Suchergebnisse

Статья посвящена рассмотрению вопросов, связанных с существенными изменениями в российском законодательстве о залоге как одном из инструментов гражданско-правовых отношений, который призван упрочить позицию залогодержателя, гарантировав его преимущественное право кредитора и возможность реального удовлетворения его требований. В статье анализируется правоприменительная практика, заполнившая пробелы законодательства, расставившая новые акценты между интересами кредитора-залогодержателя и должника-залогодателя. ; The author considers the questions related to the significant changes in the Russian legislation on mortgage as one of civil-legal relations instrument, which aims to strengthen a mortgagee's position guaranteeing his preemptive right of a creditor and the possibility of the real satisfaction of his claims; and analyzes the law enforcement practice that filled in the gaps of the legislation, and placed new emphases between the interests of a creditor-mortgagee and a debtor-mortgagor.

This study represents a relatively complex treatment of indirect claim in its procedural sense and seeks to highlight those concerns that may waken the formulation of such actions in court. For an introductory approach we propose one of the definitions of civil action in general, as a genre concept in which is framed the oblique action. Keywords: civil action, oblique action, indirect claim, creditor, debtor ; This study represents a relatively complex treatment of indirect claim in its procedural sense and seeks to highlight those concerns that may waken the formulation of such actions in court. For an introductory approach we propose one of the definitions of civil action in general, as a genre concept in which is framed the oblique action. The civil action represents that legal way of protection by judicial restraint of civil rights violated or interests protected by law by which a legal entity, person or entity, require to the competent judicial authority to recognize a pre-existing subjective right or provision of new legal cases or termination of the obstacles puted in the exercise of his right by another person, or payment of compensation when the establishment and enforcement of such obligations is necessary in order to achieve that right. Starting from these conceptual premises is follow to be treated oblique action, since it can not be conceived outside the genre and is not to be an exception from what is the legislation of the Republic of Moldova provides. Keywords: civil action, oblique action, indirect claim, creditor, debtor.

The objective of this graduating thesis for a master degree was to analyze and evaluate the provisions of the Insolvency Regulation and national laws of member states assuring the equality of creditors and to disclose the problematic aspects of this issue, to present the legal evaluation of topical issues as well as the theoretical and practical methods of a solution based on the legal acts of the European Union and member states, the practice and doctrine formed by courts. In the first part of this thesis, definitions and concepts relevant to the theme concerned were studied. First of all, the "insolvency" definition enacted by Council Regulation (EC) 1346/2000 on Insolvency Proceedings and the national law systems of member states was analyzed. The author noted that the definition of insolvency lawsuits. which for the time being is enacted in the Insolvency Regulation, is out-of-date and negatively impacts the assurance of equality of creditors. In addition to this, in this part, the definitions of "the creditor" and "the equality of creditors or the parri passu (par conditio creditorum) principle" were presented and analyzed. In the second part of the graduation thesis for a master degree, the assurance of equality of creditors on the scales of the European Union and the national law of member states was analyzed, the gaps and tendencies of regulation were considered. Attention was paid to the assurance of the principle of equality of creditors from the moment of initiation of an insolvency proceeding, which means from the moment of lodging claims, the examination and acknowledgement thereof, up to the moment of establishing the priorities of claims as these initial stages have crucial importance for the further execution of the insolvency proceeding and directly influence the satisfaction of claims of creditors in the insolvency proceeding. In the thesis, the conclusion was made that large differences in laws between member states do not assure the equality of creditors in joint insolvency lawsuits. Furthermore, the breach of equality of creditors may form for member states preconditions not to acknowledge the insolvency lawsuit commenced in any other member state or not to execute such a judgement because the establishment of priorities of creditors may conflict with the public order and key principles of any member state or human constitutional rights and freedoms. As the result, the efficient and operative consideration of joint insolvency lawsuits is not guaranteed, and the goals of the Insolvency Regulation are not achieved. Therefore, in the opinion of the author, in the nearest future, the European Union regulation regarding these issues should be revised and some areas should be harmonized.

The objective of this graduating thesis for a master degree was to analyze and evaluate the provisions of the Insolvency Regulation and national laws of member states assuring the equality of creditors and to disclose the problematic aspects of this issue, to present the legal evaluation of topical issues as well as the theoretical and practical methods of a solution based on the legal acts of the European Union and member states, the practice and doctrine formed by courts. In the first part of this thesis, definitions and concepts relevant to the theme concerned were studied. First of all, the "insolvency" definition enacted by Council Regulation (EC) 1346/2000 on Insolvency Proceedings and the national law systems of member states was analyzed. The author noted that the definition of insolvency lawsuits. which for the time being is enacted in the Insolvency Regulation, is out-of-date and negatively impacts the assurance of equality of creditors. In addition to this, in this part, the definitions of "the creditor" and "the equality of creditors or the parri passu (par conditio creditorum) principle" were presented and analyzed. In the second part of the graduation thesis for a master degree, the assurance of equality of creditors on the scales of the European Union and the national law of member states was analyzed, the gaps and tendencies of regulation were considered. Attention was paid to the assurance of the principle of equality of creditors from the moment of initiation of an insolvency proceeding, which means from the moment of lodging claims, the examination and acknowledgement thereof, up to the moment of establishing the priorities of claims as these initial stages have crucial importance for the further execution of the insolvency proceeding and directly influence the satisfaction of claims of creditors in the insolvency proceeding. In the thesis, the conclusion was made that large differences in laws between member states do not assure the equality of creditors in joint insolvency lawsuits. Furthermore, the breach of equality of creditors may form for member states preconditions not to acknowledge the insolvency lawsuit commenced in any other member state or not to execute such a judgement because the establishment of priorities of creditors may conflict with the public order and key principles of any member state or human constitutional rights and freedoms. As the result, the efficient and operative consideration of joint insolvency lawsuits is not guaranteed, and the goals of the Insolvency Regulation are not achieved. Therefore, in the opinion of the author, in the nearest future, the European Union regulation regarding these issues should be revised and some areas should be harmonized.

Abstract: The doctrine of subrogation is a creature of English equity jurisprudence. It permits a surety to obtain the creditor's rights (securities, claims, and remedies) against the principal debtor for recourse purposes. The guarantor derives his position vis-à-vis the principal from the creditor. Why is subrogation granted? There are different answers. According to the traditional view in the English case law, the purpose of subrogation is that equity will correct a decision of the creditor who of his debtors to exact payment from. If the surety as the party liable secondarily is forced to pay, equity will allocate the creditor's rights against the party primarily liable to him. Derivative recourse is the technical means of correction. Subsequent correction of the result of the inequitable choice of the creditor is the function of subrogation. Lately, it has been argued that subrogation is a remedy directed against the unjust enrichment of the principal debtor gained at the guarantor's expense. Derivative recourse is also known in civil law jurisdictions. A comparative survey shows a very peculiar phenomenon: The two prominent English explanations do not find an equivalent in the civil law, and the explanations in civil law jurisdictions do not find an equivalent in English law either. This discrepancy is good enough a reason to have a closer look at the doctrine of subrogation and its province. The article critically discusses the different arguments advanced. As a result of the analytical and comparative discussion, the article determines the justification and the province of the guarantor's right to derivative recourse. The article refutes the restitutionary thesis on subrogation. Its stress on the relationship between guarantor and principal debtor is incompatible with the fact that the case law sees the basis of subrogation in the suretyship relationship. The rights afforded to the surety by subrogation are all directed against the creditor. The creditor comes under an obligation to the guarantor. This is overlooked by the enrichment theorists. Several important details of the law of subrogation cannot be explained in terms of restitution (e.g., the full payment rule, the rule of discharge through loss of securities, and right to pay off and sue). A theory that does not include these rules is not capable of giving a proper qualification of derivative recourse. Only a functional analysis of subrogation renders determination of its province possible. Derivative recourse gives easier and more effective recourse to a guarantor, enabling him to get indemnification for his loss. It supports a contractual claim to reimbursement. Derivative recourse is based on equitable considerations, taking into account the interests of the involved persons (principal, creditor, and surety). By making judgments available, the efficacy of the legal system is supported. The facilitating of recourse is beneficial to the guarantor, without prejudicing the interests of the creditor. The guarantee is upheld as an effective personal security, by withholding the principal an incentive not to pay himself. Neither the principal nor his other creditors are affected. The subsidiarity of the guarantee is restored. Equity corrects the creditor's decision to burden the subsidiary debtor and thus orders the ranks of liability.

В статье исследуются основания перехода прав кредитора к другому лицу. Обосновывается, что решение суда не относится к числу таковых. Анализируется терминология, используемая в законодательстве и цивилистической литературе для обозначения оснований перемены кредитора в обязательстве. Автор определяет экономические и правовые критерии разграничения оснований перехода прав кредитора к другому лицу, практические последствия такого разграничения. ; The article examines the grounds of transfer creditor's rights to another person. The court's decision is not among them. Examines the terminology used in legislation and the civil law literature to refer to the grounds for the change of the creditor. The author defines the economic and legal criteria for distinguishing between grounds of transfer creditor's rights to another person, the practical implications of the distinction.

1 sheet ([1] p.). ; Imprint from STC (2nd ed.). ; Imperfect: faded. ; Petition for payment of debts owed the petitioners. ; Reproduction of original in: Society of Antiquaries.

The author of the article has defined specific features of property rights succession encumbered by real estate mortgage. It has been substantiated that inheritance relations significantly affect real estate mortgage obligation, which is, first of all, manifested in the narrowing of legal opportunities to apply the general procedure of vindication on real estate mortgage's subject matter, and secondly, in additional grounds for terminating real estate mortgage not provided by the special law. It has been proved that real estate mortgage is terminated in case of the creditor's non-observance of the application terms to the debtor's lawful heirs under the main obligation established in the Art. 1281 of the Civil Code of Ukraine. Termination of bail relations in the field of inheritance law under the rules of Part 1 of the Art. 523 of the Civil Code of Ukraine is associated with a set of the following conditions: the death of the debtor under the main obligation secured by real estate mortgage; acceptance of the assets by the debtor's lawful heir in the manner and terms specified by civil law; the property guarantor did not agree to ensure the fulfillment of the obligation by the new debtor – the lawful heir; the property guarantor is not the debtor's lawful heir. It has been argued that the specified features do not indicate about narrowing the legal opportunities of the creditor and do not violate the balance of interests of the mortgage holder and the debtor's lawful heirs. The law enshrines sufficient terms for the creditor to file claims against the debtor's lawful heirs. Such terms are calculated not from the time of commencement of succession, such as the term for acceptance of an inheritance, but from the date when the lawful heir receives the certificate on inheritance right for all or part of the inherited property, regardless of the due date or from the date when the creditor becomes privy to the acceptance of an inheritance or about the receipt of the certificate on inheritance right by the heir. Besides, the creditor may directly seek to the lawful heirs who accepted the inheritance, and to the notary (official of the local self-government agency, consul). Moreover, if the heir who accepted the inheritance has no certificate on inheritance right, it does not deprive the ancestor's creditor of the opportunity to apply to the lawful heir, who delays in obtaining the certificate, with claims to levy of execution on inherited property, which is the subject matter of real estate mortgage.

AbstractThe recent reforms of the French Civil Code have also regulated remedies for breach of contract, by introducing price reduction as a general instrument that can be applied to all contractual types.
Firstly, the article analyses the harmonisation projects and regulations on which the French reform claims to be based, for the purposes of verifying whether the French legal framework only reproduces solutions already tested or whether it is innovative with respect to such models. This study highlights the introduction of innovative solutions through which price reduction is achieved. Whilst price reduction is usually ordered by the court, following a claim by the non-breaching creditor, under the French model the price reduction remedy does not require the court's intervention as it can be performed directly by the creditor: this is an automatic and not a court-based remedy.
Secondly, the article also analyses whether the same outcome that is obtained through the automatic price reduction can also be achieved through the use of other legal instruments. This article focuses on a comparative law analysis with the common law system with respect to compensation for damages under English law. With respect to the civil law models, the article examines the Italian model in which parties generally resort to actions for compensation and the exception of partial breach.

If someone lends money to another person, he trusts that he will get his money back. Particularly in the context of commercial relationships, there is a need for more security. Such security can be achieved by a so-called security right on someone's property. If the debtor does not pay back the borrowed money, the secured creditor can use his security right to sell the property. From the proceeds, he may recover his claim. The most common example of such a security right is the mortgage on a house. Another security right is the right of pledge. Movable goods and claims can be pledged. In former days, a good could only be pledged if the good was actually handed over to the creditor. If the debtor did pay his loan, he got his property back. One could think of the pawnshop. Since 1992, the Dutch Civil Code offers the possibility to pledge a good, while the debtor stays in possession. This means that the debtor can then continue to use the good, for example if the pledged good is a machine that is necessary for the business operations of the debtor. This PhD thesis analyzes the consequences such invisible security right leads to. Imagine the situation that a third person buys the pledged good from the debtor. Or that a third party gives a loan to the debtor because he thinks that there are enough means of recovery against the debtor's property. Should there be stricter requirements for invisible security rights? Is the insolvency administrator obliged to give the pledged machine, which is necessary for the business operations, back to the creditor? These and other questions are answered in the PhD thesis. Additionally, solutions are developed to address the arising problems.

Professor Jacoby's description of medical-related financial distress as a pervasive problem is not merely a throwaway line but rather a claim that raises important, even philosophical, questions. And her goal of mak[ing] meaningful inroads into the problems caused by structural limitations of health care finance commits her to a scholarly agenda much broader than the empirical and doctrinal aspects of debtor-creditor and health law. It is an agenda that confronts grand issues of political philosophy and economics.

Like most of the central legal questions in the field of civil law, the question when a debt becomes time-barred is not harmonized within the EU, but is governed by rules at national level. This applies normally even in situations where the grounds of the claim itself are based on EU legislation. In this situation the applicable national rules must meet the requirements of equivalence and effectiveness. The requirement of effectiveness provides that national procedural rules must not render the exercise of rights conferred by EU law virtually impossible or excessively difficult. This article analyses under what circumstances national limitation rules may become inconsistent with the principle of effectiveness. The finding is that in this assessment the most influential criterion is whether commencement of the limitation period is postponed until the creditor has or should have had the possibility to enforce their claim, or if the creditor has in any case had a real possibility to present a claim prior to expiry of the period. If the answer is negative, the question must then be asked whether this outcome, namely the creditor's claim becoming time-barred, is justifiable by the objectives of the prescription regime, and whether the norms that led to this outcome are similar to corresponding norms in other legal systems. Perhaps the most important factor here is the length of the applicable ‒ expired ‒ limitation period. If it is seen as sufficiently long in proportion to its objectives and not particularly short in international comparison, the prescription regime should most likely be held as admissible in the light of the principle of effectiveness.
Law of obligations, European Union law, prescription, limitation of actions, the principle of effectiveness

В данной статье ставится под сомнение исключительный характер подсудности требований кредиторов наследодателя, предусмотренной частью 2 статьи 30 Гражданского процессуального кодекса Российской Федерации. В этом авторов убеждает практика применения указанной правовой нормы и правовая позиция Верховного суда Российской Федерации. Несмотря на распространенность правила об исключительной подсудности требований кредиторов наследодателя в дореволюционном законодательстве и оригинальное видение такого правила в советский период, авторы считают, что такая подсудность обладает более свойствами альтернативной, а значит, в данном случае должно быть позволено диспозитивное регулирование анализируемых правоотношений. В статье также отмечено существование разных критериев определения исключительной подсудности (предмет иска; субъектный состав спора в совокупности с периодом предъявления иска). Отсутствие минимальной взаимосвязи критериев подсудности проявляется в том, что в случае наличия нескольких критериев в одном деле создается неопределенность (понимаемая некоторыми практиками как альтернативность) в вопросе подсудности, при этом набор критериев подсудности может указать на один и тот же компетентный суд лишь случайно. ; The authors of the article analyzed exclusive jurisdiction of claims which sue to creditor of the testator in historical and acting regulations. The authors put together the conditions of the action rules and find three of the four the same clauses. They are the period of the claim, the court jurisdiction and the special ground for suspending the proceedings. The authors revealed a difference in plaintiff: a claim may be made only by the creditor of the testator or any other person. The article noted the restrictive interpretation of the considered rules on the exclusive jurisdiction. The competition rules on exclusive jurisdiction caused by different criteria for determining the jurisdiction: object of the claim or subjects of dispute together with period of submission of the claim. Besides the plaintiff could create an alternative jurisdiction in this type of disputes in the case the combination objects of the claim (for example flat and car) in one suit. According to practical applications of the jurisdiction's rule and legal position of the Supreme Court of the Russian Federation this kind of exclusive jurisdiction has not government's interest which must be protected. Further courts allow the discretion of the plaintiff to choose the court.

Aliens — Position of — Subjection to territorial sovereignty of receiving State — Currency regulations of general character — Prejudicial consequences of — Whether foreign creditor is able to escape such consequences.Aliens — Position of — Non — discrimination — Discriminatory treatment of property — Definition of — Under Chapter Ten of Convention on the Settlement of Matters Arising out of the War and Occupation, 1952-1954 — Concept of "impairment" — Currency reform — Effects of — Whether constituting discriminatory treatment.War — Effects of outbreak of — On enemy subjects with regard to their property — Control and blocking of enemy assets — Compatibility with international law — German Regulations — Restitution and compensation claims arising out of measures against enemy property — Satisfaction of such claims under Convention on Settlement of Matters Arising out of the War and Occupation, 19521954.

The article presents the issue of securing cooperative claims against the background of selected judgments of the Supreme Court. Such claims may be secured by establishing a mortgage, a registered pledge or the transfer of ownership for security. A cooperative, especially a housing cooperative, may be a beneficiary of such securities as a creditor. The assets of a cooperative can also be encumbered. It is not possible to establish security on a real estate with an unclear legal status. Establishing a mortgage on a separate ownership of the premises for which a land and mortgage register cannot be established is excluded. In a case of a title transfer for security, it is crucial to contractually define the mechanism of clearance for the parties and the issue of the so-called oversecuring.