A vétőképtelen személy károkozásáért való felelősség

In the Serbian literature the issue of the overlap between contractual and liability in tort has been thoroughly discussed. The majority of references state that the differences between the two regimes of liability outweigh their common features, thus separate sets of rules should exist governing each. There are authors who claim that differences are not of such significance so as make the integral concept of liability for damage senseless, hence they support the idea of regulating both regimes of liability by a single set of rules. The effective Obligations Act of 1978 is in line with the majority opinion, since it envisages different sets of rules for each regime of liability. Taking into account the existing duality of the rules in the Act, which significantly differ on major points, the key issue is the overlap of contractual and tortious liability, namely rules of which system of liability should apply if the injured party may base their claim on both (so-called concurrency of claims). Lacking an explicit rule in the Obligations Act, the majority asserts that the regime more favorable to the injured party should apply, which corresponds to the German solution. The inspiration for this paper is found in the new Hungarian Civil Code from 2013 which, in contrast to its predecessor, the 1959 Civil Code, and the Serbian Obligations Act, contains an explicit rule on the concurrency of claims in contract and tort. It prescribes a mandatory application of the rules of contractual liability even when the inflicted damage supports the application of the rules of the liability in tort. Such an approach is in line with the French non-cumul doctrine. The aim of this paper is, on the one hand, to initiate a discussion whether it would be reasonable to have a statutory rule in the Serbian law regulating explicitly the issue of concurrency of claims in contract and tort. On the other hand, the paper highlights the reasons that led the legislator in Hungary to prohibit the concurrency of claims. The solution of the new Turkish Code of Obligations from 2011 is mentioned in the paper, as well, which also contains an explicit rule on this subject matter. However, it took a diametrically opposite standpoint as the Hungarian Civil Code: it explicitly enables competing claims not only in contract and tort, but according to any set of rules granting redress to the injured party. Finally, the paper gives a review of the Project of the Reform of the French Code Civil concerning the rules of the liability for damage from 2017. The Project envisaged a rule that would codify the traditional standpoint of the case law and doctrine on the exclusion of the concurrence of claims and mandates the application of the rules on contractual liability. The Project specifies, however, some major exceptions, when regardless of the existence of a contract between the parties, the rules of tortious liability apply. For the time being, however, it seems that a genuine will of the legislature is lacking to embody the Project in the amendments of the Code civil.

This publication is devoted to various means of ensuring the collective rights of individuals to a healthy envi- ronment, and in particular to a special instrument of law, the actio popularis. The history of this dates back to ancient times, though its current forms are not identical with those of Roman law. This legal institution is used in many countries of the world, and not solely for environment protection. Consumer protection and environment protection are correlated both in law and in other social domains. The public prosecutor and the green ombudsman have special rights in the area of environment protection, and the ordinary citizen too should have the right to take steps to defend the natural and civiliza- tional environments. The new Hungarian Civil Code, due to come into effect on May 1, 2010, is designed to be an envi- ronmentalist civil code which considers the ancient dilemma of collectivist and/or individualist treatment of social prob- lems. The tools of private law will be adapted to the level of public law in the service of environment protection. The goals are given: the existing and the forthcoming regulations are to be adequately implemented under the auspices of envi- ronment-consciousness.

Pál SÁRY of all the substantive and procedural rules that gained authority through judicial application, even without formal legislative sanction. The work's prologue defines basic concepts such as justice, law, jurisprudence, judging, etc., using many Roman legal ideas. The first part deals mainly with noble private law, but the nobility's cardinal privileges are also included here. The second part contains the rules for nobles' litigation. The third part details town and serf law, as well as Transylvanians' special law. The courts began applying the Tripartitum, and it became mandatory in practice, despite the fact that the king had not promulgated it as law. It was soon translated into Hungarian and Croatian. Werbőczy's work had a decisive effect on legal life for several centuries. In Czechoslovakia, the Tripartitum was a source of civil substantive law until 1950, when the first Czechoslovak civil code entered into force. In addition to the Tripartitum, other collections of customary law, which were also compiled in the region, are also worth mentioning. The law code of Poljica is the most important historical source for the Republic of Poljica, which was an autonomous community in central Dalmatia (near modern day Omiš, Croatia). Its provisions, which were written in different times, contain norms of constitutional, criminal, civil, and procedural law and describe the social and economic relations of Poljica in the 15 th through 18 th centuries. The research on the customary law had an eminent representative in the humanist jurist Viktorin Kornel of Všehrd, who compiled an outstanding law book around 1500. His Knihy devatery (Nine books on the laws, courts, and tables of the Bohemian country) describes the Bohemian court organization and procedure, and also presents the rules of private law and partly of criminal law. The Korektura Taszyckiego of 1532 can be highlighted among the collections of Polish customary law. In most cases, town laws were based on legal customs that German settlers had brought from abroad, which they could continue to use under royal privileges. Towns that were founded subsequently often took over older towns' laws, creating 'town law families.' In this system, the law court of the 'mother-town' became an appellate court for the 'daughter-towns.' We can get a detailed picture of legal life in medieval and early modern towns based on their law books. Some significant town law books from the East Central European region are the focus of the fifth chapter of our textbook, which was written by Jakub Razim and Lenka Šmídová Malárová. The mid-14 th -century law book of Brno (or the law book of Jan the notary) was compiled for sworn men and magistrates, who were responsible for exercising judicial authority. This Latin compilation of municipal law and practice with court decisions is systematized by subject and divided into alphabetically arranged sections. The book's author, who worked as a notary in the Brno town office between 1342 and 1358, also applied Roman law, especially where local rules were absent. Use of the Brno law book spread quickly in Moravia and Bohemia, where it was abbreviated by Jan of Gelnhausen. The author of the Buda law book (Ofen Stadtrechtsbuch) was probably Johannes Siebenlindner, a juror at the Buda (Germ. Ofen) town court and later a town judge, Pál SÁRY the Habsburg rulers of Hungary and Croatia were also Czech kings. Between 1569 and 1795, the Polish-Lithuanian Commonwealth was one of the largest and most populous countries in Europe. This real union ended in 1795, when its territory was divided between Russia, Prussia, and Austria. Hungary's situation within the Habsburg empire changed several times. The Austro-Hungarian Compromise of 1867 reorganized the Habsburg monarchy as a dualistic real union. The Croatian-Hungarian Settlement of 1868 governed Croatia's political status as a territory of Hungary. In 1908, Austria-Hungary annexed Bosnia and Herzegovina. The First World War ended with the disintegration of Austria-Hungary. The Kingdom of Hungary suffered a huge territorial loss. The kingdom of the Serbs, Croatians, and Slovenians was created, and Romania was reorganized, acquiring vast territories. The independent country of Czechoslovakia (the First Czechoslovak Republic) was formed by the unification of the Czech, Slovak, and Carpatho-Ruthenian territories. The Second Polish Republic was established. However, this situation did not last long. The region was gradually reorganized through a series of decisions taken by the great powers (e.g., the Munich Agreement, the First and Second Vienna Awards, and the Molotov-Ribbentrop Pact). After the Second World War, the political conditions and state borders changed again, and the region's countries became part of the Soviet bloc. Between 1949 and 1991, economic cooperation between the socialist countries took place within the framework of the Council for Mutual Economic Assistance (Comecon). In 1955, the Warsaw Pact established the military organization of countries belonging to the Soviet sphere of interest, which operated until 1991. Based on this treaty, Soviet military troops could be stationed in socialist countries. The fall of communism and the disintegration of the Soviet Union brought about a significant change in the region's political and international relations. Most European private law systems today are codified, but there are also noncodified systems (in the common law system, for example, private law is not codified). The seventh chapter of our textbook, written by Emőd Veress, provides us with a history and comparative analysis of private law codifications in the East Central European region. The region's private law codes were mostly influenced by the French (Napoleonic) Civil Code of 1804, the ABGB of 1811, and the German Bürgerliches Gesetzbuch (BGB), which entered into force in 1900. For example, the Serbian civil code of 1844 was strongly influenced by both the Austrian and French codes, the Romanian civil code of 1864 was inspired primarily by the French code, and in the case of the Polish code of 1964, the effects of the German, Austrian, and French codes can all be demonstrated. The intensity of model following varied for each code. Our region is generally characterized by a dualistic solution, i.e., civil law in the narrower sense and commercial law are regulated by separate codes. However, there are also examples of the application of the monistic principle; the new Romanian civil code (Act 287 of 2009) and the new Hungarian civil code (Act V of 2013) switched to monistic regulation, breaking with the dualistic system (the latter code discusses the substantive rules of commercial companies among legal persons). The last chapter of our book, authored by Ewa Kozerska, analyzes the legal situation of the churches in the period between 1945 and 1989 in relation to Czechoslovakia, the German Democratic Republic, Hungary, and Poland. Although the socialist constitutions declared freedom of religion, in reality, the holders of political power did everything to spread the atheistic worldview and suppress religious life. Church properties were confiscated, church schools were nationalized, religious education was abolished, and monastic orders and religious associations were dissolved. The activities of the churches were significantly restricted and placed under strict state supervision. The holding of clerical positions (mainly episcopal appointments) was subject to a state license. Catholic priests were forced to join movements loyal to political power, the papal envoys were expelled, and contact with the Vatican was hindered. Resisting priests and monks were imprisoned, and show trials were often held for political purposes. Secret service agents prepared detailed reports on all manifestations of religious life. Churchgoers suffered many disadvantages. Religious life thus took place in an atmosphere of constant fear. It is no coincidence that Karol Wojtiła emphasized these words in his first Mass after his election as Pope: "Do not be afraid." The activities of the Holy Pope, who showed direction and gave spiritual strength, contributed significantly to the political changes of 1989. This textbook is the fruit of successful international cooperation. The creator and director of this joint work was my dear colleague, head of the Ferenc Mádl Institute of Comparative Law, János Ede Szilágyi, to whom I am very grateful for his principled guidance. I received useful advice from Emőd Veress in defining specific topics, for which I am also grateful. Of course, I am very grateful to the authors of the chapters for participating in our joint project and doing careful, high-quality work. Thanks are also due to the reviewers for their helpful comments. Historical maps are very important for studying legal history. The fourteen maps in our textbook are the work of Zsombor Bartos-Elekes, who, as a cartographer, also commented on the maps and compiled a list of the names of the cities on them. Special thanks to him for his precise work. We hope that our textbook will enrich many students with knowledge. It is our sincere hope that by studying the history of law, our readers become better suited to practice their chosen profession.

The European Parliament resolution of 16 February 2017 on Civil Law Rules on Robotics proposed that the strict liability and the risk management approach are alternative legal instruments to achieve the goals set out by this instrument. The evolution of strict liability is parallel with technological change; our question here is whether the elaborated rules are appropriate for managing new problems. For establishing accountability, the question arises: who is to be held liable for damages and based on which form of liability? Setting aside the issues of product liability and setting aside the independent liability of the most sophisticated autonomous robots having ‘electronic personality’, this essay concentrates on liability questions of the user, and it examines the strict liability rules instituted by the Hungarian Civil Code and their application in practice. According to the results of our previous research, the judicial practice regarding the general clause of liability for dangerous activity (Section 6:535. HCC) is quite flexible and covers the liability issues of damage caused by artificial intelligence. We observed also that the criterion ‘dangerous’ means less and less risk of damage within normal circumstances, and this statement of fact in practice also successfully competes with other strict liability rules (i.e. product liability for malfunctioning medical devices, liability for dangerous animals, etc.). The capacity of the ‘keeper’ or ‘operator’ of the robot and the emerging new types of risks are also touched upon.

It has been established that the institute of assignment of claim (cession) is one of the key mechanisms in the law of obligations of Ukraine, yet its regulation in the Civil Code has significant gaps. The absence of a clear legislative definition of cession leads to doctrinal controversies regarding its legal nature – whether it is an independent legal transaction or a result of other agreements, which complicates qualification and leads to disputes. Historically, cession developed from Roman private law, overcoming the limitations of early forms of transfer of obligations and becoming an effective mechanism for the transfer of rights. It has been researched that modern judicial practice resolves these discrepancies by considering cession as a legal result of other contracts, thereby increasing legal certainty. A clear distinction of cession from related legal institutions, particularly factoring, based on criteria of subject matter, purpose, onerousness, and composition of parties, is important. The necessity of legislative consolidation of these distinctions is recognized in the Draft Concept for Updating the Civil Code of Ukraine, which is an important step towards eliminating legal uncertainty. The Draft Concept also proposes the modernization of the institution of cession, including the possibility of assigning future rights provided they are identifiable, harmonizing Ukrainian legislation with European standards, particularly with the provisions of the Draft Common Frame of Reference (DCFR). A review of restrictions on the assignment of claims in Article 515 of the Civil Code is envisaged, allowing the assignment of property rights with the debtor’s consent and limiting the transfer of rights inextricably linked to the creditor’s personality. It has been proven that for further strengthening the protection of participants’ interests and increasing trust in the claims market, the implementation of additional provisions of European contract law, particularly the DCFR, is expedient. This includes the introduction of detailed warranties from the cedent to the cessionary (regarding the existence of the right, stability of terms, and protection against double assignment), as well as clear rules regarding successive assignments, where priority is determined by notification to the debtor. The consolidation of the principle of impossibility of separate assignment of an accessory right is also important. It is emphasized that despite progress in judicial practice and proposed amendments to the Civil Code, the legal regulation of cession requires further systemic modernization. Comprehensive implementation of European standards is necessary for the full protection of participants’ rights, increasing trust in the claims market, and the effective functioning of the institution in Ukraine.

The 2024 legislative reforms in Romania’s civil code and civil procedural lawaimed to modernize and streamline the judicial system, aligning it with technologicaladvancements and European standards. Key measures included the digitalization of civilprocedures through electronic case files, videoconferencing for court hearings, and recognitionof qualified electronic signatures, enhancing accessibility and efficiency. New regulations ononline contracts and AI liability addressed emerging challenges in digital transactions andadvanced technologies. However, the reforms revealed obstacles such as inadequatetechnological infrastructure, resistance to ch ange among legal professionals, and legaluncertainties due to varying interpretations of the new rules. Effective implementation requiresprofessional training, consistent judicial practice, and infrastructure investment to maximizethe benefits of the re forms. By addressing these challenges, Romania can foster a moretransparent, efficient, and accessible justice system.

The new Hungarian Civil Code’s Fourth Book contains family law regulations. It has resulted in the HCC replacing the Hungarian Family Act. The debate on whether family law is an independent branch of the law or part of the civil law is analysed in the thesis, which brings marriage and cohabitation into focus. There are three kinds of partnerships in the Hungarian law, namely marriage, registered partnership and cohabitation; among them, marriage is by far the most prestigious institution. Family law is based traditionally on marriage and it is reflected in the new rules, as well as the detailed and deeply regulated rights and obligations of spouses, which are in the foreground. Solidarity is required from the spouses towards each other henceforward but also their autonomy is supported via marital property agreements. Just to the contrary, cohabitation has remained a contract, even after long debates. Cohabitation as a contract is not contained in the Fourth Book. Nevertheless, if cohabitants have a common child and they live together at least one year, so-called family law consequences may emerge, and these are regulated within family law. This solution endeavours to fulfil the requirement to protect of the child’s best interest. This chapter gives an introduction to the regulation of marriage and cohabitation (registered partnership is mentioned in a nutshell) and sketches the main trends in family law while analysing the shaping of the regulations in the course of the codification process. Finally, some aspects of the new rules are dealt with also in the context of the Principles of European Family Law of the CEFL (Commission on European Family Law).

Introduction. The relevance of the topic is due to the fact that in economic, legal and judicial practice problems arise with the qualification of contractual legal relations for the provision of paid services. Often, actions for the transfer of energy and energy resources (energy supply contracts), actions for the performance of work (contract agreements) are qualified as services. Such features of contracts for chargeable services as their public nature are not taken into account. Citizens-customers are not recognized as consumers, as a result of which claims for compensation for moral damage are not satisfied; even in cases of correct qualification, the general provisions on work contracts and the rules on household contracts do not additionally apply. In scientific works and sections of textbooks, when characterizing contracts for chargeab le services, the characteristics we have named are not considered in their entirety. Materials and Methods. The materials for the study were the norms of civil legislation of the Republic of Kazakhstan and the Russian Federation on contracts for chargeable services, materials of judicial practice and the positions of scientists on the topic under consideration expressed in the doctrine. Among the methods of scientific research, both general scientific and specific scientific ones were used, including the formal legal method and the method of comparative law. Analysis. The study is based on the analysis of general provisions on contractual obligations for the provision of chargeable services using examples of their presentation in the Civil Codes of the Russian Federation and the Republic of Kazakhstan. The author’s justification for combining a big array of contractual structures in one small chapter of the Civil Code is given. When considering the civil law characteristics of contracts for the provision of paid services, the author provides examples of judicial practice to confirm theoretical provisions, as well as the positions of various scientists on the issues under consideration. Issues about the public nature of many contracts for the provision of chargeable services are considered, the need to apply to many contractual structures the rules on work contracts and household contracts in particular, as well as the application of legislation on the protection of consumer rights in legal relations with the participation of individual customers is substantiated. Results. Conclusions are drawn about the public nature of many contracts for the provision of chargeable services, providing grounds for additional protection of the rights of customers. The important theoretical and practical significance of the rules on the application of contract provisions to contracts for the provision of chargeable services is noted. The position is substantiated on the recognition of customers-citizens purchasing services for personal, household and other consumption not related to production / entrepreneurship as consumers and the application of relevant legislation to them, including the right to compensation for moral damage.

In everyday life, agreements are frequently made without written documentation, especially in informal social interactions and economic activities. This raises important legal questions regarding the validity of verbal agreements. In Indonesia, the legal status of such agreements is governed by the Civil Code (KUHPerdata), particularly Article 1320, which outlines the requirements for the validity of an agreement. This article stipulates that an agreement must fulfill four conditions: consent, the capability of the parties, a certain subject matter, and a lawful cause. Despite the absence of written documentation, verbal agreements are considered legally valid in Indonesia as long as they meet these four requirements. The primary challenge, however, lies in the difficulty of proving the existence and terms of verbal agreements, particularly in cases of dispute. Since oral contracts lack physical evidence, parties involved may face difficulties in substantiating their claims in court. This makes verbal agreements vulnerable to legal challenges, as the burden of proof falls on the party asserting the agreement. In light of these challenges, it is advisable for parties involved in significant transactions or agreements to document their commitments in writing. A written agreement provides clear evidence of the terms and conditions agreed upon by the parties and serves as a safeguard in case of legal disputes. Although verbal agreements can hold legal weight, having written records is considered a better practice for ensuring legal protection and preventing potential conflicts. This study concludes that while verbal agreements are legally valid under Indonesian civil law, their enforceability can be compromised by the lack of written documentation, making written agreements a more secure option for all parties involved.

One of the important institutions of the law of obligations is the termination of an obligation. After termination, the obligation no longer exists. Its participants are no longer bound by rights and obligations. The purpose of a legal relationship with an obligation is the acceptance of the performance stipulated by the obligation by the parties, i.e., the performance achieves the goal that the participants in the obligation intended. After that, there is no longer any legal basis for the continuation of this relationship. Just as in countries with a continental law system, in the case of Georgia, the norms regulating the performance of obligations are mainly of a dispositional nature. The Georgian Civil Code is an act oriented towards performance. Both its general and private parts are built on performance mechanisms. The main thing is performance, not responsibility. The termination of an obligation is caused by certain circumstances, which are called the grounds for the termination of an obligation. The Civil Code of Georgia provides for various grounds for the termination of an obligation, in particular, the termination of an obligation can occur by the performance of the obligation; By deposit; By set-off of mutual claims; By debt forgiveness; When the debtor or creditor turns out to be the same person; By the death of the debtor or creditor; By liquidation of a legal entity and on other grounds provided for by law. The article discusses, based on the analysis of doctrine and judicial practice, such legal grounds for the termination of an obligation as mutual set-off, related theoretical and practical issues of material and procedural legal significance.

The article is devoted to a comprehensive study of the penalty provided for in Part 2 of Article 785 of the Civil Code of Ukraine (CC of Ukraine), which establishes liability for violation of the obligation to return leased (rented) property after termination of contractual relations. The article considers a number of problematic issues: the legal nature of the provision of Part 2 of Article 785 of the CC of Ukraine; doctrinal approaches and judicial practice regarding the essence of the sanction in relation to the general provisions of § 2 of Chapter 49 of the CC of Ukraine; the issue of the statute of limitations; the subject of proof; the content of appropriate actions and measures for the return of property; the possibility of reducing the amount of the penalty by the court. The study showed that the incentive to fulfill the obligation to immediately return property is an atypical penalty both in its structure and severity. It was found that the penalty under study does not correspond to the classic structures of a fine or penalty, but at the same time, it tends to be similar to a penalty in terms of its content. It has been proven that the legislator’s approach to the amount of the penalty for breach of the obligation to return property is unjustified, as it does not comply with the principles of fairness and proportionality. The need for legislative improvement of Part 2 of Article 785 of the CC of Ukraine has been substantiated by revising it to ensure a balance between the interests of the lessee and the lessor and not to turn the penalty into a severe and unjustified punishment. The authors of the article analyze the legal position of the Joint Chamber of the Commercial Court of Cassation within the Supreme Court dated August 16, 2024 in case № 910/14706/22, which represents an evolutionary departure from previous judicial practice as a result of a reassessment of the essence of the sanction, as well as an expansion of the subject matter of proof. The consequences of the change in the approach to the interpretation of part 2 of Article 785 of the CC of Ukraine for law enforcement are considered. The article focuses on the possibility of reducing the amount of the penalty in order to ensure a fair balance of interests between the parties, and highlights the essential circumstances that are accepted by judicial practice as grounds for reducing the amount of the sanction. The study was conducted through the prism of judicial practice at all levels and is useful for practicing lawyers, law students, and anyone interested in problematic aspects of contract law.

The article is devoted to the description of the French model of impossibility of performance of an obligation under the Napoleonic Code of 1804. Authors compare the latter with the Pandect, Anglo-Saxon, Uniform and Russian models of impossibility of performance of an obligation. It is noted that the first version of the French Civil Code did not use general construction of impossibility of performance. Instead it defined legal effect of particular types of impossibility of performance. It regulated the situation when the object of an obligation was destroyed, ceased to be a thing in commerce or was lost. Authors point out that, unlike Russian, French judicial practice does not strictly follow the rule established by the French Civil Code on the automatic termination of an obligation due to the impossibility of its performance, allowing in this case the termination or amendment of the contract by a court decision. The aim of the article is to reveal the promising directions for the development of Russian civil legislation on the basis of detailed analysis of the French model of impossibility of performance of an obligation under the Napoleonic Code of 1804 in comparison with another models of this legal institute (Pandect, Anglo-Saxon, Uniform models). The aim of the research determines its methodology, which is based on historical legal and comparative legal analysis mainly. The authors analyze the provisions of the Napoleonic Code of 1804 on the impossibility of performance of an obligation in comparison with both the relevant norms of the civil legislation of other foreign countries, and the norms of the Civil Code of Russia, taking into account the practice of their application. The prerequisites for the reform of the French law of obligations in 2016 in the relevant part are established. It is noted that the first version of the French Civil Code did not use general construction of impossibility of performance. Instead it defined legal effect of particular types of impossibility of performance. It regulated the situation when the object of an obligation was destroyed, ceased to be a thing in commerce or was lost. Authors point out that, unlike Russian, French judicial practice does not strictly follow the rule established by the French Civil Code on the automatic termination of an obligation due to the impossibility of its performance, allowing in this case the termination or amendment of the contract by a court decision. The authors declare no conflicts of interests.

Part One: Non-contractual Liability and Contract Law

In the Russian legal system, a relevant range of issues is related to the institution of real estate. Depending on the intended purpose of the real estate object, the legislator may set restrictions or encumbrances for their use. They are aimed at protecting the interests of both owners and other participants in civil turnover: individuals and legal entities, public authorities. Most of the difficulties in implementing the real estate rights are of a civil law nature, which are caused by the conflicting content of legal norms and their effect on legal relations. Generalization and analysis of current practice in this area of relations indicates that there are some problems and the need to resolve them by making amendments and additions to existing laws and industry acts. This, in turn, should contribute to creating effective mechanisms and ways to protect the interests of owners in the field of exercising the right to property, removing restrictions and encumbrances of rights to real estate. The purpose of the study is a comprehensive analysis of the legal nature and types of restrictions on ownership of real estate in the Russian civil law, as well as identifying their relationship to encumbrances and determining their impact on the scope of the owner's powers. Materials and methods. The methods of general scientific and specific analysis, generalization were applied, which made it possible to identify the features of the topic under study and formulate conclusions for studying problematic aspects of restrictions and encumbrances of property rights in the real estate sector. The methodology of the work is based on applying an integrated approach focused on a comprehensive legal analysis of the stated problem. When considering and analyzing the issues raised, civil law provisions, scientific publications and works on real estate issues were used. A systemic approach is used as a methodological basis, including comparative legal and formal legal analysis of the provisions of the Civil Code of the Russian Federation, federal legislation and judicial practice. Results. The study revealed the legal nature of these institutions as a deterrent mechanism that provides a balance between the rights of the owner and public or private interests. Based on scientific doctrine (S.A. Charkin, T.E. Kolosova) the authors considered and applied criteria for classifying restrictions and encumbrances, and determined their relationship: restrictions are understood as general objective limits of rights established by law, while encumbrances act as their specific forms, directly narrowing the scope of authority in relation to a particular object. The analysis of the regulatory material and the analysis of the court case made it possible to establish that the impact of restrictions and encumbrances is manifested mainly in the sphere of powers of use and disposal. At the same time, a comprehensive interdisciplinary nature of the institution was proved, which is regulated not only by the civil law, but also by land, housing law, and, in certain aspects, by the environmental and urban planning law. The study also revealed a number of such urgent law enforcement problems as difficulties associated with facilities on non-demarcated land plots, under-registration of rights in new buildings and the need to strengthen responsibility for concealing information about encumbrances. Conclusions. Restrictions are a deterrent mechanism that provides a balance between the rights of the owner and public or private interests. They establish common boundaries for rights. Specific forms of restrictions that directly narrow the scope of authority are encumbrances. Their impact on the rights of the owner is mainly manifested in the sphere of disposal and use of property. Ownership rights are a legal institution of a comprehensive, cross-sectoral nature, the norms of which are regulated by civil, land and housing legislation. Solving the problems of law enforcement practice requires further specification of legislative structures of restrictions and encumbrances, as well as the development of their uniform understanding in judicial practice.

Мета статті: удосконалення інституту адміністративного договору на підставі виявлення проблем укладання, виконання, сфери дії, особливостей правової природи цього договору, а також запозичення позитивного міжнародного досвіду його застосування. Методи дослідження: використано порівняльно-правовий метод, аналізу і синтезу, формально-юридичний. Результати: з’ясовано, що адміністративний договір є ефективним інструментом регулювання адміністративно-правових відносин, що допомагає реалізовувати виконання певних функцій суб’єктами владних повноважень. Виявлено, що законодавством України недостатньо регламентовано досліджуваний договір, що спричиняє дискусії в науковому cередовищі, породжує неоднакові підходи у правовій та зокрема судовій практиці при вирішенні спорів, що виникають з адміністративних договорів. Запропоновано запозичити досвід Німеччини стосовно впровадження адміністративного договору та внести зміни у Закон України «Про адміністративну процедуру», де необхідно чітко визначити підстави укладання адміністративного договору, його зміни, припинення, вимоги до форми та інші важливі критерії. Обговорення: сфери застосування адміністративного договору; контроль за виконанням адміністративного договору; відносини підпорядкування в адміністративному договорі.