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1
Andreev, Yury N. "About judicial protection of subjective civil rights". Russian Journal of Legal Studies (Moscow) 7, nr 1 (7.08.2020): 9–16. http://dx.doi.org/10.17816/rjls34732.
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The article is devoted to the judicial protection of subjective civil rights. The author tries to formulate the concepts of subjective civil rights and the judicial protection of subjective civil rights to determine the ratio of subjective civil rights and the right to judicial protection as well as the judicial protection features of various subjective civil rights categories. The paper presents the authors conception of subjective rights, the various ways by which they are protected, and the features of the protection of certain types of subjective civil rights. The aim of the research is to find the most optimal ratio of the right of subjective rights owner to protection and the right of subjective right for protection, in order to determine the most typical ways to protect certain categories of subjective civil rights. The methodological basis of the research includes the well-known general and private scientific methods of scientific knowledge. The paper concludes by stating that subjective civil rights have general (universal) and specific ways of protection.
2
Arestova, L. "THE CASE OF ADMINISTRATIVE JURISDICTION: THEORETICAL ASPECTS OF LEGAL DISPUTES ARISING FROM PUBLIC-LEGAL RELATIONS". Scientific Notes Series Law 1, nr 11 (listopad 2021): 97–102. http://dx.doi.org/10.36550/2522-9230-2021-11-97-102.
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The author determined that the conflict of interests is that in substantive or procedural legal relations, according to the non-governmental entity, violates his subjective public interest in the implementation of subjective public (eg, the right to vote, civil service) or private law (for example, the right to land), the satisfaction of public (for example, the desire to use the road surface in excellent condition) or private interest (for example, the desire to become a lawyer). It is determined that the administrative court, resolving the dispute between the parties, promotes the settlement of incompatible or conflicting interests of the parties, protection of the subjective public interest of the non-governmental entity, its both public and private subjective rights. At the same time, the court also contributes to the protection of the procedure for the exercise by the subject of its public authority, which ensures the legality and protection of public order. It is noted that a person uses subjective public law to satisfy his personal (for example, registration of land rights) or public interests, needs (for example, the use of space for a rally). It is noted that the direct subject of protection in the administrative court is the subjective public right of a person to apply to public administration bodies, if the realization of another subjective right of a person (public or private) is impossible without interaction with the subject of power, which is obliged promote such implementation. A public law dispute covers only disputes about public law, ie about the protection of only subjective public law. Whereas, a dispute arising from a public-law relationship is caused by a violation of subjective public law and provides for the protection of the rights and interests of the individual, regardless of their legal nature (both private and public). The subject of jurisdiction of administrative courts is not all disputes arising from public law relations. The distinction between disputes to be considered in different types of proceedings should take place at the legislative level, taking into account the reasoned positions of leading scholars on the removal from a code of those provisions that prevent the precise determination of the jurisdiction of the court.
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Chub, A. V. "System of subjective public rights of a private person". Legal Novels 2, nr 10 (2020): 105–11. http://dx.doi.org/10.32847/ln.2020.10-2.14.
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Muzyczka, Karolina. "Protection of private property expropriation". ASEJ Scientific Journal of Bielsko-Biala School of Finance and Law 22, nr 2 (3.07.2018): 35–44. http://dx.doi.org/10.5604/01.3001.0012.4668.
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The basic law related to real estate/property is the right of ownership. It is the basic institution of property law in Poland and together with property ownership and the right of inheritance, is constitutionally protected. The provisions of the Constitution of the Republic of Poland of 1997, which set the standards for protection of property rights, are heterogeneous. This results both from their location in the basic law and from the wording. There are provisions in the form of constitutional principles, provisions expressing subjective rights, as well as provisions providing procedural guarantees for the implementation of the former. This multitude of forms creates some interpretative difficulties, the resolution of which is often dealt with by the Constitutional Tribunal. The considerations in the paper are based on various research methods, especially on the dogmatic and legal method. The author discusses achievements of jurisprudence and doctrine with respect to property rights, regulations of the Constitution, expropriation in civil law, judicature of the Polish Constitutional Tribunal and other Polish courts as well as acts of international law e.g. the jurisprudence of the European Court of Human Rights.
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Kruszewski, Tomasz, i Leonard Górnicki. "Zasadnicze przejawy ingerencji w prawa podmiotowe prywatne jednostek przez III Rzeszę". Studia nad Autorytaryzmem i Totalitaryzmem 39, nr 1 (8.09.2017): 45–74. http://dx.doi.org/10.19195/2300-7249.39.1.3.
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ESSENTIAL MANIFESTATIONS OF INTERFERENCE IN SUBJECTIVE RIGHTS OF PRIVATE INDIVIDUALS BY THE THIRD REICHThe article analyzes the most important manifestations of limitation of subjective rights of private individuals by the Third Reich. The authors begin the article by undermining by the national socialist regime one of the fundamental principles, which is equality before the law. Then, the authors analyze the violations of particulars individual rights of private individuals.The purpose of the authors is to demonstrate that the self-reliance of aperson Eigenständigkeit has ceased to be an essential element of private law in the national socialist legal order. The sphere in which the subject of law could freely regulate the legal situation created by acts of his will, became clearly restricted. But also, and even more specifically, the sphere of traditionally protected civil rights of private individuals has fallen. The interference of the national socialist regime in the sphere of human privacy followed by changes both in civil and in public law. The existence of a formal legal basis was supposed to exclude the unlawfulness of the behavior of the subjects of the law, especially the state, its organs and institutions, but in the light of the idea ofthe law of the civilized nations it was “statutory lawlessness”.
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Spanò, Michele. "Making the Multiple:". South Atlantic Quarterly 118, nr 4 (1.10.2019): 839–55. http://dx.doi.org/10.1215/00382876-7825648.
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The essay argues for the compatibility between private law and the commons. In order to do so, it proposes an archeology of modern private law, which traces both the emergence of what will be called “modern topology” and the historical transformation of civil law into what we still know as private law. Private law is considered to be a product of modern legal theory which is radically tied with public law. The two are meant to have the very same logical form—individuality—which was the premise for the social relation of capital to be established. The pivot of this legal maneuver—which ended up with the exclusion of the commons from the realm of both private and public law—was the theory of subjective rights. To dismantle this construction, the essay proposes a critique of subjective rights as well as a trans-subjective approach to private law.
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Krahé, Justin Friedrich. "The Impact of Public Law Norms on Private Law Relationships". European Journal of Comparative Law and Governance 2, nr 2 (7.05.2015): 124–55. http://dx.doi.org/10.1163/22134514-00202002.
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This article examines the doctrinal foundation and potential for harmonisation of horizontal effect in German and English law against the common legal background of the echr and eu law. It compares direct horizontal effect with two models of indirect horizontal effect, based either on objective constitutional values (indirect Model A), or subjective public law rights (indirect Model B). It is contended that indirect horizontal effect based on subjective public law rights, particularly those corresponding to the state’s obligation to respect, protect and fulfil human rights, provides a coherent and predictable solution to most problems arising in horizontal effect cases.
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TRETYAKOV, S. V. "THE CLASSICAL INTEREST THEORY OF RIGHTS IN PRIVATE LAW". Civil Law Review 20, nr 4 (20.10.2020): 5–44. http://dx.doi.org/10.24031/1992-2043-2020-20-4-5-44.
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This is an attempt of rational reconstruction and critique of the Rudolph von Jherings theory of subjective right, commonly known as “the interest theory”. First, the basic shortcomings of the classical will theory (a major alternative to the interest theory) have been articulated, which I see as a reason of the elaboration of the alternative model by Jhering. Second, the structural analysis of the Jherings interest theory has been accomplished. From the structural standpoint, Jherings theory has two components: one, substantial (interest) and another, formal (legal remedy, granted by the law when the interest has been unlawfully attacked). This two-component model seems to be unstable and prone to self-contradictions. The major reasons for such a case are the indeterminacy of the concept of interest, an inherent trend within the interest theory to replace legal analysis with sociological enquiry, as well as coherence problem with some controversial instances of subjective rights. In a broader context, Jherings interest theory can be seen as an attempt to reconcile Kantian-based German private law theory with the elements of British utilitarianism.
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Fedchyshyn, Dmytro, i Iryna Ignatenko. "About restrictions of land rights in Ukraine". Journal of Geography, Politics and Society 9, nr 1 (31.03.2019): 23–27. http://dx.doi.org/10.26881/jpgs.2019.1.03.
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The article deals with restrictions on the exercise of land rights. Attention is paid to the consideration of the content of the concept of “restriction of subjective right to land” and the views of domestic scientists regarding its definition are analyzed. The classification of restrictions on rights to land by different criteria is proposed. The peculiarities of reconciliation of public and private interests in the establishment of restrictions on the rights to land are explored.
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CHUB, A. V. "THEORIES OF ORIGIN OF SUBJECTIVE PUBLIC RIGHTS OF A PRIVATE PERSON". Law and Society, nr 5 (2020): 104. http://dx.doi.org/10.32842/2078-3736/2020.5.15.
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TRETYAKOV, S. V. "THE “GERMAN THEORY” OF SUBJECTIVE RIGHTS IN THE CONTINENTAL PRIVATE LAW DOCTRINE". Civil Law Review 20, nr 2 (20.05.2020): 18–59. http://dx.doi.org/10.24031/1992-2043-2020-20-2-18-59.
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Kostyukevich, S. "Guarantees of implementation and protection of the administrative and legal status of a private natural person in the public sphere". Uzhhorod National University Herald. Series: Law 2, nr 72 (27.11.2022): 257–61. http://dx.doi.org/10.24144/2307-3322.2022.72.82.
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It is indicated that in the theory of law there are still quite relevant discussions regarding the definition of the criteria for the relationship and delimitation of such categories as “mechanism of legal regulation” and “mechanism of implementation and protection of the legal status of a citizen”. According to separate unified approaches to the criteria for distinguishing such categories, it is emphasized that, in general, the mechanism of legal regulation should be considered as a basic element of the mechanism of implementation and protection of the legal status of a citizen. The mechanism of legal regulation establishes the general principles of the implementation and protection of human rights and freedoms in a sphere independent of social legal relations, defining the fundamental principles of human and citizen participation, establishing a system of law enforcement and human rights protection means and methods of implementation and protection of the legal status of a private person.
It has been proven that the system of guarantees for the implementation and protection of the administrative-legal status of a private natural person in the public sphere has a four-level structure, to which the level of regulatory regulation, institutional definition of the system, procedural order and the level of law enforcement are possible. At the administrative-legal level of the administrative-legal mechanism, ensuring the rights, freedoms and interests of private individuals is actually carried out with the help of a certain set of legal norms that provide guarantees for the exercise of subjective public rights in power-management relations. At the institutional level of administrative-legal regulation of the exercise and protection of subjective public rights, a private person is a certain set of state authorities and local self-government bodies (i.e., public administration bodies) that are obliged to perform the tasks of ensuring and promoting the realization of the administrative-legal status of a person and a citizen of Ukraine. The third level of the system of guarantees for the implementation and protection of the subjective public rights of a private person is the administrative-procedural (management) level, which includes a certain set of administrative procedures that allow the realization of the rights, freedoms and interests of non-authoritative subjects of administrative law.The law-enforcement level of the normative-legal mechanism for the protection of subjective public rights, freedoms and interests of individuals and legal entities includes a set of administrative and administrative-judicial procedures that allow to guarantee the realization of the rights, freedoms and interests of non-authoritative subjects of administrative law at the appropriate level of efficiency.
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Amangeldy, Aizhan Amangeldykyzy. "INTERACTION OF INTELLECTUAL PROPERTY LAW WITH BRANCHES OF PRIVATE LAW". Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan 4, nr 75 (29.12.2023): 70–79. http://dx.doi.org/10.52026/2788-5291_2023_75_4_70.
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In this article, a study is conducted on the interaction of intellectual property law with branches of private law. In particular, the interaction of intellectual property law with civil law is substantiated. Intellectual property law acts as a sub-branch of civil law, respectively, the subject of legal regulation also consists of property and personal non-property relations that develop with respect to intellectual property objects. In turn, the exclusive right to intellectual property belongs to the category of property rights, and as a subjective right is one of the objects of civil rights. Some provisions of the article are devoted to the analysis of intellectual property rights with the institute of non-contractual obligations. Often, the creation of intellectual property objects is the subject of competitive obligations, and copyright holders may be harmed as a result of torts. Exclusive rights also act as the subject of inheritance and inheritance law, exclusive rights can be the subject of hereditary legal relations, which is also reflected in the content of the article. The issues of interaction of intellectual property law with private international law are touched upon, since intellectual property law is one of the institutions of private international law, which provides for conflict-of-laws regulation of relations complicated by a foreign element [1]. The uniqueness of intellectual property rights is also manifested in connection with labor law, since the subject of interaction is relations regarding official works and inventions, which, as a rule, are determined by an employment contract, but require compliance with special legislation of the Republic of Kazakhstan [1]. The article analyzes the interaction of intellectual property law with family law, since exclusive rights and intellectual property objects, being property, can be the subject of family legal relations.
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Теребунов, А. А. "Private law forms of exercising opportunities and performing obligations". Вестник Московской академии Следственного комитета Российской Федерации, nr 4(38) (18.12.2023): 31–39. http://dx.doi.org/10.54217/2588-0136.2023.38.4.003.
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В статье рассмотрены основные формы социально-правовых связей, не составляющих содержание правоотношения. К их числу отнесены секундарные права, кредиторские обязанности и обременения. Гарантированное осуществление возможностей и исполнение долженствований в рамках этих и иных частноправовых форм является одной из важнейших задач прокурорского надзора. Нормы частного права направлены на защиту и обеспечение субъективных прав. Но именно на этапе, когда правоотношение еще не возникло и субъективные права еще отсутствуют, у субъектов частного права возникает масса необоснованных препятствий для реализации своих возможностей. Ввиду этого нарушается и сама возможность стать участником гражданских, семейных, жилищных и трудовых отношений. The article examines the main forms of social and legal relations that do not constitute the content of the legal relationship. These include secondary rights, creditor obligations and encumbrances. Guaranteed implementation of opportunities and fulfillment of obligations within the framework of these and other private legal forms is one of the most important tasks of prosecutorial supervision. The rules of private law are aimed at protecting and ensuring subjective rights. However, precisely at the stage when the legal relationship has not yet arisen and there are still no subjective rights, subjects of private law face many unreasonable obstacles to realizing their capabilities. In view of this, the very possibility of becoming a participant in civil, family, housing and labor relations is violated.
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Yermolaeva, T. A., i A. A. Ananeva. "CIVIL LEGAL PERSONALITY OF PHYSICAL ENTITIES: THE CONTENT EVOLUTION". Lex Russica, nr 12 (4.01.2020): 9–18. http://dx.doi.org/10.17803/1729-5920.2019.157.12.009-018.
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The article is devoted to the memory of the outstanding Russian scholar Dmitriy I. Meyer (1819—1856) — the ancestor of Russian civilistics who declared that the rights of individuals depend on different circumstances that are, to some extent, natural and, to some extent, historical. Meyer’s statement that “there are different degrees of insanity: sometimes it is stronger, sometimes weaker” turned out to be accepted by the Russian legislator only in 2015 by making appropriate changes in the Russian legislation regarding the problem of legal capacity of citizens. The paper has investigated the evolution of the content of legal personality of individuals in the field of private legal relations, including family relations, as well as in the field of relations complicated by a foreign element, i.e. in the field of private international law. On the basis of the analysis, the author explores a civil legal personality of a natural person category as her ability to be a subject of civil law including such elements as capacity and legal capacity. Civil capacity should be understood as a legally equal abstract opportunity for everyone to have civil rights and duties. It is unacceptable to consider capacity as a subjective right to have the right: this leads to an unjustified doubling of the category of “subjective right” and hinders a proper understanding of the mechanism of civil regulation. The article investigates the subjective right as implementation of capacity of a particular person, and, therefore, citizens being legally equal in their capacity, to be not equal in the presence of specific subjective rights that constitute the content of their capacity in the abstract form. The authors have analyzed the amendments to the Civil Code of the Russian Federation introducing a new basis for limiting the legal capacity of citizens, as well as taking into account the degree of actual reduction of the ability of citizens to understand the meaning of their actions or to be in control of such actions. The article analyzes the conflict-of-laws principles of determination of capacity and legal capacity of foreign citizens. Jurisprudence, along with the recognition of the national regime of foreign citizens on the territory of the Russian Federation, indicates the need to apply foreign laws in determining the civil capacity and legal capacity of foreign nationals. The article analyzes the private law component of the institute of retortions the immediate purpose of which is to protect private rights and legitimate interests of Russian citizens. Thus, the content of the concept of civil personality of natural persons in the field of private law relations that consists of such categories as capacity and legal capacity evolves into the recognition of equality and the protection of the interests of all persons on the basis of the principles of justice, humanity and reasonability. At the same time, the State secures legal guarantees applied for the completion of the legal capacity of minors and certain categories of adult citizens through institutions of parental responsibility, guardianship and custody and establishes procedural guarantees of observance of the rights of these persons in judicial proceedings.
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Dobosh, Zoryana. "Administrative and legal guarantee of the rights and legitimate interests of ukrainian citizens in the field of public administration in Ukraine". Visnik Nacional’nogo universitetu «Lvivska politehnika». Seria: Uridicni nauki 10, nr 40 (18.12.2023): 77–85. http://dx.doi.org/10.23939/law2023.40.077.
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The article is devoted to the problem of administrative-legal guarantee of the rights and legitimate interests of Ukrainian citizens in the sphere of public administration in Ukraine. Special attention is devoted to the analysis of the rights and legitimate interests of a person in the field of public administration as a subject of administrative and legal guarantees in Ukraine. It has been established that the source of guaranteeing individual rights in the field of public administration is the state. Other institutions of the state acting as subjects of administrative and legal guarantee of the rights of the individual in the field of public administration, broadcasting his will, endowed by the state with special competence, effective means of guaranteeing the rights of the individual. The article analyzes the peculiarities of the combination of public interest and private legitimate interests of individual individuals, the theory of the dualism of private and public interest within the framework of subjective public law, presents an analysis of the category "public legitimate interests", and the structure of subjective public rights. It was found that the category of subjective law in the public legal sphere is wider than the category of subjective public law. Particular attention is paid to the types of subjective public human rights, since their satisfaction is the most important subject of administrative and legal guarantee by the state, in particular through the mechanism of judicial control. Special attention is devoted to the analysis of public-civil, public-political, public-social rights. Positive and negative public, general and special rights in the researched area are singled out. It was noted that the practical implementation of administrative and legal guarantees of individual rights requires the involvement of a wide range of state institutions endowed with the necessary competence to create conditions, implement means aimed at guaranteeing the possibility of implementing individual rights and, if necessary, their protection. The features of guaranteeing the legal rights of a person, the system of such guarantees are characterized. It is emphasized that while guaranteeing a wide range of legal opportunities, the state should focus on developing a clear mechanism for countering the abuse of law in the field of public administration in wartime conditions.
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Vasylieva, Iryna. "GUARANTEE OF PROTECTION OF RIGHTS AND INTERESTS OF TAXPAYERS IN TAX DISPUTES". Baltic Journal of Economic Studies 8, nr 2 (25.03.2022): 36–43. http://dx.doi.org/10.30525/2256-0742/2022-8-2-36-43.
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In the article, the author proposes under the protection of the rights of the taxpayer to understand his actions (in some cases inaction), which he commits in accordance with the norms of tax legislation, on the one hand, and law enforcement activities of the authorized subjects of state power and their officials (in case the subject appeals by force of state enforcement), on the other hand, to stop violations of rights, restore violated rights, eliminating the threat of their violation. The main subjects authorized by the state to protect the rights of the taxpayer are the tax and judicial authorities. It is with the violation of subjective right legislator associates the use of remedies, enshrining in the Tax Code of Ukraine the right of taxpayers or tax agents to appeal the actions, inaction and decision of the tax authorities and their officials. Appeal of an interested person for protection of his rights implies the emergence of a substantive legal claim against the defendant for the implementation of his violated material interests. The substantive legal claim arises from a subjective substantive right arising in a substantive legal relationship. The plaintiff (taxpayer) believes that in order to exercise his subjective right, he has the right to demand from the defendant (tax authority), which is in a material legal relationship with him, the commission of certain actions or refraining from actions consistent with the right of the plaintiff. Appeal of an interested person for protection of his/her rights is aimed not only at realization of guarantees of their realization, but also at resolution of the arisen conflict. The need to have certain legal means of resolving a legal conflict is an integral element of legal regulation, since it ensures the implementation of a legal norm and its stability. Protection of violated rights and legitimate interests of the subjects of public-law relations is carried out by controlling the legality of actions (inaction) of the subjects of powers and acts adopted by them. Current tax legislation as a way to protect rights provides for the possibility to recognize an act of a tax authority as invalid, and its actions (inaction) – as not complying with the law. Legislator, by regulating the administrative and judicial procedure for resolving a tax dispute, thereby protects private interests from possible disfigured state interference. In this case, the administrative court, resolving a tax dispute, does not examine the conduct of the parties as such, but establishes how it complies with the norms of current tax legislation. It is on this basis the task of administrative court and its purpose of jurisdictional activity in resolving a dispute in the field of public-law relations is based, namely on the balance of rights of the state with the counter rights of a person (taxpayer) to ensure its protection of rights and legitimate interests, as applied for such protection. Dispute in relations regulated by the norms of tax law acts as a mechanism to guarantee the realization of subjective rights of taxpayers and balancing public and private interests, because it is aimed at protecting and restoring the violated (disputed) right.
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Chub, A. V. "SUBJECTIVE PUBLIC RIGHTS OF A PRIVATE PERSON AS AN INSTITUTE OF ADMINISTRATIVE LAW". Scientific notes of Taurida National V.I. Vernadsky University. Series: Juridical Sciences, nr 5 (2020): 89. http://dx.doi.org/10.32838/tnu-2707-0581/2020.5/16.
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Kruszewski, Tomasz. "Prawo osobowe na ziemiach polskich wcielonych do Rzeszy Niemieckiej podczas drugiej wojny światowej". Studia nad Autorytaryzmem i Totalitaryzmem 43, nr 3 (20.12.2021): 465–514. http://dx.doi.org/10.19195/2300-7249.43.3.31.
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The subject of this article are basic questions within the range of civil law. They concern the general position of a human and legal people in the sphere of this law on Polish territory, which was incorporated into the Third Reich. The position of individuals, the citizens of II RP, under the occupation of the Third Reich in years 1939–1945, is analysed by the author not from the perspective of literal meaning of regulations of general part of Bürgerliches Gesetzbuch (BGB) from 1896, but from the perspective of their specific interpretation, congruent with strategic and ideological purposes of the Nazi regime.
In the article, the following issues are touched upon in turn: 1) personal law in terms of classical civil law contra national-socialist regime; 2) racism towards civil rights of a subjective individual; 3) elimination of the Jews from the legal relationships of civil law; 4) difficulties in the sphere of access to certain professions for Polish people and some restrictions upon personal rights; 5) the dependence of possibilities of exercising the private personal right on the consent to denationalization; 6) ban concerning getting married and the right to motherhood and fatherhood; 7) legislation of sterilisation and euthanasia.
The formal changes in the legislation which were in force in the Third Reich — except for personal and family law (as well as legal rules connected with it regarding health protection of offspring), and “peasant law” (Bauernrecht) — were not significant, as is proved by the author. The old legal order was reversed in the Third Reich due to its new interpretation: classical concepts and legal institutions were filled with a different content.
After the formal extension of BGB to territories incorporated into the Reich, which followed the decree of 25 September 1941 introducing German civil law, these territories became a field of social-political and racial-nationalist experiments, which in fact had a little in common with the German Civil Code’s regulations. A principle of equal access to private subjective rights was respected only in case of German people, i.a. the part which passively gave up to indoctrination. In relation to Jews, racism spoiled in this case the idea and concept of private subjective rights.
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Karavaeva, Ya N. "Custom as a Source of Legal Regulation of Property Relations in the Russian Federation". Actual Problems of Russian Law 16, nr 6 (9.07.2021): 114–22. http://dx.doi.org/10.17803/1994-1471.2021.127.6.114-122.
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The paper discusses the issue of the use of custom in the regulation of property relations. The author analyzes the possibility of determining the content of subjective property rights by customary legal norms, namely, such powers as the use and disposal. Attention is focused on the influence of customs on the formation of the owner’s discretion in the exercise of his subjective rights, in particular, the following questions are investigated: on what or on whom does this “discretion” depend? Is it possible that customs influence the formation of the discretion of a particular owner? Special attention is paid to the establishment of limits for the exercise of property rights under customary legal norms. According to the author, applying custom in the regulation of public relations, the owner of a property right does not go beyond the legal field, since custom is a source of law, and in this case one should speak of “discretion within the current legislation” and “discretion beyond it.” The paper concludes that customs can determine the content of subjective property rights, methods of protecting property rights, in particular self-defense issues, and are more often used in the regulation of real legal relations based on private ownership, while customs cannot contradict the peremptory norms. It is emphasized that a special role in the regulation of property relations is assigned to local customs.
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Mikhnevych, L. "Freedom of movement: problems of correlation of public-law and private-law approaches". Analytical and Comparative Jurisprudence, nr 2 (11.05.2024): 161–66. http://dx.doi.org/10.24144/2788-6018.2024.02.27.
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The author of the article examines the essence and nature of freedom of movement as an institution that embodies the idea of freedom in law. She proves that in the Constitution of Ukraine and in the norms of public law in general, freedom of movement is declared as a fundamental freedom of a person and a citizen. The specific content of freedom of movement is revealed through a number of subjective rights, which are defined in the norms of public law. These are the following rights: the right of a person to free and unhindered movement within the territory of Ukraine; the right to leave Ukraine; the right to unimpeded return of a citizen of Ukraine to Ukraine; the right to freely choose the place of residence/stay. At the same time, the Constitution of Ukraine declares the right to freely leave the territory of Ukraine, but the provisions of the special law do not mention "free" departure from the territory of Ukraine, and therefore the special law somewhat narrows the limits of freedom of movement. In contrast to public law, in the norms of private law (in the Civil Code of Ukraine), the right to freedom of movement is enshrined as a subjective civil right, but not a fundamental freedom. The content of this right includes the possibility of free movement on the territory of Ukraine and the right to leave the territory of Ukraine and return (citizens of Ukraine) to Ukraine without hindrance. According to the norms of civil legislation, the right to freedom of movement also includes the ability to freely choose a place of residence, but this applies only to a minor. The author proves the fallacy of this approach and substantiates the conclusions that, firstly, the right to freely choose a place of residence cannot exist without the right to a place of residence; secondly, the possibility to freely choose the place of residence/residence should be included in the content of the right to freedom of movement.
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Wauters, Bart. "Grotius, Necessity and the Sixteenth-Century Scholastic Tradition". Grotiana 38, nr 1 (22.12.2017): 129–47. http://dx.doi.org/10.1163/18760759-03800008.
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The essay investigates elements of sixteenth-century scholastic thought that have played a role in Grotius’s doctrine of necessity: the nature of the rights of the person in extreme need; the relation of the right of necessity to self-preservation; the compact that lies at the origin of property rights; and finally the obligation of restitution once the emergency is over. Grotius did not develop the doctrine of necessity as an abstract principle about the relationship between private property and subsistence rights. Instead, he used it primarily as a normative principle on permissible behavior in times of war. The comparison with sixteenth-century thought and the practical purposes for which he developed the principle help to understand better the Grotian conception about the subjective nature of the right of necessity and its normative foundation.
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Haliantych, M. K., i O. V. Pyzhova. "IMPROVEMENT OF PRIVATE LAW MECHANISMS FOR EXERCISE OF SUBJECTIVE HOUSING RIGHTS IN MODERN CONDITIONS". State and Regions. Series: Law, nr 4 (2023): 31–36. http://dx.doi.org/10.32782/1813-338x-2023.4.4.
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S. V., Miroshnik. "Abuse of the Rights of the Taxpayer". Rossijskoe pravosudie, nr 9 (23.08.2021): 94–102. http://dx.doi.org/10.37399/issn2072-909x.2021.9.94-102.
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Statement of a problem. The design of abuse of law, first developed for the sphere of private law, was further transferred to the sphere of public law. But this does not make it possible to equate abuse of law in private and public relations. There is a fundamental difference between them due to the nature of the regulated relations, the specificity of the methods of legal regulation. The process of shaping and developing perceptions of the possibility of abuse of rights in the field of taxation has gone through a complex, contradictory path of development. Initially, the Constitutional Court of the Russian Federation effectively recognized that the category «abuse of the right» did not apply to taxpayers. However, the need to find a balance between public and private interests required the development of fundamentally new approaches, naturally derived from the content of general and special principles of tax law. The aim and objectives of the study is to carry out a systematic analysis of the peculiarities of taxpayers» abuse of their subjective rights. Methods. Methods of knowledge of legal reality are used general (dialectic), general scientific (the analysis, synthesis, classification, generalization, the description) and private and scientific (legallistic, interpretation methods) when carrying out a research. Conclusions. Abuse of tax law is a particular form of tax offences. Unlike the offences of the classical kind, its wrongfulness, the public danger is veiled as the subject tries to take his behavior into legal form. Abuse of the law in the field of taxation is an illegal socially dangerous act of the taxpayer, in the sense that the person, based solely on his own interests, deliberately goes beyond the limits of a legally defined measure of possible behavior, while unduly reducing the measure of his proper behavior and the measure of possible behavior of other participants in tax legal relations. The courts, given the nature of the abuse committed, may deny a person the protection of his subjective right in whole or in part; Oblige a person to comply with his or her tax obligation; To decide on compensation for the damage caused to the public interest in the form of an accrual and recovery of penalties for late payment of fiscal payments and tax sanctions – fines for improper performance of public legal obligations in the field of taxation.
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Suleimenov, Maidan K., Oleksii O. Kot i Serhii O. Pohribnyi. "A Pan-European Dimension to the Implementation and Protection of Civil Rights". Global Journal of Comparative Law 10, nr 1-2 (25.06.2021): 61–72. http://dx.doi.org/10.1163/2211906x-10010006.
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Abstract The study of subjective law in the scientific and theoretical literature has a long history, which is conditioned by the crucial importance of this category for private law in general and legal relations in particular. The purpose of the article is to analyse the pan-European dimension of the exercise and protection of civil rights. Key methods of research used are the method of comparative legal analysis and the method of linguistic and systematic interpretation of legal texts. It was concluded that the court’s method of protecting subjective civil rights must comply with the rules of law and their meaning, which should be understood on the basis of a systematic analysis of the mechanism for legal regulation.
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Azizov, Khudoykul. "INVIOLABILITY OF THE RIGHT OF OWNERSHIP OF SUBJECTS OF BUSINESS ACTIVITY". Jurisprudence 2, nr 3 (19.07.2022): 65–73. http://dx.doi.org/10.51788/tsul.jurisprudence.2.3./qztl8541.
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The article examines the main problems associated with the consolidation of the most important fundamental right in the constitution of the state – the right of private property, suggests approaches to identifying the content of the constitutional principle of inviolability of property, considers the possibility of distinguishing between subjective property rights and the corresponding sectoral (civil law) law, analyzes the features of regulation of private property rights in relation to the most important (constitutional) property objects. The author focuses on the civil law principle of inviolability of property, which arises with objective inevitability and ensures both the legality of a person’s connection with a thing and its continuous functioning. However, as the article emphasizes, for the effective implementation of this key principle, it is necessary to see and take into account the social function of property rights associated with the fair distribution of resources and the affirmation of the spiritual principles of modern civil society. Objective: to trace the patterns of civil law regulation of relations related to the forced termination of property right;. to develop scientifically-based recommendations for improving this institution in order to effectively implement the principle of inviolability of property and taking into account both the material and social aspects of its manifestation. Also practical examples related to the restriction of freedom of entrepreneurial activity and violation of the inviolability of private property, solutions to eliminate problematic situations are given.
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Burmistrova, Svetlana A. "The measures to protect public legal interests in the civil process". Pravosudie / Justice 3, nr 1 (25.03.2021): 69–85. http://dx.doi.org/10.37399/2686-9241.2021.1.69-85.
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Introduction. The civil legislation of Russia has a list of general ways to protect civil rights. There is comprehensive list of ways to protect public-law subjective rights and interests either in legislation or in legal science. As a result, some methods of protection that are explicitly named in the law are widely used in practice and have been sufficiently studied in science, while others that do not have direct legislative support are little or practically not used in practice, which leads to weak protection of rights and interests that could be protected by such methods. Theoretical Basis. Methods. In order to make the most complete list of the methods of protecting public-law subjective rights and interests and, if possible, bring such methods into the system, the author of the article proceeded from the following ideas: – social interests regulated by law (legal interests) have a different probability of achieving the object (the social good they are aimed at) and are divided into three categories, namely interests with a maximum (subjective rights), minimum (legitimate interests) and intermediate probability of achieving the object (legitimate interests that can be transformed into subjective rights by an act of law enforcement); – legal interests in the implementation process go through a number of stages, each of which can be violated in a special way. Knowing what constitutes a violation in each of the stages, allows an accurate choice of a method of protection from the range of availale measures; – the importance of implementing legal interests for the society is not the same. General (public) significance leads to the fact that the interest is regulated by public law. The private significance of an interest entails its regulation by private law. Results. It is argued that public and private entities can be carriers of public legal interests. It is proved that relations arising from the implementation of public-legal interests can be based on subordination or equality, and therefore the subjects of public-legal relations can have a powerful, subordinate and equal status. The article presents a system of measures and measures that should be applied in cases of violations of public-legal interests of powerful, subordinate and equal participants in public-legal relations at various stages of the implementation of such interests. Discussion and Conclusion. The results obtained can serve as a basis for improving the procedural means of protection and proceedings for the protection of public legal interests.
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Košičiarová, Soňa. "Zákaz zneužitia veřejných subjektívnych prav a slobôd". AUC IURIDICA 67, nr 4 (7.12.2021): 77–91. http://dx.doi.org/10.14712/23366478.2021.39.
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The aim of the article is to point out the growing phenomenon of the abuse of public subjective rights and freedoms by private persons in public administration. It analyzes the legal nature of the abuse of rights and freedoms, and the competence of public administration authorities. The author mentions some of the most well-known cases decided by the Constitutional Court and administrative courts in the Czech Republic and Slovakia.
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Kosik, Jan. "Prawa rzeczowe ograniczone w kodeksie cywilnym i w artykule 24 prawa prywatnego międzynarodowego". Studia Prawnicze / The Legal Studies, nr 26-27 (30.04.2023): 58–68. http://dx.doi.org/10.37232/sp.1970.26-27.6.
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Autor artykułu przedstawia zasadę lex rei sitae w kontekście praw rzeczowych ograniczonych. Swoje rozważania opiera na regulacjach zawartych w Kodeksie Cywilnym oraz ustawie o prawie prywatnym międzynarodowym z 1965 roku. W kręgu zainteresowań autora znajdują się instytucje: użytkowania, służebności gruntowej, osobistej, zastawu, spółdzielczego prawa do lokalu, hipoteki oraz użytkowania wieczystego. Autor przedstawia różne koncepcje dotyczące „położenia” praw podmiotowych w świetle zasady ogólnej zawartej w art. 24 ustawy o prawie prywatnym międzynarodowym. The author of this article presents the principle of lex rei sitae in the context of limited rights in rem. He bases his considerations on the regulations contained in the Civil Code and the Private International Law Act of 1965. The author's interests include the institutions of usufruct, easement, personal servitude, pledge, cooperative right to premises, mortgage and perpetual usufruct. The author presents various concepts concerning the 'location' of subjective rights in the light of the general principle contained in Article 24 of the Private International Law Act.
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Mokhov, Artem Yu, i Semyon P. Malyshkin. "INSTITUTION OF PUBLIC LAND SERVITUDE IN THE CONTEXT OF THE THEORY OF REFLECTIVE ACTION OF LAW". Vestnik of Kostroma State University, nr 3 (2020): 208–12. http://dx.doi.org/10.34216/1998-0817-2020-26-3-208-212.
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The main provisions of the theory of reflective action of law are considered in the article. The manifestation of law reflexes in modern legal regulation is analysed on the example of land relations. Land, as the basis of life and activity of peoples who live in the territory of the Russian Federation, acts not only as an economic good and a natural resource, but also as the object of a number of property and personal non-property relations connected with them. The institution of public land easement is considered by the authors to be a reflex of law, that is, the restriction of the subjective right of a particular owner of a land plot in the interests of society, the state. The issue of the limitation of the right of land private ownership is raised on the basis of an analysis of legislation and judicial practice. The problem of the limits of the action of public easements simultaneously aimed not only at the normal exercise of all property rights by the land plot owner, but also at preserving the favourable state of the environment, at ensuring the subjective rights of other participants in land legal relations, at the implementation of a single land policy of the state indicated in the context of the development of land legislation of the Russian Federation. The conclusion, that the use of the right reflex construction has a beneficial effect on strengthening legal certainty in the face of imbalances in private and public interests in land law, is made.
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Enqvist, Lena, i Yana Litins'ka. "Employee Health Data in European Law". Nordic Journal of European Law 5, nr 1 (31.08.2022): 40–66. http://dx.doi.org/10.36969/njel.v5i1.24498.
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While there are many feasible reasons for employers to process employee health data, the protection of such data is a fundamental issue for ensuring employee rights to privacy in the workplace. The sharing of health data within workplaces can lead to various consequences, such as losing a sense of privacy, stigmatisation, job insecurity and social dumping. At the European level, the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and EU General Data Protection Regulation (GDPR)–two interconnected instruments–offer the most enforceable protection of employee health data. The article analyses the limits of employees’ right to privacy regarding health data, as delineated by the ECHR and GDPR. Using three fictive examples, we illustrate how the level of protection differs in these two instruments. In particular, we show that the protection of health data offered by the GDPR is seen as an objective act of processing at the time it is carried out, where the actual impact caused by the processing on private life is not considered. On the contrary, the ECHR’s applicability and offered level of protection in the employment context depend on subjective factors, such as the consequences of sharing the data.
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Kress, Vyacheslav. "The Issue of the Nature of Limited Property Rights and the Boundaries of the “Expected Right”". Journal of Russian Law 27, nr 12 (2023): 97. http://dx.doi.org/10.61205/jrp.2023.141.
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The purpose of the study is to determine the ratio of the powers of persons regarding objects of civil rights with limited property rights. The article touches upon the following issues: the nature of the list of real rights; the possibility of characterizing legal relations as real in the absence of an indication of them as such in the law (i. e., the scope of the concept of real rights); the ratio of “expected rights” with real rights. The research uses general scientific methods (analysis and synthesis), as well as private scientific methods (comparative legal, formal legal). The article analyzes the practice of state arbitration courts on the main problematic issues of property law, the practice of the Supreme Court of the Russian Federation, as well as doctrinal sources. The temporary nature of the expected right is emphasized: its transformation into a property right or other limited proprietary right is legally inevitable. The author asks about the place of the category of expected rights in the system of absolute and relative legal relations. In his opinion, the introduction into Russian law of the institute of preliminary registration of the right of expectation (or its equivalent) de jure will endow its owner — who is not yet the owner of the expected subjective right — with a legally protected status.
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Đundić, Petar. "European Court of Human Rights, Article 8 of the European Convention on Human Rights and recognition of same-sex marriages concluded abroad". Zbornik radova Pravnog fakulteta, Novi Sad 57, nr 4 (2023): 1093–119. http://dx.doi.org/10.5937/zrpfns57-48218.
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The requirements put before the courts by sources that regulate human rights significantly affect functioning of the mechanism of Private International Law. This statement particularly applies to situations in which it is necessary to give effect to the change of personal and family status acquired abroad. The paper refers to the problem of recognition of same-sex marriages concluded abroad. It analyzes the most important decisions of the European Court of Human Rights regarding the obligation of the member states of the Council of Europe to provide legal protection and recognition to same-sex unions, in accordance with Article 8 of the European Convention on Human Rights (protection of private and family life). The analysis shows that today it is undoubtedly clear that these states have a positive obligation to establish an adequate legal framework that would allow partners in a same-sex union to enjoy certain subjective rights. The obligation in question also extends to same-sex marriages concluded abroad and, when it comes to Serbia, requires immediate legislative intervention.
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Cłapińska, Katarzyna. "Prywatność vs. świat wirtualny: ochrona praw jednostki w dobie Internetu". Studia Prawa Publicznego, (3) 43 (16.10.2023): 153–65. http://dx.doi.org/10.14746/spp.2023.3.43.6.
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The article aims to indicate the most important issues facing an individual wishing to protect his or her privacy on the Internet. It also describes the evolution of the concept of the right to privacy, which over the years has become one of the most important subjective rights reflected both in the Polish Constitution and in the legal acts of the Council of Europe and the European Union. The text also demonstrates the approach to the issue of the right to privacy taken by both the Polish constitutional and international judiciary. The European Court of Human Rights in Strasbourg, in the cases of Dupate v. Latvia and Brother Watch and others v. United Kingdom, dealt with both the publication of photographs of a public figure taken surreptitiously in a private situation and mass surveillance. The Court of Justice of the European Union in Luxembourg, in its judgments, has often referred to the issue of the protection of telecommunications data, including the question of access by state services to such data (H.K case) and the rights and obligations created by Articles 7 and 8 of the Charter (Kärntner Landesregierung and Digital Rights Ireland Ltd case). The European Union authorities, reacting to the increasingly widespread problem of data flows on the Internet, decided to enact the General Data Protection Regulation (GDPR). The article describes the most important objectives and tasks to be fulfilled by this legal act. In addition, the main problems associated with the use of new technologies such as cybercrimes, cyber surveillance, data theft, as well as cryptojacking and the functioning of APTs (Advanced Persistent Threat), i.e. skilled hacking groups, are also indicated.
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Selmani, Bashkim. "New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law". European Journal of Interdisciplinary Studies 1, nr 3 (30.12.2015): 142. http://dx.doi.org/10.26417/ejis.v1i3.p142-151.
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This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.
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Selmani, Bashkim. "New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law". European Journal of Interdisciplinary Studies 3, nr 1 (30.12.2015): 142. http://dx.doi.org/10.26417/ejis.v3i1.p142-151.
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This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.
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Kirillova, L. S. "Guarantees of the Employer’s Rights: Exploring the Problem". Uchenye Zapiski Kazanskogo Universiteta. Seriya Gumanitarnye Nauki 164, nr 4 (2022): 18–24. http://dx.doi.org/10.26907/2541-7738.2022.4.18-24.
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This article considers the problem of identifying guarantees of the rights of the employer as a separate category. In its normative definition, the concept of guarantee (Art. 164 of the Labor Code of the Russian Federation) has been lacking any reference to the employer, but this does not mean that the employer’s powers can be exercised without compliance with the legal resources and means. Here, the employee’s responsibilities are dubbed as a group of guarantees of the rights of the employer because the exercise of a subjective right demands a corresponding obligation. Another important guarantee of the rights of the employer is the principle of prohibiting any abuse of the right, which helps to quell “labor extremism” by employees. In the context of legal guarantees, ways for the employer to exercise their rights are discussed. The results obtained show that in cases where the employer is not endowed with the freedom to choose the method for exercising the right, their interests are ensured at the expense of the freedom of behavior within this method. In turn, the freedom of behavior within the method is also secured by legal guarantees, i.e., by the corresponding responsibilities of the employee and by private guarantees, often of a procedural nature.
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Berestova, Iryna E., Olha V. Verenkiotova, Natalii Serbina i Svitlana V. Seminoh. "Public Interest in Private Law Relations of Transition Democracies: A Modern View from the Standpoint of a Systemic Approach". International Journal of Criminology and Sociology 10 (31.12.2020): 430–39. http://dx.doi.org/10.6000/1929-4409.2021.10.51.
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The study investigates the legal nature of the category of "public interest" in private law relations from the standpoint of a systematic scientific approach to law in the countries of post-Soviet society in the modern period. The study states the affiliation of public and private law to the means of achieving the purpose of the law: the recognition of a person, their rights and freedoms as the highest social value of the state. The unsuitability of the theory of the branch belonging to public law has been proved using the universal criterion of separation: the use of the category of "public interest" in the development of the subject and method of the branch in private legal relations. It is concluded that the division of law into private and public is inconsistent in terms of their differentiation of the criterion "method of protecting the rights of their participants", which is activated only after the violation of the latter, while subjective law also exists before the violation, during the existence of regulatory legal relations, and it is the subjective law that forms the affiliation to the relevant industry. During the study, signs of public interest as a legal category were formed. In addition, modern features of public interest as a legal category were outlined from the standpoint of a systematic approach: the general nature of public interests; connectedness with large-scale involvement; recognition by the state and the provision of the law; the possibility of their implementation through measures of state power.
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Уткин, Владимир Александрович. "Penal rights of convicted persons". Vestnik Kuzbasskogo instituta, nr 2(43) (22.06.2020): 134–42. http://dx.doi.org/10.53993/2078-3914/2020/2(43)/134-142.
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В статье рассматриваются отдельные специальные права осужденных к лишению свободы, не имеющие прямых конституционных оснований. Это права на бесплатное материально-бытовое обеспечение, личную безопасность, психологическую помощь и вежливое обращение. По мнению автора, они представляют собой особую группу субъективных пенитенциарных прав, вытекающих из факта государственной изоляции граждан в специальных учреждениях и определяемых принципом гуманизма. Значительное внимание этим вопросам уделяется и в общепризнанных международных актах об обращении с заключенными. По мнению автора, количество и содержание таких специальных пенитенциарных прав имеет тенденцию к расширению. This article is concerned with particular specific rights of convicted to imprisonment, which don’t have direct constitutional foundation. These are rights to free material welfare service, private security, psychological aid and polite treatment. In the author’s opinion, they present a special group of subjective penal rights, resulting the fact of official isolation of citizens in special institutions and defined by the principle of humanity. Considerable attention to these problems is also paid in generally acknowledged international acts on treatment of convicted persons. According to the author’s opinion number and content of these special penal rights have tendency to enlarge.
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Straumann, Benjamin. "Natural Rights and Roman Law in Hugo Grotius's Theses LVI, De iure praedae and Defensio capitis quinti maris liberi". Grotiana 26, nr 1 (2007): 341–65. http://dx.doi.org/10.1163/187607508x366454.
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AbstractRoman property law and Roman contract law as well as the property centered Roman ethics put forth by Cicero in several of his works were the traditions Grotius drew upon in developing his natural rights system. While both the medieval just war tradition and Grotius's immediate political context deserve scholarly attention and constitute important influences on Grotius's natural law tenets, it is a Roman tradition of subjective legal remedies and of just war which lays claim to a foundational role with regard to his conception of subjective natural rights. Grotius made use of Roman law and Roman ethics in order to submit a normative case for a rights-based just war in the East Indies. His conception of a law of nature was originally conceived to apply a theory of compensatory justice to the high seas of Southeast Asia, envisaged as a natural state lacking political authority. Eventually, however, this argument was to reveal its anti-absolutist implications, and contributed—by virtue of its applicability to individuals, private entities and commonwealths alike—to the emergence of a rights-based constitutionalism. This article discusses Grotius's early treatise De iure praedae commentarius (1604-1606) and its offshoot Mare liberum, which already contained an inchoate version of subjective natural rights, as well as the elaborate natural rights doctrine which can be found in Grotius's early Theses LVI and in the Defensio capitis quinti maris liberi, a defense of the fifth chapter of Mare liberum, written around 1615 and directed against the Scottish jurist William Welwod's attack on Mare liberum.
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Barnert, Elena, i Natascha Doll. "Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State". German Law Journal 4, nr 3 (1.03.2003): 277–80. http://dx.doi.org/10.1017/s2071832200015959.
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On January 15th 1958, the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) pronounced a judgement deemed to be a prime example for the Court's early jurisprudence concerning the scope of fundamental rights in Germany: The Court's famous “Lüth”-decision resulted from a constitutional complaint brought by Erich Lüth, former member of the Hamburg senate.* In the early 1950s, Lüth had called upon film distributors and the public to boycott Veit Harlan's tearjerker movie Unsterbliche Geliebte (Immortal Beloved). Cause for his appeal was Harlan's prominent role in the Nazi propaganda machinery as Goebbels' protégé and director of the movie Jud Süss in 1940, which counts as one of the worst anti-semitic films released during the Nazi regime. After having lost several civil lawsuits, Lüth asserted the violation of constitutional rights. Over six years later, he was to be proved correct: The Federal Constitutional Court ruled that Lüth's complaint was covered by the right to freedom of speech guaranteed in Art. 5 of the German Basic Law (Grundgesetz). The Court stated that the fundamental rights as laid down in the Grundgesetz are not only of importance as subjective rights protecting the individual against state intrusions on the private sphere. As a whole they also unfold an objective dimension in representing society's crucial values. Therefore, they govern the entire legal order - including civil law and private law relations! This was indeed understood as a staggering conclusion with which the Court went far beyond the issue at stake. Since Lüth, German legal discourse characterizes this phenomenon as the third-party or horizontal effect of basic rights (Drittwirkung).
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Kamińska, Renata. "Nabywanie nieruchomości na potrzeby rozwoju miast z zastosowaniem procedury wywłaszczeniowej w czasach Republiki Rzymskiej". Acta Iuridica Resoviensia 38, nr 3 (wrzesień 2022): 120–30. http://dx.doi.org/10.15584/actaires.2022.3.8.
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Expropriation in ancient Rome was an institution of public law and, at the same time, a manifestation of the sovereign interference of the state in the sphere of subjective rights of an individual. It led to the removal of the most important of the most important rights in rem, ie the ownership of real estate, from a private person. However, this could only happen after certain conditions were met. First, the expropriation had to be justified by the public aim which could only be achieved thanks to the acquired real estate. Second, compensation was paid to the expropriated.
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Van Der Sloot, Bart. "The Quality of Life: Protecting Non-personal Interests and Non-personal Data in the Age of Big Data". European Review of Private Law 29, Issue 5 (1.10.2021): 757–84. http://dx.doi.org/10.54648/erpl2021040.
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Under the current legal paradigm, the rights to privacy and data protection provide natural persons with subjective rights to protect their private interests, such as related to human dignity, individual autonomy and personal freedom. In principle, when data processing is based on non-personal or aggregated data or when such data processes have an impact on societal, rather than individual interests, citizens cannot rely on these rights. Although this legal paradigm has worked well for decades, it is increasingly put under pressure because Big Data processes are typically based indiscriminate rather than targeted data collection, because the high volumes of data are processed on an aggregated rather than a personal level and because the policies and decisions based on the statistical correlations found through algorithmic analytics are mostly addressed at large groups or society as a whole rather than specific individuals. This means that large parts of the data-driven environment are currently left unregulated and that individuals are often unable to rely on their fundamental rights when addressing the more systemic effects of Big Data processes. This article will discuss how this tension might be relieved by turning to the notion ‘quality of life’, which has the potential of becoming the new standard for the European Court of Human Rights (ECtHR) when dealing with privacy related cases.
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Trifonov, S. "DEFINITION AND CONTENT OF THE CONSTITUTIONAL RIGHT TO HOUSING". Scientific Notes of V. I. Vernadsky Crimean Federal University. Juridical science 7, nr 4 (20.02.2023): 82–88. http://dx.doi.org/10.29039/2413-1733-2021-7-4-82-88.
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The article is devoted to the study of the constitutional right to housing and the analysis of the specific content of this subjective right.
Social rights and freedoms are one of the foundations of a democratic, legal and, especially, social state (Articles 1, 7 of the Constitution of the Russian Federation). One of the most important social rights is the right to housing. The need for housing is one of the primary human needs. Today, housing performs the functions of a place of rest, home life, study, work, communication, consumption of material and spiritual benefits, providing comfortable conditions for a healthy existence and protection from cold, heat, other conditions, and the like.
It is not surprising that the right to housing is considered by the international community as one of the elements of the right to a decent standard of living (Article 25 of the Universal Declaration of Human Rights, Article 11 of the International Covenant on Economic, Social and Cultural Rights). At the same time, in the Russian constitutional law, the right to housing is positioned as an independent constitutional right.
After analyzing the normative prescriptions of the Constitution of the Russian Federation, it becomes clear that the right of citizens to housing should be attributed to socio-economic rights and freedoms. The right of citizens to housing corresponds with such constitutional rights and freedoms as: the right to inviolability of the home, the right to private property, the right to free choice of place of stay and residence, and the right to personal dignity. In modern scientific doctrine, the right to housing is a constitutionally guaranteed opportunity for a citizen to satisfy the need for housing in one of the ways determined by law.
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Minakova, A. I. "Legal Protection of Corporate Identity: Russian and Foreign Experience". Actual Problems of Russian Law 19, nr 9 (17.08.2024): 68–81. http://dx.doi.org/10.17803/1994-1471.2024.166.9.068-081.
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The paper examines the concept and essence of corporate identity as a legal phenomenon. The author analyzes foreign approaches to the legal protection of corporate identity. The conclusion is made about the proximity of the Russian institute of corporate identity to the European one, which involves providing legal protection to corporate identity either as an object of intellectual property or within the framework of competition law. In the field of unfair competition, corporate identity is a quasi-object of legal protection, the subjective right to which does not arise. This determines the complexity of ensuring the protection of a private interest. The author examines problematic aspects of establishing a violation of competition protection legislation related to the creation of a confusion, as well as proving losses associated with it. It is concluded that this legal institution is less effective than traditional legal regimes of recognized intellectual property rights, which can be explained by the focus of competition protection legislation on protecting public rather than private interests.
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Popov, V. V., P. I. Moskalenko i S. V. Cherkasova. "Human rights to Internet access and its safe use". Vestnik Universiteta 1, nr 7 (30.08.2022): 60–65. http://dx.doi.org/10.26425/1816-4277-2022-7-60-65.
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This work is devoted to the analysis of the right to access the Internet and its safe use. The main purpose of the article is to consider the right to access the Internet and to a favorable social environment, as well as the introduction of these rights into the legislation of the Russian Federation. The authors analyzed the legislation of various states and international organizations in the field of free Internet access, considered the impact of a favorable Internet environment on the human psyche. The object of the study is the subjective human rights to access the Internet and to use the Internet safely. The subject of the study is the legal norms of the Russian Federation and foreign states, the norms of international law. The authors consider the role of a favorable environment on the Internet for minors, describe the main factors of restrictions on access to the Internet for teenagers. The methodological and theoretical basis of the research are private and general scientific approaches to the study of this topic. Formal logical and comparative methods were used, as well as methods of structural analysis. During the study, conclusions about the main differences in approaches to digital rights in the Russian Federation, foreign legal systems, and international law were drawn.
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Makovii, Viktor, Andrii Kuchuk i Liudmyla Filianina. "MODERNISATION OF THE LEGAL REGULATION OF TEMPORARY RESTRICTIONS ON THE EXERCISE OF PRIVATE RIGHTS IN UKRAINE ON THE WAY TO ECONOMIC INTEGRATION". Baltic Journal of Economic Studies 9, nr 1 (31.03.2023): 124–34. http://dx.doi.org/10.30525/2256-0742/2023-9-1-124-134.
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The subject of the study is the theoretical and applied aspects of legal regulation of certain economic relations, in particular, the temporal restrictions on the implementation of private rights in Ukraine. Methodology. General scientific and special legal methods were used in the research process. Quantitative and qualitative parameters of organisational, legal and economic measures aimed at modernising the legal regulation of time limits on the exercise of private rights in Ukraine were determined with the help of the analysis. The synthesis ensured the clarification of the common features of economic and legal phenomena, which is a precondition for the modernisation of the legal regulation of time limits for the exercise of private rights in Ukraine. The comparative legal method allowed to identify common and specific features of the normative regulation of time limits on the exercise of private rights in different states (taking into account legal and economic features). The formal-legal method made it possible to draw conclusions on the effectiveness of the normative fixing of time limits on the exercise of private rights in the civil legislation of Ukraine and to make relevant proposals for changes in the civil legislation. The purpose of the study is to determine the state of legal regulation of time limitations on the exercise of private rights in Ukraine and to determine the prospects of its modernisation for the sake of economic integration (through the study of legal and economic aspects of the specified phenomenon). The results of the study showed that the state of legal regulation of time limits on the implementation of private rights in Ukraine on the way to economic integration creates the conditions for its modernisation within the framework of general and special legal regulations. Conclusion. The basis of the civilised development of the modern world community is the establishment of civilised rules for the circulation of relevant property goods. From this point of view, among the social relations that are the subject of civil law regulation, the most important are property rights and non-property rights related to them (which have no economic significance, but by their very nature play an important role in ensuring civil circulation). The Civil Code of any state is a basic legislative act regulating a significant part of social relations. The modernisation of temporal categories in various institutions of civil law can be characterised from the standpoint of the concept of updating the Civil Code of Ukraine, as well as from the study of the state and the need for improvement of other legal structures, in particular, from the standpoint of international jurisprudence. The temporal characteristics of the law are characterised through the prism of the limitation of the subjective right to intellectual property, which is generally consistent with the normative prescriptions contained in intellectual property law as a subdivision of civil law. The problematic aspects of the unification of intellectual property relations in the general provisions of the Civil Code of Ukraine and special legislation are identified, and proposals for the legal regulation of such relations are made in the light of international legislation, judicial practice and legal doctrine.
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Kurochkin, A. V. "Correlation between the Methods of Legal Regulation in the Political Party Legislation of Russia". Uchenye Zapiski Kazanskogo Universiteta Seriya Gumanitarnye Nauki 166, nr 3 (18.09.2024): 69–80. http://dx.doi.org/10.26907/2541-7738.2024.3.69-80.
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The legal methods for regulating political party relations in Russia were analyzed using formal logical, systematic, institutional, and hermeneutic approaches. The Russian constitutional law employs the mixed method, which underpins the constitutionalization of political parties. In contrast, the prevailing imperative method emphasizes the administrative and legal foundations of the standards that define the rights and obligations of political parties. In turn, the interplay of the imperative and mixed methods in the Russian political party law has resulted in covert obligations for political parties, which are also their subjective rights. However, not all rights of political parties align with the concept of subjective rights as developed in constitutional and legal doctrine. The results obtained suggest that the current constitutional legislation in Russia is abstract, impeding a clear understanding of the rights and obligations of political parties. By exploring the doctrinal approaches, the strategies for recognizing the methods of legal regulation were singled out, depending on the interests protected by the analyzed legal standards. Thus, the specific methods of private and public law were identified, which, with the institution of political parties as an example, explain the complex nature of most legal standards. Taken together, these standards outline a complex variety of legal means to influence political party relations. Therefore, being crosssectoral, the political party standards facilitate the resolution of conflicts in law enforcement that arise in constitutional, party, electoral, and administrative legislation.
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Schepel, Harm. "The Enforcement of EC Law in Contractual Relations: Case Studies in How Not to ’Constitutionalize’ Private Law". European Review of Private Law 12, Issue 5 (1.10.2004): 661–73. http://dx.doi.org/10.54648/erpl2004038.
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Abstract: In two very different contexts, the ECJ has effectively held that national private law is to be set aside where it impedes the effectiveness of certain EC law values. This article analyses these instances in order to try and make sense of the concept of the European ?constitutionalization? of private law. It argues, on the one hand, that EC law values should only be imposed upon national private law where they can be translated into subjective rights and, on the other, that the application of EC law provisions on private parties should be limited to cases where these can reasonably be said to carry responsibility for the implementation of those provisions. To enforce EC law in contractual relations beyond these limits not only leads to fragmentation and uncertainty but also, it is submitted, defeats the purpose of enhancing the effectiveness of EC law.
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Sannikova, Larisa. "Consequences of convergence of the private sector and public law in the field of protection of subjective rights". Gosudarstvo i pravo, nr 4 (2020): 58. http://dx.doi.org/10.31857/s013207690009235-0.
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