The article is devoted to the study of the peculiarities of requisition under conditions of martial law. It is emphasized that despite the principle of inviolability of property rights, the possibility of forced alienation of property rights is enshrined at the legislative level. It was established that in order to determine the legality of interference with the right of private property through requisition, it is necessary to take into account the criteria of the three-fold test: the legality of the interference, public necessity and proportionality. The position of scientists who claim that the basis of requisition under martial law is the legal structure is supported. On the basis of the analysis of the legislative provisions, the main features inherent in requisitions are identified: is aimed at satisfying public interests; is carried out under the condition of occurrence or probability of occurrence of extraordinary circumstances; is conducted administratively, not judicially; a special entity authorized to make a decision on forced alienation; is the basis for the emergence of the right of state ownership and the termination of the right of private ownership; has a compensatory nature (preliminary or subsequent reimbursement of the cost); after the cessation of extraordinary circumstances, the former owner has the right to demand the return of requisitioned property, if it is preserved. It is emphasized that the requisition must be accompanied by clear documentation: to confirm the fact of forced alienation of property, an act is drawn up, an integral appendix to which is a document containing a conclusion on the value of the property. It was established that the moment of termination of the ownership right of the owner and its occurrence in the state is connected with the date of signing the act of forced alienation of property. It has been established that the object of requisition can be both individually determined property and property endowed with ancestral characteristics. Therefore, it is proposed to unify the provisions of the Law of Ukraine "On Transfer, Expropriation or Seizure of Property under the Legal Order of Martial Law or State of Emergency" with the provisions of the Civil Code of Ukraine. It is emphasized that despite the absence of a direct instruction in the Land Code of Ukraine, requisition is one of the reasons for the forced termination of ownership of land plots. It was concluded that requisition is the basis for terminating not only ownership rights, but also real rights to someone else's property. It was determined that the owner can challenge the assessment of requisitioned property by filing a claim for reimbursement of its value. The specifics of the return of property that was forcibly alienated against the will of the owner are disclosed. It was established that the dispute about the appeal of acts of forced alienation is a matter of private law, since there is an encroachment on a person's property right.
In order to increase the material benefits, in order not to pay taxes or to pay less, in order to conceal information and for other purposes, the parties entering into legal relations become participants in mock transactions. The practise of mock transactions is to replace the conclusion of a single document, such as a sale one, with the conclusion of a contract of charitable contribution. The practise of using mock transactions is quite common and it is almost impossible to prove the nature of the transaction. Therefore, this work is aimed at investigating the institution of the mock transaction, as well as to develop recommendations for the practical application of the rules governing this institution. To conduct this study, the materials of the practise of dispute resolution on the application of the consequences of fictitious transactions by the courts of Ukraine, the dialectical method of cognition, the formal-legal method, the hermeneutic-legal method were used. As a result of research the signs of mock transactions, approaches of detection of fictitious transactions are established. It can be concluded that the distinguishing feature of fictitious and mock transactions is the orientation of the will of the parties to the transaction on the occurrence of legal consequences.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.
customersupport@researchsolutions.com
10624 S. Eastern Ave., Ste. A-614
Henderson, NV 89052, USA
Copyright © 2024 scite LLC. All rights reserved.
Made with 💙 for researchers
Part of the Research Solutions Family.