Foundations of Property Law

The article aims to define the legal nature and characteristics of a share in the authorized capital of a business entity as a specific object of property and contractual rights. The relevance of the research topic is because the analysis of Ukrainian corporate legislation does not provide a direct answer to the question of what the object of corporate investment is, and this creates difficulties in understanding both the essence and structure of legal relations arising from a person’s contribution to the charter capital of a business entity. Even though corporate relations have specifics, they are civil relations and should be considered within the framework of established civil law structures. The object of legal relations is a necessary element of the structure of legal relations. The objects of legal relations in which a person acquires a share in the charter capital of a legal entity and corporate rights instead of a contribution are a contribution (property) owned by a participant based on a right in rem (usually based on ownership), a share in the charter capital and corporate rights. A share in the charter capital of a business entity is a specific object in the field of property and contract law, which necessitates a special legal regime for it. The authors conclude that it is a share in the charter capital of a business entity that is the object of civil rights. The specificity of this object is determined by the fact that a share is a tradable property proper, which allows it to be an object of property rights and a subject matter of contract law. In property law, a share in the charter capital belongs to the shareholder who has contributed to the charter capital of a business entity. If a shareholder of a business entity is married and has contributed at the expense of the marital property, the share in the charter capital belongs to the spouses based on the right of joint ownership. Understanding a share as an object of property rights provides a company participant with substantive legal mechanisms for exercising and protecting its right to a share (full powers and protection through substantive legal claims). In contract law, the specifics of a share as an object of civil rights affect the determination of the moment of transfer of ownership under a contract. In this regard, the legislation should state as a rule that the moment of transfer of ownership of a share in the authorized capital under a contract is determined by the moment of its conclusion unless otherwise provided by the contract. Keywords: share in the charter capital of a business entity, corporate rights, real law, contract law, right of joint and several ownership, remedies in rem, subject matter of a contract, object of civil rights.

This Article examines the -symbiotic relationship between copyright and contract law. The intellectual property bargain, or the delicate balance that allegedly exists in current intellectual property law, cannot be seen merely as a matter of a balance stated in property law rules. An interaction between intellectual property and contract has always been a primary characteristic of intellectual property distributed in the open market and that interaction is central to whatever balance has been achieved. When one speaks about an existing balance in the property rights sector, it is futile to focus solely on the statutory provisions of the copyright, patent or trademark laws. One must, of necessity, understand and incorporate the fact that the policy choice has always assumed that property rights are routinely transferred, waived, released, and licensed. Only the most naive observer, or one with a clear political agenda, can look at the intellectual property laws and their history and suggest that policy in the property sphere trumps or precludes the influence of contract. In contractual relationships, underlying property rights are often relatively unimportant. They provide rules that state a legal position that exists between the contracting parties unless the parties otherwise agree. Contract law provides other default rules. In the digital world, the contract rather than the underlying property law defines the product. This being said, however, there are some settings in which contract law, intellectual property, or competition law place limits on the ability to enforce some contract terms. This Article explores some of these areas and describes their limited role in modem commerce.

The article is devoted to the analysis of a digital thing as property and its negotiability. It is argued that the formation of digital property law is based on the functional approach of introducing digital things into property and law of obligations as property, property or other rights which reflect the essence of a digital thing. It is noted that digital things are property if they have property value, can be alienated and can be enforced by creditors, regardless of their equation to things or recognition as property (obligatory, etc.) rights. It is noted that by their legal nature, digital things are heterogeneous intangible property benefits that exist in electronic form and express value or contractual rights. Different types of digital things are legally characterized by property, obligatory or other rights which determine the nature of rights of a digital thing. The study applies dialectical, comparative legal, formal and logical, and systemic and structural methods of scientific cognition. It is proved that the formation of digital property and obligation law inherent in modern law is a global trend characterized by the gradual recognition of certain types of digital things as property equivalent to things or property rights, taking into account the provisions of law and the essence of a digital thing, and the creation of functional equivalents of possession, property rights inherent in traditional property or obligation law, taking into account the peculiarities caused by the intangible nature of digital thing.

This article considers the challenges of using and protecting forest ecosystems as natural objects of Ukrainian property rights. It has been proved that as a result of unsystematic nature use and neglect of constitutional requirements, in Ukraine there is a significant decrease in the level not only of forest productivity, but also deterioration of the environment. The directions of the land ownership reform and its natural resources and management approaches in forest ecosystems through the prism of the national interests of Ukraine have been proposed.

Article Functional method of comparative law and argumentation analysis in the field of transfers of movables: Can they contribute to each other? was published on April 1, 2013 in the journal European Property Law Journal (volume 2, issue 1).

»Vielmehr bietet [der Kommentar] auf höchstem Niveau eine substantielle Auseinandersetzung mit den Hintergründen, den Zusammenhängen, der Theorie und der Praxis des Grundgesetzes. Besseres lässt sich von einem Verfassungskommentar nicht sagen.“ Herbert Günther Staaatsanzeiger für das Land Hessen 2018 (50), 1494–1495

This article is devoted to the study of the legal nature and essence of such an object of civil rights as a temporary structure for entrepreneurial activity (hereinafter referred to as the Temporary Structure). The issue of the legal nature of the temporary structure and its legal regime is relevant in today’s conditions, since the current legislation does not clearly define its legal status, including as an object of civil rights, which in turn creates legal uncertainty in the field of regulation of legal relations on the use of temporary structures. Therefore, special attention is paid to the clarification of the essence of the concept of Temporary Construction as an object of real legal relations through the prism of the current legislation on the basis of practical activity and scientific validity. The article analyzes the norms of the Civil Code of Ukraine, the Law of Ukraine «On Regulation of Urban Planning Activities», the Procedure for the Placement of Temporary Structures for Entrepreneurial Activity, which determine the concept and features of Temporary Structures, the procedure for their placement in cases determined by the current legislation of Ukraine, as well as the features and limits of the exercise of property rights in relation to the latter. Special attention was paid to the characteristic features of the Temporary Structure and the attribution of the latter to the relevant category of things in civil law. The author focuses on the importance of establishing the legal status of the Temporary Structure as an object of property rights. During the study, it was found that the Temporary Structure belongs to the category of things in civil law and acts as a specific object of law of both private and joint ownership. Based on the analysis of the norms of the current legislation, sources of scientific legal literature, and judicial practice, conclusions were made that allow us to consider that the Temporary Structure is a movable thing and a specific object of property rights. The specificity of this object lies in the fact that it has the characteristics of an object of ownership, but the latter does not have a clearly defined title owner. It was also concluded that the legal regime of the Temporary Structure today requires careful attention from the legislator, and therefore the only tool for improving the latter is a clear consolidation at the legislative level of the legal status of the Temporary Structure and the determination of its title owner, which will make it possible to unconditionally consider the Temporary Structure as an object of property rights and provide an effective mechanism for protecting the rights of their owners, as participants in civil legal relations.

Chapter 3 Property Law

The article is devoted to the study of the general provisions of intellectual property law in Ukraine. The article notes that the importance of protecting property rights in the intellectual sphere has been growing rapidly in recent decades. A theoretical and practical understanding of the nature of intellectual property rights was carried out based on the analysis of current legislation and available scientific, methodical and journalistic materials. The list of laws that regulate activities in the field of intellectual property, both at the national and international level, is given. It is interesting to note that in Ukraine there are quite a lot of special legislative acts regulating the above activities. Attention is focused on the adaptation of Ukrainian legislation to the legal system of the European Union. International legal acts regulating the protection of intellectual property rights are given. Scientific and regulatory approaches to defining the concept of intellectual property rights are considered. It is established that this concept can be considered in two ways: objective and subjective. In an objective sense, in the legal literature, intellectual property law is considered as a system of legal norms that regulates homogeneous social relations in the field of intellectual property. In a subjective sense, the right of intellectual property is considered as personal property and non-property rights of natural persons, which according to the current legislation belong to the authors for the results of intellectual activity. Special attention is paid to the interpretation of the concepts of property and non-property intellectual property rights. Property intellectual property is the author's rights to the results obtained from his creative activity, similar to the property rights of those who create material objects with their labor (devices, devices, mechanisms, new information technologies, etc.). Non-property intellectual property rights are a set of moral, mental, rational, intellectual and other human rights, which by their nature cannot be alienated from the owner. A comparative analysis was made between intellectual property law and property law in general, and their relationship was also analyzed.

The article reveals the requirements for immediate institutionalization of the current land norms of the Constitution of Ukraine as carried out over thirty years the so-called «land and agrarian reform» in Ukraine does not correspond to the declared land transactions, which aim at the development and real economic and legal strengthening of Ukrainian statehood. The aim of the article is to substantiate the basic principles of emergence of the system of property rights of the Ukrainian people to land and its natural resources in the accomplishment of land reform in New Ukraine as a new paradigm that develops at the highest quantum level understanding of the synergetic role legitimate interests of all citizens of Ukraine. The fundamental differences between the land norms of the Constitution of Ukraine (Articles 13, 14) and the Constitution of the Russian Federation (Articles 9) are revealed. It has been established that in the current hybrid environment of degradation and opposition to the development of the state by the unconstitutional corruption system, there is a need to unblock the resistance — in a constitutional way, by providing an immediate and fair official interpretation of the current constitutional land norms by the Constitutional Court of Ukraine. It was found that due to the absence of a constitutionally declared special Law of Ukraine «On the Right to Use Natural Objects of Property Rights of the Ukrainian People» for a quarter of a century, the rights of their owner (all citizens of Ukraine) are violated and the unauthorized use of the nation’s capital occurs. As a result, the rights, duties and responsibilities of users of natural objects are not standardized, as well as full-fledged requirements for their rational use and protection on a paid basis in accordance with established regulations. The necessity of urgent introduction of land reform to date is proved — in the current constitutional field of Ukraine, ensuring the institutionalization of constitutional norms regarding the land and its natural resources as natural objects of the property rights of the Ukrainian people and the main national wealth, which is under special protection of the state. It is proposed to adopt a number of relevant laws and regulations.

The ability of an authorized person to exercise their rights without restrictions can lead to arbitrariness, negatively impacting the stability and resilience of the civil law system, as well as the ability of other entities to exercise their property rights. This is unacceptable in a rule-of-law state. Therefore, in the context of a legal state, it is necessary to develop and establish an effective mechanism for limiting property rights, one that ensures a balance between the property interests of authorized persons and the opposing rights of other individuals and the interests of society. Such limitations should promote stability, the proper development of property rights for individuals, and their appropriate exercise. Restrictions on individuals’ property rights can prevent unlawful behavior for the sake of societal interests and the rights of other authorized persons. When setting limitations, the nature of subjective civil rights must be taken into account, as they are more fundamental and primary compared to restrictions. The essence of subjective civil rights, which are exercised at the discretion of the individual, must be preserved, provided that this does not contradict important societal interests or the rights of other authorized persons. At the same time, the fulfillment of private interests, which are prioritized, should be ensured as much as possible. To this end, when imposing restrictions on the property rights of individuals, it is essential to consider the phenomena and regularities in the development of property rights, as well as the interests of other individuals and society. This idea involves the necessity of proportionate restrictions on property rights, aiming for a sufficient level of limitation while maintaining the ability to exercise property rights, considering the rights of others and societal interests. The limitations on individuals’ property rights should be based on key principles such as proportionality, reasonableness, legality, and social orientation. The application of these fundamental ideas in legal regulation helps protect the rights of individuals and ensures their proper exercise in compliance with the rights of all subjects of civil law. A promising and practically significant approach to identifying the specific characteristics of restrictions on individuals’ property rights, according to Ukraine’s civil law system, is their classification within the major civil law institutions that govern property rights (property law, contract law, non-contractual obligations, and inheritance law). One of the prerequisites for establishing restrictions on individuals’ property rights is the public interest or societal necessity that justifies limiting an individual’s rights.

Private law does not operate in isolation. Throughout history, private lawyers have been aware of the limits of their field. In property law, this traditionally means referring to public law – especially public law limitations to property rights. The juxtaposition so created is that private law stands for freedom and autonomy and it is public law, in the form of constitutional law or administrative law, that forms most restrictions. With the exception of the doctrine of abuse of rights, for example, the ideas surrounding the right of ownership are virtually limitless. The owner is the person that can dispose over his property in the most absolute manner. In this contribution, I will first explore the theoretical foundations of property law and their importance (section 2). I will then turn to property and human flourishing (section 3), obligations in property law (section 4) and deal with the Dutch qualitative obligation (section 5).

The paper is devoted to the analysis of the place of absolute civil rights in the system of legal regulation of relations in merchant shipping. The main objectives of the study are to identify the role and general legal features of absolute civil rights exercised in the field of merchant shipping, as well as the search for optimal directions of improvement of civil legislation regulating the relevant relations.The paper characterizes the interaction between absolute and relative rights in the process of regulating relations in merchant shipping. It is established that property rights, due to their absolute nature, constitute the legal basis for the formation of legally binding relations under private and public law. In turn, the content of property rights is actively affected by public goals and tasks of legal regulation of relations arising in merchant shipping. For example, the extension of the status of an immovable property to a marine vessel is preconditioned due to the tasks of ensuring public policy in the field of commercial navigation. The author highlights the main material objects of property rights. Particular attention is paid to the peculiarities of the property law regime applied to the sea vessel and the objectives of establishing these peculiarities. The author summerizes the main normative and doctrinal approaches to the definition of the concept of a “vessel” and substantiates the necessity of a single normative consolidation of this concept in the legislation of the Russian Federation and international law instruments.The author differentiates between absolute and relative relations in the field of commercial navigation. The author substantiates the property and legal nature of the relationship arising with regard to sea vessel possession when the vessel is leased out, as well as possession of the cargo on board of the vessel. The author makes proposals concerning inclusion in the Civil Code of the Russian Federation of certain provisions on possession of a thing, as well as proposals on the development of special legal norms governing limited property rights to objects of merchant shipping.

The Particulars of Owning

This study aims to analyze and determine the criteria for intellectual property rights (copyright) as objects of inheritance in civil law and to analyze and determine the status of intellectual property rights (copyright) as objects of inheritance in civil law. Intellectual property rights are material rights, rights to objects originating from the work of the brain, the result of the work of the ratio. The result of the work of reasoning human ratios. The result of his work is in the form of immaterial objects, intangible objects, for example, copyrighted songs. Article 16 paragraph (1) Law no. 28 of 2014 concerning Copyright stipulates that by its nature copyright is an intangible movable object. Immaterial property rights are property rights whose objects are intangible objects (intangible objects). In this case many things can be used as objects of property rights which are included in the scope of incorporeal objects. For example, billing rights, rights arising from the issuance of securities, rental rights and so on. The results of the study concluded that copyright (copy rights) which is part of Intellectual Property Rights has criteria as an object of inheritance, because copyright law determines copyright as an intangible movable object that gives moral rights and economic rights to its creators which are exclusive which can be transferred to his heirs. Copyright (copy rights) which is part of Intellectual Property Rights (IPR) according to civil law has the position of an object of inheritance, because the law of inheritance is regulated in book II of the Civil Code which regulates objects. Inheritance object according to civil law is an object that is the property of someone who died.