounts to a general principle of Union law. First, a common concept of abuse of rights exists in the legal traditions of the Member States. Second, the European Court of Justice (ECJ) has gradually built a Union concept of abuse of rights (Emsland-Stärke, Halifax, Kofoed). However, the general principle of prohibition of abuse of rights is not expressly incorporated into the codification projects on European contract law. This principle constitutes a specific application of the general duty of good faith and fair dealing in its limitative function. In principle, this approach is valid, more specifically from the perspective of the Civil Law traditions where the prohibition of abuse of rights is likewise considered as one of the applications of the more general and autonomous limitative function of good faith (e.g., Germany and the Netherlands). However, an express incorporation of the principle of prohibition of abuse of rights would be advisable from the perspective of the Civil Law traditions where the limitative function of good faith is not autonomous but exclusively linked to the general principle prohibiting the abuse of rights (e.g., Belgium and France). Such an incorporation would be in line with the recognition of a general principle of Union law prohibiting the abuse of rights.
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Owczaruk, Sławomir. "CONCLUSION OF A CIVIL LAW CONTRACT AS A PREMISE FOR THE MUNICIPALITY TO ACT AS A TAXABLE PERSON OF TAX ON GOODS AND SERVICES (VAT)". Roczniki Administracji i Prawa 1, n. XX (30 marzo 2020): 151–66. http://dx.doi.org/10.5604/01.3001.0014.1432.
Abstract (sommario):
The research goal undertaken in this article is to answer two questions. First, can a municipality’s legal tax status in the field of tax on goods and services (VAT) in each transaction always be determined precisely? Second, is the conclusion of a civil law contract by a Polish municipality a sine qua non condition for it to obtain VAT taxable status? Theses presented in the publication, and arguments clearly indicate that with the VAT system in force in the European Union, including Poland, it is not always possible to precisely define the status of a municipality as a taxpayer in a given transaction; and the conclusion of a civil law contract by a municipality is not always sufficient for it to obtain the status of a taxpayer in a given transaction. The research material used includes domestic and foreign substantive law, doctrine and practice, in which current case law of tax authorities, administrative courts and the CJEU plays a special role.
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Poturai, Kateryna. "The features of the contractual form of protection of subjective intellectual property rights for a cinematographic work under the laws of Ukraine and the countries of the European Union". Law Review of Kyiv University of Law, n. 4 (30 dicembre 2020): 323–28. http://dx.doi.org/10.36695/2219-5521.4.2020.57.
Abstract (sommario):
The article reveals the features of the contractual form of subjective intellectual property rights to a cinematographic work underthe laws of Ukraine and the European Union as the main form of protection of cinematographic works.The author emphasizes that in modern development of copyright relations, civil law has abandoned the legislative consolidationof the concept of copyright agreement, yet only lists and discloses the sense of its types.Thus, at the legislative and theoretical level, the problem of classifying a copyright agreement on the creation of a cinematogra -phic work as an agreement on the alienation of exclusive rights or a license agreement still remains unresolved. At the present stage,the legal regulation of the creation and use of films is further complicated by the fact that many film studios instead of copyright agreementsenter into refit contracts on the creation of films.The author draws attention to the fact that the French legal doctrine does not see any difference between the subject of the contractand the content of the obligation and uses such concepts as synonyms. The French legislator does not give a general concept, whichwould reveal the main features of the copyright agreement. However, the provisions of the French Intellectual Property Code directlyindicate the possibility of assignment of the author’s property rights (succession in a certain part of copyright) on the basis of the cont -ract. In the French literature and in the practice of courts it is unanimously recognized that from the point of view of general civil lawthe assignment of exclusive property copyrights is in principle a civil contract of sale of property, in turn a license is a civil contract ofproperty lease.The author also emphasizes that there is a necessity to regulate the conclusion of copyright agreements with all subjects of a cinematographicwork, which may have intellectual property rights in connection with the creation of such a work.
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Williams, Colin C., e Aysegul Kayaoglu. "Evaluating the prevalence of employees without written terms of employment in the European Union". Employee Relations 39, n. 4 (5 giugno 2017): 487–502. http://dx.doi.org/10.1108/er-10-2016-0189.
Abstract (sommario):
Purpose Until now, there has been scant evidence on the proportion and characteristics of employees working without a written contract or terms of employment. To begin to fill this gap, the purpose of this paper is to evaluate the prevalence and distribution of employees without written contracts or terms of employment in the European Union (EU), examining whether they are unevenly distributed across countries and EU regions, and whether it is vulnerable population groups who are more likely to be without such written contracts. Design/methodology/approach A 2013 Eurobarometer survey comprising 11,025 face-to-face interviews with employees in the 28 member states of the EU (EU-28) is reported. Findings The finding is that it is less socio-demographic and socio-economic characteristics, and more firm size, institutional environment and spatial factors that are important in explaining the prevalence of employment without a written contract. Thus, governments should address not individuals but rather the formal institutional failings and asymmetry between civic and state morality, in order to reduce the level of employment without a written contract, and focus their attention on smaller firms, larger towns and Southern European countries, especially Cyprus, Malta and Portugal. Research limitations/implications Future research needs to evaluate whether and how the conditions of employment (e.g. wage rates, health and safety conditions, holiday entitlements) of employees without written contracts or terms of employment differ to their equivalents who have written contracts or terms of employment. This will reveal the implications of workers not being issued with written contracts or terms of employment. Originality/value This is one of the first extensive evaluations of the prevalence and distribution of employees without written contracts or terms of employment.
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Dąbrowska, Krystyna Anna. "Individual control of a standard contract (Article 385(1) of the Civil Code) in the context valorization clauses in loans indexed to a foreign currency". Ars Iuridica 23, n. 1 (19 maggio 2023): 45–63. http://dx.doi.org/10.17951/szn.2023.23.1.45-63.
Abstract (sommario):
The article is a synthetic presentation of the dominant positions in the doctrine and judical practice regarding individual control of the contract template in the context of abusiveness of valorization clauses in loans indexed to a foreign currency. The most important statements of the Supreme Court and the Court of Justice of the European Union were indicated. The article focuses on the issues of the premises for individual control of the standard contract and the sanction of the consumer not being bound by an illegal contractual provision specified in art. 385(1) of the Civil Code Attention was drawn to interpretation difficulties caused by discrepancies between the wording of Council Directive 93/13/EEC and the wording of Art. 385(1) implementing the Directive.
31
Heutger, Viola. "Konturen des Kaufrechtskonzeptes der Study Group on a European Civil Code – Ein Werkstattbericht". European Review of Private Law 11, Issue 2 (1 aprile 2003): 155–73. http://dx.doi.org/10.54648/erpl2003012.
Abstract (sommario):
Abstract: Within the framework of the Study Group on a European Civil Code, a Dutch team based in Utrecht is preparing a draft on a European Sales Law. These efforts, being of importance for arriving at a possible future European Sales Law, are based on the acquis communautaire, the Principles of European Contract Law (PECL), the Vienna Sales Convention (CISG), and national legislation. The Utrecht draft covers all kinds of cross-border sales transactions in goods within the European Union. The final result will be published as Principles of European Sales Law. In order to abide by the standards of consumer protection set by various Directives, the provisions dealing with consumer sales are mandatory.
32
Fornaris, Ignacio. "Exploring the Evolution of Contractual Concepts within Regulation No 1215/2012 Through CJEU Judgments: Civil and Commercial Matters, Contracts, Tenancies of Immovable Property, and Provision of Services Under Examination". Nordic Journal of European Law 7, n. 1 (5 aprile 2024): 81–93. http://dx.doi.org/10.36969/njel.v7i1.25761.
Abstract (sommario):
Starting with the ruling of the Court of Justice of the European Union in the Obala case, this article explores: how the Court has redefined the concepts of ‘contract matters’ and ‘tort, delict, or quasi-delict matters’; actions related to ‘tenancy agreements for immovable property’ versus ‘rights in rem’; and the evolving interpretation of ‘services’ within the Brussels I Recast Regulation on jurisdiction, recognition and enforcement of judgments in civil and commercial matters. It also illustrates the discrepancies in the analysis of the term ‘civil and commercial matters’. The Obala ruling has led to changes in how these concepts are understood and studied in certain contexts, thereby reshaping their interpretative contours. As a result, this article conducts a retrospective analysis to grasp these changes and their implications.
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Mądrzycki, Błażej. "Open Coalition Law, Necessity or Threat?" Acta Universitatis Lodziensis. Folia Iuridica 95 (30 marzo 2021): 29–38. http://dx.doi.org/10.18778/0208-6069.95.03.
Abstract (sommario):
From January 1, 2019. Amendments to the Act of July 5, 2018 amending the provisions on trade unions and some other acts apply (almost in full). Amendments to the Polish act are a consequence of the Committee for the Freedom of Association, Labor Law Organizations and the judgment of the Polish Constitutional Tribunal. The main and expected effect of the amendment is the extension of coalition freedom in trade unions. This issue is important not only for the consistency of the legal system with international law, but also for social reasons. Concluding civil law contracts in the place of employee forms of employment is a common practice in Polish conditions. The main problem is that the civil law contract has a purpose other than the employment contract. Contracts of mandate and provision of services are the basis for the implementation of actual and legal activities. Besides, the legislator does not have any real actions aimed at eliminating the defective practice. The text is an attempt to synthetically summarize the motives of the amendment, as well as its effects and tests.
34
Parasiuk, Mykhailo, e Vasyl Parasiuk. "Features of conclusion of banking agreements in the internet network". Visnik Nacional’nogo universitetu «Lvivska politehnika». Seria: Uridicni nauki 10, n. 37 (22 marzo 2023): 245–52. http://dx.doi.org/10.23939/law2023.37.245.
Abstract (sommario):
In the context of current national legislation and regulations of the European Union, the article examines the theoretical and practical principles that determine the peculiarities of concluding banking contracts on the Internet using modern web interfaces and similar mechanisms (primarily, click-wrap and browse-wrap contracts) in the light recognition of reality. The methodological basis made up of general and private methods of scientific knowledge. The general scientific method of dialectical cognition, formal-dogmatic, comparative-legal method, linguistic methods, methods of deduction, induction, analysis and synthesis were used in the research process. The subject of the study is the norms of civil law on the contract, the norms of banking law on the conditions of certain types of banking contracts, the procedure for their conclusion and execution. It noted that the actions of the right holder of the program, including the bank, with the aim of further concluding an electronic contract on certain terms with unspecified counterparties, should be qualified as a public offer. Acceptance of this offer must create rights and obligations for the person who is the right holder of this program, regardless of his awareness of the fact of concluding such an agreement. The need for special legal regulation of the procedure for concluding banking contracts on the Internet substantiated. The procedure for concluding these contracts can found in the instructions of the National Bank of Ukraine, which defines the requirements for the banking institution regarding the additional identification of clients in the procedure for concluding banking contracts in the form of an Internet bank. The use of a smart contract requires a legal framework that would define the legal nature, concept and legal mechanism of a smart contract. An offer for the conclusion of a contract received in the personal account; the client accepts it using the actions provided in the software, which can be equated to a qualified electronic signature.
35
Parasiuk, Mykhailo, e Vasyl Parasiuk. "Features of conclusion of banking agreements in the internet network". Visnik Nacional’nogo universitetu «Lvivska politehnika». Seria: Uridicni nauki 10, n. 39 (22 agosto 2023): 142–49. http://dx.doi.org/10.23939/law2023.39.142.
Abstract (sommario):
Abstract. In the context of current national legislation and regulations of the European Union, the article examines the theoretical and practical principles that determine the peculiarities of concluding banking contracts on the Internet using modern web interfaces and similar mechanisms (primarily, click-wrap and browse-wrap contracts) in the light recognition of reality. The methodological basis made up of general and private methods of scientific knowledge. The general scientific method of dialectical cognition, formal-dogmatic, comparative-legal method, linguistic methods, methods of deduction, induction, analysis and synthesis were used in the research process. The subject of the study is the norms of civil law on the contract, the norms of banking law on the conditions of certain types of banking contracts, the procedure for their conclusion and execution. It noted that the actions of the right holder of the program, including the bank, with the aim of further concluding an electronic contract on certain terms with unspecified counterparties, should be qualified as a public offer. Acceptance of this offer must create rights and obligations for the person who is the right holder of this program, regardless of his awareness of the fact of concluding such an agreement. The need for special legal regulation of the procedure for concluding banking contracts on the Internet substantiated. The procedure for concluding these contracts can found in the instructions of the National Bank of Ukraine, which defines the requirements for the banking institution regarding the additional identification of clients in the procedure for concluding banking contracts in the form of an Internet bank. The use of a smart contract requires a legal framework that would define the legal nature, concept and legal mechanism of a smart contract. An offer for the conclusion of a contract received in the personal account; the client accepts it using the actions provided in the software, which can be equated to a qualified electronic signature.
36
Shi, Yuran. "Labour Protection And Civil Pilots In China: Training Cost In The Legal Swamp". Air and Space Law 47, Issue 4/5 (1 agosto 2022): 467–90. http://dx.doi.org/10.54648/aila2022027.
Abstract (sommario):
In China, termination of pilot employment has raised many arguments revolving around the training repayment. When pilots resign from their jobs or are fired, airlines generally claim compensation for the training cost. Questions arising in lawsuits can generally be divided into several categories: repayment window, repayment amount, statutory exemptions, and unfair discharge. The incoherent interpretation of the Chinese Labour Contract Law and the Pilot Movement Directive has led to controversies in civil proceedings. Furthermore, training repayment by pilots contributes to regulatory concerns about aviation safety, fair competition, the right to quit, and contractual unconscionability. This article addresses to what extent current Chinese law recognizes training repayment by civil pilots. Through the case study of Chinese judicial decisions and the comparative study of practices in the United States and the European Union, this article concludes with discussions on a viable way forward. China, labour protection, civil pilots, training cost, repayment obligation
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Kim, Jin-Kyu. "A Legal Review of ‘Best Efforts’ Clauses: Focusing on COVID-19 Vaccine Purchase Contracts". Korea Association for International Commerce and Information 24, n. 3 (30 settembre 2022): 175–94. http://dx.doi.org/10.15798/kaici.2022.24.3.175.
Abstract (sommario):
Since the World Health Organization (WHO) on March 11, 2020, declared the novel coronavirus (COVID-19) outbreak a global pandemic, many countries around the world have experienced contractual inequality in their dealings with global vaccine developers, such as delayed deliveries, limitations of liability for claims, disclaimers of warranties, and excessive confidentiality when negotiating purchase contracts. In 2021, the EU Commission filed a lawsuit in Brussels against AstraZeneca for not keeping to its purchase agreement for the supply of COVID-19 vaccines.
This study reviews the best-efforts clauses in the vaccine contracts signed by the EU and AstraZeneca focusing on the legal effects and duties of such clauses. The concept of the best-efforts clause is analyzed from a legal perspective, including its function and theoretical background in comparative law.
This study methodically reviews the best-efforts clause within the COVID-19 vaccine advance purchase contract between the EU and AstraZeneca in September 2020, and analyzes the European Union’s civil suit against AstraZeneca, filed in Belgium, for the delay in delivery of vaccines to the European Union. Consequently, this paper intends to present practical implications for the legal effects and duties of best-efforts clauses in the vaccine purchase agreements in the European Union v. AstraZeneca case.
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Busch, Danny, e Laura MacGregor. "Unauthorized Agency". European Review of Private Law 17, Issue 6 (1 dicembre 2009): 967–74. http://dx.doi.org/10.54648/erpl2009061.
Abstract (sommario):
This paper seeks to provide an overview of the project which led to publication of the book The Unauthorised Agent: Perspectives from European and Comparative Law, published by Cambridge University Press in 2009. Broadly speaking, the project concerned the problems caused by agents who act in an unauthorized manner and the legal concepts used to tackle those problems. These issues are analysed in the context of different national legal systems within the European Union and beyond. Drawing on the national chapters, the authors provide a detailed comparative analysis. Within this context, they assess whether a common law/civil law divide exists, and also analyse the contribution made by mixed legal systems. Finally, the book assesses the approach of international instruments such as the Principles of European Contract Law (PECL) and the Unidroit Principles of International Commercial Contracts.
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Lukasevych-Krutnyk, Iryna. "The concept and methods of harmonisation of the private law legislation of ukraine in the field of provision of transport services with the legislation of the European Union". Journal of the National Academy of Legal Sciences of Ukraine 27, n. 2 (28 giugno 2020): 91–106. http://dx.doi.org/10.37635/jnalsu.27(2).2020.91-106.
Abstract (sommario):
The article is devoted to the harmonisation of private law legislation of Ukraine in the field of transport services with the legislation of the European Union. The purpose of the study is to formulate the concept and determine the main ways to harmonise the private law of Ukraine in the field of transport services with the legislation of the European Union. The main method of scientific work is the method of legal analysis, the use of which made it possible to identify possible ways to harmonise national legislation in this area to European standards. Based on the analysis of the norms of national legislation and the legislation of the European Union, the terms “harmonisation”, “adaptation” and “approximation” were distinguished. It was proposed to understand the harmonisation of private legislation in the field of transport services with the legislation of the European Union as the process of adjusting Ukrainian legislation on the basis of EU legislation, in particular directives and regulations, in order to bring national legislation in line with their provisions. According to the results of the study, the harmonisation of private law of Ukraine in the field of transport services with EU law occurs in three ways, namely: 1) Ukraine's accession to international regulations in force in the EU, or the signing of bilateral agreements on cooperation in in the field of providing transport services with EU countries; 2) development and adoption of regulatory legal acts of Ukraine in the field of transport services, which take into account the provisions of EU law; 3) implementation into national legislation of the provisions of EU regulations and directives by making changes and additions to the current regulations of Ukraine. The practical significance of the research results is that the theoretical provisions and conclusions can become the basis for further research on the legal regulation of contractual relations for the provision of transport services in the context of European integration processes. The materials of the article can be used in the educational process for the preparation of educational and methodological support and teaching of relevant topics in terms of training courses in civil, contract and contract law, as well as special civil disciplines
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Doris, Martin J. "The Continued Resonance and Challenge of the “Ius Commune” in Modern European Contract Law". International Journal of Legal Information 34, n. 2 (2006): 391–418. http://dx.doi.org/10.1017/s0731126500001530.
Abstract (sommario):
The need for a more consistent and coherent European contract law is a current priority of the EC institutions. Despite decades of pointillistic legal harmonization, cross border transactions within the Internal market of the European Union continue to take place in the shadow of divergent procedural and substantive law rules, differing legal cultures and significant linguistic diversities. Whilst national contract law systems function more or less efficiently internally, it is their partial non-compatibility with other Member States’ private laws that provokes isolated distortions on the market. As a consequence, the European Commission has presented its ‘Common Frame of Reference’ research strategy aimed at fostering common contract law principles, model rules and uniform legal terminology, which, it is believed, will better facilitate commercial actors. The European Parliament has moved a step further by lending institutional credibility to the case for a European civil code. However, this clamour for codification of private laws – an idea premised on two formalisms, legal and economic – has in many respects overlooked the mechanics of modern commercial contracting in particular, the importance of contract drafting and the complex negotiations that lead to deals both domestically and cross border. This paper therefore provides an alternative assessment of the development of a Europeanius commune,or ‘common law’ of contract, and considers the urgency of improved means of legal information exchange in order to better facilitate the ongoing harmonization effort.
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Gonçalves, Anabela Susana de Sousa. "Choice-of-court Agreements in the E-commerce International Contracts". Masaryk University Journal of Law and Technology 11, n. 1 (30 giugno 2017): 63–76. http://dx.doi.org/10.5817/mujlt2017-1-4.
Abstract (sommario):
The choice-of-court agreements are a common practice in the e commerce international contracts. In the European Union, the choice-of-courts agreements find their legal framework in Article 25 of Regulation No. 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis). The purpose of this paper is to analyse the current legal framework, in the European Union, of the jurisdiction agreements in international contracts concluded in e commerce, comparing it to the previous one, and taking into consideration the interpretative options of the European Union Court of Justice (ECJ).
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Fézer, Tamás. "The invalidity in the principles of European contract law – Common cores and alternate ways". European Integration Studies 18, n. 1 (2022): 84–92. http://dx.doi.org/10.46941/2022.e1.84-92.
Abstract (sommario):
The Principles of European Contract Law (PECL) has never been adopted as a binding legal authority in the European Union. While it remained a conclusion of a massive research project, the PECL certainly has an impact on the amendments to the legal framework for contracts throughout the Member States, and it serves as a unique lex mercatoria for European businesses. Furthermore, the PECL provides a starting point for any research that aims to identify common cores in the European contract law heritage. Chapter IV of PECL is dedicated to the validity of contracts, thus, this chapter serves as the base for the document’s approach to the invalidity of contractual obligations. The invalidity of contracts remains a much-debated legal phenomenon in almost all jurisdictions and international business law. The presentation embraces the instances of invalidity (mistake, threat, fraud, inaccuracy in communication, excessive benefit, unfair advantage, unfair terms not individually negotiated), matters not covered by the PECL (illegality, immorality, or lack of capacity), the concept and the effect of avoidance, and the consequences of avoidance in light of the most recent amendments to the contract law framework in the Member States. The central question is whether the PECL’s system on the invalidity of a contract may serve as a bridge between the different approaches of continental civil law legal systems and the common law legal systems. The presentation provides some examples of hot topics from the case law of selected municipal courts in Europe to identify the challenges courts face when deciding on the validity of contracts these days. Using these examples and combining them with some of the most recent legislative developments on invalidity across Europe, the presentation is searching for an answer to whether the common cores the PECL identified could help the spontaneous approximation of the laws of the Member States on contractual invalidity, or the Member States chose alternate ways to react to the practical challenges of the modern business environment.
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Mrozowska - Bartkiewicz, Beata, e Paweł Matej. "Gloss to the Judgment of the Court of Justice of the European Union of 29 April 2021 in the Case of Ostrów County v the Insurance Guarantee Fund (C 383/19)". Prawo Asekuracyjne 4, n. 109 (29 dicembre 2021): 96–106. http://dx.doi.org/10.5604/01.3001.0015.6038.
Abstract (sommario):
On 29 April 2021, the Court of Justice of the European Union in Case C 383/19 passed a preliminary ruling on the interpretation of Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 on insurance against civil liability in respect of the use of motor vehicles and the enforcement of the obligation to insure against such liability. This judgment is of key importance for Polish insurance industry, especially for maintaining the coherence of the compulsory insurance system of motor liability insurance for motor vehicle owners for damage caused by the use of their vehicles. The social function of this obligatory insurance is inextricably linked with the protection of third parties against the effects of frequent adverse incidents resulting from the use of motor vehicles in the modern world. What is more, a compulsory insurance contract ought not to be treated as a financial burden for vehicle owners, because it both protects possible perpetrators of motor accidents from serious financial charges and prevents an excessive depletion of their assets due to civil liability. The above-mentioned judgment concerns the confirmation of the principle that in the current Polish legal system there is no possibility of either ignoring the obligation to conclude a civil liability insurance contract or being exempt from such obligation, where the owner is not able to use the vehicle for some period owing to its technical condition.
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Betlem, Gerrit, e Gerrit Betlem. "European Private Law after the Treaty of Amsterdam". European Review of Private Law 9, Issue 1 (1 marzo 2001): 3–20. http://dx.doi.org/10.54648/335681.
Abstract (sommario):
The communitarization of the private law of the Member States has been given a significant impetus by the transfer of EC competence regarding judicial cooperation in civil matters from the third to the first pillar of the European Union. That is to say, under a new title of the EC Treaty, a single judicial area will be established; in terms of private law, the fields of private international law is involved to a large extent, whereas the civil procedure of the Member States will be affected to a lesser extent. In particular, the Community is in the process of transforming a number of conventions into secondary EC law, the most important one is the conversion into a Regulation of the Brussels Jurisdiction and Judgement Convention. Although the measures (to be) adopted in this context are 'real' acts of Community law - being based on the EC Treaty rather than the Treaty of European Union, the 'normal' regime for references for preliminary rulings does not apply. A more restricted regime is applicable. Also, the unity of Community law has been fragmented in that the measures are not binding on Denmark (the UK and Ireland are also not bound by acts adopted under this new Title but have opted in insofar as civil law measures are concerned). Harmonisation of substantive private law, unlike the conflicts of law and civil procedure, has not been affected significantly by the Treaty of Amsterdam. Private initiatives such as the Commission of European Contract Law (Lando Commission) are still the primary focus for proposals involving large scale harmonisation of private law, such as a systematic approximation of the whole of the law of obligations or even a European Civil Code.
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Abubakari, Maliha, Thomas Buabeng e Albert Ahenkan. "Implementing Public Private Partnerships in Africa:The Case of Urban Water Service Delivery in Ghana". Journal of Public Administration and Governance 3, n. 1 (14 marzo 2013): 41. http://dx.doi.org/10.5296/jpag.v3i1.3252.
Abstract (sommario):
The study sets out to given in-depth analysis of thePublic Private Partnership between the government of Ghana, represented by GWCL and Aqua Vitens Rand Ltd –AVRL from 2005-2011 and to generate an insight on how the implementation process faired from the perspective of implementers in particular, civil society organisations and the public utility workers union. The case study method within the qualitative approach was used for the study. The study also, made use of interview as the research instrument and respondents were purposively selected. The results of the study were subjected to an interpretative analysis combined with secondary data from the literature review. There were several grey areas in the management contract resulting in a number of ambiguities in various parts of the management contract. These ambiguities translated into delays in the implementation process. Also, there appeared to be conflict of interest on the part of GWCL, resulting in weak supervision. Political interference also weakened the structures established for the implementation of the contract. Leadership of GWCL was weakened as result of frequent changes in leadership and the fact that leaders were mostly in acting capacities. Despite the richness of the data, the study encountered a number of difficulties including the unwillingness of some senior level staff to participate in the study limits the diversity of perspectives which otherwise would have broadened the scope of the study. The findings provide deeper understanding to public policy implementation in respect of the management contract between GWCL and AVRL. The paper particularly contributes to the challenges implementers encounter in implementing management contracts from both implementers and non-implementers perspectives. It may also contain lessons for implementers in the private sector.
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Pokrzywniak, Jakub. "Consumer protection under Polish private law". Pravovedenie 65, n. 2 (2021): 236–47. http://dx.doi.org/10.21638/spbu25.2021.207.
Abstract (sommario):
This article discusses the provisions of Polish private law that grants protection to consumers. Particular attention is paid to contract law, but the impact of public law regulations for the provisions of civil law is also taken into consideration. The author presents a number of legal instruments used by Polish law in order to protect consumers in their dealings with merchants and analyzes the main features of consumer protection law in Poland. The influence of European legislation on Polish regulations is also discussed. It goes without saying that Polish consumer protection legislation has to be in line with EU directives. As is known, the protection of consumers plays an important role in EU legislation. The Polish lawmaker has the duty to implement European directives properly and timely into national law. Many Polish regulations regarding consumer protection seem to be a certain kind of translation of European directives. This is the simplest but probably the riskiest method of transposing EU law because it may lead to inconsistencies with national regulations. Although sometimes it seems to be forced by a tight timeline. At the same time, the general competence of the European Union for enacting consumer protection law as a part of civil law is lacking. This is due to the fact that the six founding Member States of the European Economic Union deemed law of contracts as part of the European Treaties to be redundant, since the legal systems of the states — founders of the Union, all based on Roman Law, should already provide a mutual understanding. It is obvious that the consumer needs protection in his/her dealings with merchants as he/she is a weaker party to the transaction. This weakness stems mainly from a lack of information and poor bargaining power. The consumer will never be a real partner in negotiations with a bank, a utility company or an airline.
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Titov, Nikolay D., e Valeria A. Goncharova. "SERVICE TO TOMSK STATE UNIVERSITY AS A LIFE CREDO OF PROFESSOR I.V. FYODOROV". Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, n. 39 (2021): 191–207. http://dx.doi.org/10.17223/22253513/39/15.
Abstract (sommario):
3 February marks the 100th anniversary of I.V. Fyodorov's birth. He will remain in the memory of his students, colleagues, postgraduates and doctoral students as a kind, intelligent and great professional. The article "Service to Tomsk State University as a vital credo of Professor I.V. Fyodorov" is devoted to the main stages of life and scientific-pedagogical activity of Doctor of Law, Professor I.V. Fyodorov, who devoted more than forty years of his life to the service to Tomsk State University. A significant part of scientific and pedagogical activity of I.V. Fyodorov at TSU falls within the Soviet period of the Russian state. The university life period of I.V. Fyodorov began on October 01, 1958, when he was hired at TSU. The main period of scientific and pedagogical activity I.V. Fyodorov fell in the 60-80 years of the last century. In pedagogical activity I.V. Fyodorov professed a number of own criteria of teaching: there is nothing more practical than a good theory, knowledge of principles easily replaces ignorance of some facts, students should be taught the law, and not the laws. The main object of I.V. Fyodorov's scientific interests was the civil law contract and its variant, the commercial contract. He studied these contracts as early as in his candi-date's thesis, and then from 1965 he continued in his doctoral thesis and in numerous articles. The main scientific conclusion of his research lies in a capacious formula: The contractual regulation of economic relations is a method of influencing the economy of the USSR. The authors of the article are convinced that I.V. Fyodorov's works have not only scien-tific and historical value. Certain positions of I.V. Fyodorov on the most topical problems of civil law, the main ideas which were expressed by him in the Soviet period of work have not lost their relevance in the post-Soviet period, and some - in the present time as well. These are, for example, the ideas about the fundamental basis of civil law, the relationship between the contract and the obligation, and the importance of fault in contract law, including in busi-ness activity. In his scientific and pedagogical work, I.V. Fyodorov paid much attention to individual work with students. He supervised 20 postgraduate students and was academic adviser to 2 doctoral students. Besides his scientific and pedagogical work, I.V. Fyodorov also took an active part in educational and methodical work at the Department: he was the co-author and editor of different educational and methodical textbooks and practical works on the general part of the civil law. Until 1995, he read the special course Business Contract (50 hours), and since 1995 he led the special course "Contract Law of Russia". During different periods of his life I.V. Fyodorov fulfilled numerous public assignments: he was elected a member of the Tymsk District Committee of the All-Union Komsomol of the Tomsk region, was a member of the CPSU, was elected to various party bodies, was the Chairman of the Tomsk Regional Society "Znanie". I.V. Fyodorov was awarded a number of state medals, he was also marked with TSU badges.
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Lambropoulos, Sergios. "The use of time and cost utility for construction contract award under European Union Legislation". Building and Environment 42, n. 1 (gennaio 2007): 452–63. http://dx.doi.org/10.1016/j.buildenv.2005.08.002.
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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 (1 agosto 2009): 581–97. http://dx.doi.org/10.54648/erpl2009039.
Abstract (sommario):
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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Kovalenko, I. A. "Analysis of the harmonization of contract law Ukraine with the law of the European Union". Uzhhorod National University Herald. Series: Law 1, n. 78 (28 agosto 2023): 181–85. http://dx.doi.org/10.24144/2307-3322.2023.78.1.29.
Abstract (sommario):
The introduction of European norms into national legislation can cause certain problems and disagreements.The reasons that can lead to such disagreements, which are mentioned in the statement of the problem, are primarily cultural and historical differences. Countries have their own cultural and historical characteristics that affect their legal systems. European norms may not always take these differences into account, which may lead to differences in the interpretation and application of the law.The reason is the needs and peculiarities of the national economy, because each country has its own economic structure and needs. European norms may not take into account the specifics of the national economy, which may lead to disagreements and cause difficulties in the implementation of certain provisions.European norms may be formulated ambiguously or leave certain aspects uncertain. This can lead to differences in the interpretation and application of the law, as well as to different approaches in court decisions, which is legal ambiguity.Time constraints and the accelerated process of harmonization are also one of the reasons due to differences between Ukrainian and European law. The implementation of European norms can take place at a fast pace, which can make it difficult to adapt and ensure full compliance with national legislation. This can lead to ambiguities and inappropriateness in the legal system.And integration with European law can create challenges in ensuring a unified mechanism for control and dispute resolution. Differences in the interpretation and application of European norms can create problems in resolving disputes between the parties. Therefore, the lack of a single control mechanism is also a reason.Ukrainian contract law needs legislative adaptation. After all, the implementation of European norms requires significant changes in national legislation. This can cause difficulties and require time and resources to implement the necessary reforms.One of the reasons is the lack of full compliance. Ukraine may have difficulties in achieving full compliance with European norms due to various factors, such as backwardness in the development of the legal system, corruption, insufficient legal culture, etc. This can lead to unresolved issues and disagreements with European law.The next reason is the implementation of requirements and standards. Harmonization of contract law with European norms requires the introduction of new requirements and standards. This can be a challenge for government bodies, lawyers, courts and other participants of the legal system, who must familiarize themselves with the new rules, acquire the necessary skills and abilities to apply them.Harmonization of contract law to European standards may also require significant financial costs. This is due to the need for reforms, training of specialists, development and implementation of new laws and legal instruments. The government and other stakeholders must commit sufficient resources to ensure successful harmonization, which is a challenge.The reason for the discrepancy between domestic and European law is the interaction with other branches of law. Harmonization of contract law can affect other areas of law, such as economic, civil and labor law.Changes in one area may necessitate changes in the corresponding areas, which may cause complications and disagreements in their interaction.Harmonization of contract law requires broad public support and involvement. This means the need to inform citizens, businesses and other interested parties about the changes, hold consultations and take into account their opinions and suggestions. Support and involvement of society is needed. Despite these challenges, the harmonization of contract law of Ukraine with European law remains important and necessary. This will contribute to the creation of a single legal space, increased protection of the rights of citizens and enterprises, development of trade and investments, and improvement of justice.However, it is important to take into account the specificities and needs of the country when implementing European norms, ensuring a balance between global standards and national realities.