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Posiadanie w prawie karnym i cywilnym – czy dzierżyciel i prekarzysta może być pokrzywdzonym przestępstwem kradzieży?

100%

Tyburcy T.

Opolskie Studia Administracyjno-Prawne

2018

vol. 16

issue 2

229-242

The structure of ownership in civil law consists of two elements. The first is the element of physical wielding (corpus possesionis), and the second is a psychological (subjective) element; constituted by a presumption in favour of possession – one is always presumed to possess in his own interest (animus rem sibi habendi). Legal possession is the detention (control) or enjoyment of property or right that we hold or exercise by ourselves. Having control over property for someone else is defined in civil law as holding (Art. 338 of the Civil Code), which concerns the realization of a certain task. Possession as a factual status is protected by Art. 278 § 1 K. K. and should be interpreted more broadly than within the civil law definition. It constitutes an actual control over a movable property, which can also be exercised by a holder acting on his own behalf (commissionaire), who is not the possessor within the definition of the civil law. In contrast, it appears that a holder not acting on his own behalf (employee) is not protected by Art. 278 § 1 K. K. It seems erroneous that the protection of unlawful possession in Art. 278 § 1 K. K. depends on the good faith of the holder. Another questionable issue is granting protection for the permissive occupant in Art. 278 § 1 K. K. There is very little attention devoted to this problem both in the case-law as well as literature. It seems that permissive occupant does not attain the control over property, because his actual relationship to it is not an expression of the will of detentor, and therefore he cannot be a victim of theft.

Legislation on Intellectual Property in the Russian Federation: Novels Introduced in 2014

85%

Gavrilov E. P.

Creative and Knowledge Society

2015

vol. 5

issue 2

1-10

Purpose of this article is to tell foreign readers about novels made in Russian intellectual property law in 2014. As is known modern Russian revolution in the field of intellectual property legislation occurred January 1, 2008 when Russian intellectual property legislation was codified, included in the text of part fourth of the Civil Code (CC) of the Russian Federation. Part fourth of the Russian CC (Federal law №230-FZ, 2006) entered into force on January 1, 2008. At the same day seven sectoral intellectual property laws were repealed. Second Revolution in this field took place during 2014: Federal law №35-FZ, 2014, substantially amending the Fourth part on the CC, entered into force on October the 1st of 2014. Scientific aim: The essence and evaluation of these amendments is the subject matter of this paper. Methods: The research is based on the analysis of the new amendments and articles added to the part fourth of the CC. Findings: Codification of the sectoral legislation en bloc in CC is a unique phenomenon. The author believes that such a construction of intellectual property law was made correctly and at the proper time. Factually the Federal Law №35-FZ (2014) is the eleventh law amending the text of the part fourth of the CC. But all previous amendments were small and not substantial. As far as amendments introduced by the law №35-FZ (2014) are concerned, they are numerous and very, very substantial. Before entering into force of the law №35-FZ (2014) (thereafter – law 35-FZ), the Part fourth of the CC contained 328 articles. The law 35-FZ amends 169 articles of it and adds seven new articles. I am convinced that the law is a rather big step towards building a modern system of intellectual property legislation in Russia. Conclusions: More than 150 amendments were introduced by the law №35-FZ. Author estimates about 80% of them as positive and about 20% as negative and erroneous. These amendments do not contradict the international intellectual property agreements signed by the Russian Federation. Generally their purpose is to enhance and clarify the Russian intellectual property legislation and to narrow the gap between Russian and European intellectual property laws. The author of this article deals with intellectual property laws more than 50 years on. This paper is a short English version of various articles on this topic published in Russian, in journals: «The business and the law» (Chozjaistvo i pravo) and «The patents and licenses» (Patenti i licenzii).

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1 Creative and Knowledge Society

1 Opolskie Studia Administracyjno-Prawne

1 Gavrilov E. P.

1 Tyburcy T.

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Posiadanie w prawie karnym i cywilnym – czy dzierżyciel i prekarzysta może być pokrzywdzonym przestępstwem kradzieży?

Legislation on Intellectual Property in the Russian Federation: Novels Introduced in 2014