Legal regime of business partnership property (considering international experience)

R. M. Artemenko

doi:10.32631/pb.2023.2.13

R. M. Artemenko Kharkiv National University of Internal Affairs

DOI: https://doi.org/10.32631/pb.2023.2.13

Keywords: business entities, objects of civil rights, property, legal regime of property, things, property rights.

Abstract

The article concludes that property as a special object is a separate thing, a set of things, as well as property rights and obligations. This understanding, despite the existence of certain terminological differences, coincides with its general understanding in the system of legal knowledge of certain countries of the Romano-Germanic legal family, in particular, countries with a pact system of law, and corresponds to the content of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. In the legal literature, it includes any economic benefits, objects of both the material and intangible world, which are in the state of appropriation of a person. At the same time, the word “property”, as used in Article 1 of Protocol 1 to the Convention, refers to an object of economic value. In this sense, property is an economic category and synonymous with the economic concept of “ownership”. This is also indicated by the use of such concepts as “assets”, “funds”, “profit”, “goodwill”, “accumulated intangible assets of the enterprise”, “property of economic value” in the ECHR judgments to describe the category of property.

From the legal point of view, it is justified that only things, collections of things, and animals are considered by the legislation and doctrine of the countries of the continental legal system as objects of property rights or other property rights. They are the only ones empowered with a legal regime of things. Such types of benefits as property rights (legal claims) and obligations cannot be owned by a person on the basis of property rights. They may have the legal regime of objects of intellectual property relations, obligations, corporate relations, but not ownership or other property rights.

It has been established that property rights are not the only means of securing the assets of business entities. They may also be owned by the latter on the basis of other rights (e.g., obligatory rights). It has been proved that in this case, a business company is not an owner, but, for example, a lessee (tenant), a user under a loan agreement, a mortgage agreement as a mortgagor, etc.

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References

Antoniuk, O. I. (2016). Regarding the definition of “property” in the practice of the European Court of Human Rights. Research Papers of National University “Odessa Law Academy”, 18, 12-19.

Apanasenko, E. I. (2017). Protection of rights based on licenses and permits by the European Court of Human Rights. Proceedings of the Gomel State University named after F. Skorina, 2(101), 59-65.

Belianevych O. A. The concept of legitimate expectations and problems of its application by the Ukrainian courts. Private Law and Business, 13, 41-44.

Blazhivska, N. (2018). Interpretation of the concept of property in the practice of the European Court of Human Rights. Entrepreneurship, Economy and Law, 10, 219-223.

Dovhert, A. S., Kuznetsova, N. S., Khomenko, M. M. et al., 2020. The concept of updating the Civil Code of Ukraine. ArtEk.

Enneccerus, L., Nipperdey, H. C., & Kipp, T. et al. (1959). General part of the law. Rechtsobjekte.

Karnaukh, B. P. (2016). The concept of property in the context of Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Problems of Legality, 132, 205-214.

Karss-Frisk, M. (2004). The right to property: issues of implementation of Article 1 of the First Protocol to the European Convention on Human Rights. In O. L. Zhukovska (Ed.), European Convention on Human Rights: main provisions, practice of application, Ukrainian context (pp. 183-189). VIPOL.

Kuznietsova, N. (2016). Non-conventional Objects of Property Right in the Context of the Article 1 of the First Protocol of the Convention on the Protection of Human Rights and Fundamental Freedoms. Law of Ukraine, 1, 34-40.

Mahrelo, M. V. (2013). Concept of legitimate expectations v legal certainty: cause-effect or symbiotic relation? Scientific Papers of the Legislation Institute of the Verkhovna Rada of Ukraine, 3, 127-135.

Maidanyk, R. A. (2019). Property right. Alerta.

Nekit, K. H. (2018). Some problems of accounts іn socіal networks as objects of cіvіl cіrculatіon. Journal of the South Regional Center of National Academy of Legal Sciences of Ukraine, 16, 91-97.

Nekit, K. H. (2020). Protection of property rights on intangible assets in the practice of the European Court of Human Rights. Legal Novels, 10, 101-107. https://doi.org/10.32847/ln.2020.10.14.

Rozgon, O. V. (2016). The impact of decisions of the European Court of Human Rights on the definition of estate and the composition of estate. Eurasian Academic Research Journal, 4(4), 64-73.

Shymon, S. I. (2014). Theory of property rights as objects of civil legal relations. Yurinkom Inter.

Slipchenko, A. (2018). Alienation and transfer of objects of civil circulation in Ukraine: correlation of concept. Legea şi Viaţa, 10(322), 100-104.

Slipchenko, A. S. (2020). Definition of the property concept in EU law and domestic law. Forum of Law, 2, 122-130. http://doi.org/10.5281/zenodo.3883825.

Slipchenko, A. S. (2021). Understanding the property within the EU private law. Journal of Law and Social Sciences, 1, 32-36.

Slipchenko, S. O. (2020a). The concept of legitimate expectations as a kind of property. Forum of Law, 3, 66-76. http://doi.org/10.5281/zenodo.3883845.

Slipchenko, S. O. (2020b). Regarding the understanding of legitimate expectations as property. In I. V. Spasybo-Fatieieva (Ed.), Legitimate expectations (pp. 113-127). EKUS.

Slipchenko, S. O., & Zhornokui, Yu. M. (2020). Legitimate Expectations as an Object of Corporate Legal Relations. Bulletin of Kharkiv National University of Internal Affairs, 3(90), 50-62. https://doi.org/10.32631/v.2020.3.05.

Srivastava, A. K. (1995). Doctrine of “Legitimate Expectation”. J.T.R.I. Journal, 2. https://ijtr.nic.in/articles/art13.pdf.

Wilhelm, J. (2002). Sachenrecht. Berlin.

Zhukov, V. I. (1989). Legal regime of atypical objects of intellectual property. In Constitutional state. Problems of law making (pp. 191-197). Tartu.