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17
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
09
P
AGES
:
17-24
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
There is no distinction between legal capacity and legal capacity. Instead, the single concept of legal entity (legal
capacity) applies. True, in practice there is passive and active ability to deal. In other words, it is interpreted as the
ability to independently perform legal actions. Legal subjectivity is considered formally equal and, according to the
general rule, begins with the birth of a person and ends with his death. In the Anglo-American legal system, finding a
person missing and declaring him dead do not exist as independent legal institutions.
KEYWORDS
Distinction, legal capacity, legal entity, ability, independent, formally equal, Anglo-American legal system, independent
legal institutions.
INTRODUCTION
The non-validity of transactions is based on the fact
that the requirements established by law have been
violated. It is known that the invalidity of agreements
and contracts is defined differently in different legal
systems. In the continental legal system, the invalidity
of transactions is based on the grounds provided for in
the legislation, and if the invalidity is not provided for
in the legislation, such transactions are considered
valid even though they are not provided for in the
legislation. However, in the Anglo-American legal
system, judicial precedent applies to the invalidity of
contracts and their legal consequences, and even
today, the judicial practice of two or three hundred
years ago is used concerning the invalidity of certain
types of contracts. Therefore, we will reveal the legal
consequences of the non-validity of transactions in
foreign countries by analyzing the legislation and
Research Article
COMPARATIVE ANALYSIS OF FOREIGN EXPERIENCE ON INVALIDITY OF
CORRUPT DEAL
Submission Date:
Sep 20, 2024,
Accepted Date:
Sep 25, 2024,
Published Date:
Sep 30, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue09-04
Yusupov Uktambay Absamadovich
Independent researcher of the Academy of Law Enforcement, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 09-2024
18
International Journal Of Law And Criminology
(ISSN
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VOLUME
04
ISSUE
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17-24
OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
practice of the countries belonging to these two legal
systems.
The continental legal system is mainly based on the
laws of two countries, France and Germany. The
French Napoleonic Civil Code of 1804 provided for the
grounds of invalidity of contracts.
It should be noted that the French Civil Code adopted
in 1804 plays an important role in the codification of the
civil law of the countries of the world, and it is called
institutional (adopted from the institutions of the
ordinary textbook on Roman law, which is part of
Justinian's codification).
In French civil law, there are no special rules on
agreements and their invalidity. Since French civil law
is based on an institutional system, the rules related to
transactions are covered within each institution.
However, in Chapter II of Title III of the French FC "On
Contracts or Contracts of Obligations" entitled
"Conditions Important for Ensuring the Legality of the
Agreement", Part I, called "On Agreements", provides
for the agreement in concluding a contract and its
validity. In particular, according to article 1109 of the
French FC, if consent to an agreement was obtained by
mistake or by force or deception, it is considered that
there was no such agreement in practice. According to
Article 1110, if the mistake relates to the essence of the
subject matter of the agreement, it leads to the
cancellation of the agreement.
The coercion committed against the obligee leads to
the invalidity of the contract, although such coercion is
used by a third party in favor of the person entering
into the contract (Article 1111).
Violence is an act whose purpose is to affect a
reasonable person in such a way that, as a result, the
person is put in fear and causes significant and real
damage to his life and health. In this case, the person's
age, gender and status are taken into account (Article
1112).
Coercion leads to the invalidity of the contract not only
when the contract is committed against one of the
parties, but also when it is committed against the
husband or wife of the contracting parties, their
relatives, the contract is considered invalid (Article
1113).
Fraud can cause the agreement to be invalid if it is clear
from the actions of one of the parties that he does not
intend to enter into the contract. Fraud, as a rule, is not
provided and does not require proof.
In French law, special attention is paid to the will and
its form as a type of unilateral agreement, and the
grounds for invalidating the will. In testamentary
succession, the inheritance goes to the persons named
in the will. A will can be drawn up in different forms - a
written will be written by the testator's hand, a will
solemnly announced in the presence (with the
participation) of a state official (notary), to be kept in
the presence of witnesses, a certain order of heirs is
determined in succession according to the law
(discharges, protocols). ), which means that when
there is a line of heirs who are closer to the bequeather,
the remaining heirs are not called to the inheritance.
In France, the law (article 968 FC) directly prohibits
both joint and mutual wills.
The legislation provides for the following basic forms
of a will.
A will in the form of a public document - a will is drawn
up in the presence of an official (usually a notary)
according to the procedure established by law (in
France, a will is drawn up in the presence of two
notaries or two witnesses). The main priority of this
form is that the validity of the will is guaranteed and
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the content of the will is made in full compliance with
the will of the testator. Preservation of the will is
ensured by formal delivery to a notary or other official,
as provided by law.
A confidential will is drawn up and signed by the
testator and submitted to a notary public in the
presence of witnesses, usually in a sealed folder. This
form preserves the confidentiality of the will and it is
directly stated in French and German legislation
(Articles 969 and 1007 of the FC) (GFT paragraph 2232).
Article 3 of the French FC uses the term "capacity" to
mean capacity and legal capacity. At the same time,
this term also means the ability to enter into a
transaction. Article 488 of the Civil Code reflects the
norm that an adult citizen is capable of all acts of civil
life. In judicial practice and legal literature, capacity for
dealing (capacity d.exercice) and legal capacity
(capacity de puissance) are distinguished from each
other.
Mandatory requirements for the registration of
business entities are defined in the laws. They are
usually recorded in commercial registers maintained by
courts or administrative authorities. For example, in
France, such registers are maintained by commercial
courts.
Issues related to the invalidity of contracts are defined
in the FFK mainly in connection with the invalidity of
marriage. In this case, if the form of the transaction and
the ability to enter into the transaction are not
observed, the rules of invalidity of such transactions
are established. Also, it is stipulated that the
agreements made deliberately contrary to the
requirements of legal acts and rules of law and ethics
are invalid, and the things received or may be received
by the parties under such agreements shall be
collected for the benefit of the state.
The legal system of the Federal Republic of Germany
(FRG) is a member of the Romano-Germanic legal
family and serves as a foundation for its creation. The
content of civil legislation of the GFR is determined by
the peculiarities of the socio-economic model of this
country. Basic economic relations (first of all, property
relations) are strengthened at the Constitutional level.
Article 20, Part 1 of the Federal Republic of Germany
adopted on May 23, 1949 and amended on May 20,
1997 states that "The Federal Republic of Germany is a
social and democratic republic." According to Article
14, Part 1 of the Constitution, "Property rights and
inheritance rights are guaranteed. The content and
procedure of their use shall be determined by the law",
in part 2, "Property rights shall be borne by the owner.
In the use of property, common interests should be
taken into account, and in part 3 of the article, it is
confirmed that "Compulsory alienation of property
from an individual is allowed only to satisfy public
interests." GFR exists today in the form of a final social
model that needs to be confirmed as a result of long
historical reforms. Consequently, the FRG has already
made a significant contribution to the foundation of
continental law in addition to having its stable civil law
a century ago. The main source of German civil law is
the German Civil Code (Code), which was adopted on
August 18, 1896 and entered into force on January 1,
1900. In this code (law), the major sections of the civil
law are compiled in the form of a book and it consists
of 5 books, i.e. the general part, the law of obligations,
the law of property, the law of family, and the law of
inheritance. Along with the French civil code, German
civil law had a great influence on the formation of
continental civil law.
In addition to the German Civil Code (Tuzuki), "On Joint
Stock Companies" adopted on September 6, 1965, "On
Bills of Exchange and Checks" of 1933, "On Basic Terms
of Contracts" of December 9, 1978, "On April 14, 1974"
"On personal and property insurance" and other legal
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documents also serve as a source of civil law. At the
moment, in the German civil legal system, which
determines the civil-legal status of a person in society,
the fact that his legal capacity is established at the age
of 21 is also characteristic. But at the same time,
according to Article 476 of the GFT, marriage of a
person under the age of 21 or emancipation of a person
according to Article 478 of the GFT allows him to have
full legal capacity.
The third section of the first book of the GFT is called
"transactions" and it sets out a number of rules dealing
with transactions that are not valid per se. First of all, it
stipulates the norms regarding legal capacity, and
states that citizens who do not have legal capacity do
not have legal capacity, and the agreement concluded
by them is invalid. In particular, according to Article 105
of the GFT, the expression of the free will of an
incapacitated person is invalid by itself.
As one of the grounds for finding the transaction
invalid, Article 125 of the GFT stipulates non-
compliance with the form of the transaction required
by law. Failure to comply with the form specified in the
contract itself will result in its invalidity in the event of
a dispute in this regard.
Agreements concluded without compliance with the
requirements of the law are grounds for finding the
agreement invalid. According to Article 134 of the GFT,
an agreement that violates the prohibition established
by law is invalid by itself, unless otherwise established
by law.
According to Article 138 of the GFT, an unethical
transaction is void per se.
In particular, a transaction made by a person using
another person's shameless state, inexperience,
lightness or lack of will to promise him a service or for
the property benefit of himself or a third party is invalid
by itself.
According to Article 141 of the GFT, if the person who
entered into an invalid transaction confirms it, this
situation is considered a new transaction.
If the parties approve an invalid contract, then they
must give each other what they would have received if
the contract had been considered valid since the
conclusion of the contract.
It should be noted that in the countries that are part of
the continental legal system, there is a difference
between the fact that the agreements are considered
invalid and not concluded (non-existent). Of course,
such a distinction was not understood in Roman law
and medieval law. Until then, the documents on the
invalidity of the transaction itself contained
instructions that were considered not concluded. The
separation of the status of "inauthentic - considered
unconstitutional" was caused by the practical need
that arose in the field of legal regulation of marriage in
France in the 19th century. At that time, the principle of
"pas de nullites sans texte" ("there is no nullity without
a text", that is, the absence of this rule if the law does
not explicitly state this) was in force in France. The
strict application of this principle may lead to very
illogical consequences in some cases, for example,
marriages between humans and animals were allowed,
since there was no specific prohibition on this in the
law. In order to eliminate this situation, the rule of
unstructured marriage was created in doctrine and
practice, and it began to be applied to all types of
contracts
at
a
constant
pace.
Therefore,
"unstructured" became a form of disorder and was
equated with the consequences of inauthenticity in
itself. Today, the concept of non-constitutionality and
non-individual invalidity goes beyond the French
doctrine and is used in the laws of Germany and Italy.
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In these countries, it is considered that a contract that
is not valid per se is not concluded and the same
consequences are applied to them.
The approach to further clarification of the distinction
between invalid and conflicting contracts is almost
identical in French and Italian law (in Italy, the
Napoleonic Code was sometimes directly applicable,
and the Italian codice civile adopted in 1865 was
practically a copied copy of the Napoleonic Code, later
in Italy the Italian Civil Code was adopted in 1942). In
this country, the rules of invalidity of the contract show
that the rules set out in French and German law are
expressed in a mixed situation.
The provisions of Chapters X-XIII of the Italian Civil
Code are directly devoted to the invalidity of contracts,
in which contracts concluded by a person incapable of
dealing, contracts concluded contrary to the rules of
law and ethics, contracts concluded for negligence and
many similar contracts concluded contrary to the
requirements of the law are valid. it is implied that it is
not.
Although the general range of sources in the English
legal system is the same - statutes, case law, customs,
their proportions vary.
Although more laws are passed in later times, they do
not play the same role in the legal system as in the
continental legal system. In England, there are no
codified civil law documents - codes. Laws were
adopted regarding separate institutions of civil law -
legal entities, property rights, trade, etc., but they
were not systematized. There are only documents that
are systematized to one degree or another, but still
they only concern some institutions of civil law.
Even today, English law continues to develop under the
decisive influence of case law. If in continental law, the
creation of regional and strict systematic norms is
considered to be not very suitable for the practice
needs of the lawyer, while the lawyer of the English
system is ready to follow every path of the practice.
Doctrine develops casuistically by generalizing
individual precedents.
In English law, the rules about persons are divided into
rules for natural and legal persons. Regulation of the
legal subject of individuals is not very clear in positive
law. The main attention is focused on the content of
the components of the subject of law, which are
needed in practice.
There is no distinction between legal capacity and legal
capacity. Instead, the single concept of legal entity
(legal capacity) applies. True, in practice there is
passive and active ability to deal. In other words, it is
interpreted as the ability to independently perform
legal actions. Legal subjectivity is considered formally
equal and, according to the general rule, begins with
the birth of a person and ends with his death. In the
Anglo-American legal system, finding a person missing
and declaring him dead do not exist as independent
legal institutions.
When it comes to legal entities, it is worth noting that
their essence has not been developed enough. Instead
of the universal category of legal entities, there are two
main
types
of
legal
entities,
partnerships
(partnerships) and companies (in the UK) or
corporations (in the US, public corporations in the UK).
There are several types of companies, they mainly
differ from each other in terms of company
obligations,
debts,
and
liability
of
partners
(participants). Limited partnerships are not legal
entities. One of the types of companies is a limited
partnership company, which is a legal entity.
Property (property and ownership). This is one of the
most basic, important concepts of English law.
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Material law does not exist as a system of norms aimed
at regulating the relations of persons to objects.
"Property" is replaced by "property". The rights of the
owner in relation to his property and the property of
others are also included in the property right.
According to the continental legal system, immovable
property is also not considered a right to its object,
because the state is the supreme owner of the land. In
this sense, not every owner of land is an owner.
The division of property rights is allowed not only
horizontally - in space, but also vertically - in time. For
example, one owner has the right to receive income
from the rental of a plot of land, while another has the
right to receive income from its use. Some property
can be given to one owner for life, it can be given to
another owner only after his death, in both cases it is
about the right of ownership that is divided between
current and future owners. Therefore, the content of
these different property rights is determined by the
original will of the owner or the agreement of the
owners.
Property is interpreted in a very broad sense. In
addition to traditional rights, it also includes certain
claim rights (for example, rights to pensions,
allowances, alimony, etc.), absolute rights, especially if
they can be alienated (intellectual property). Thinking
in this place is related to the following logical
conditions: if the right can be alienated, although it has
its own characteristics, it is considered a thing,
therefore, it can be an object of property.
In 1985, housing law reforms were carried out in
England. The main piece of legislation is the Housing
Act 1985 (HousingAct 2004).
In England, the law governing property rights defines
the transfer of land and fixtures from one person to
another,
and
this
right
is
protected
(ThelawofPropertyAct 1925, LandlordandtenantAct,
1985).
Under Section 1 of the English Companies Act, two or
more persons can register a company for statutory
purposes. The company is formed at the expense of
the funds contributed by the founders in return for
taking the share.
The above-mentioned features of the interpretation of
property in the English legal system are clearly
manifested in the trust. The essence of the trust
property is that the founder of the trust - the original
owner (stilor) transfers the property to the trustee, the
trustee must transfer the property or income obtained
as a result of the use of this property to the beneficiary
(beneficiary). As a beneficiary, the trust institution can
also be third parties (the public in the broad sense, the
crowd). Both the trustee and beneficiary are owners,
but their rights differ in scope. If the trustee manages
(uses) the property entrusted to him, the beneficiary
has the right to receive income and return the item.
The scope of the rights of each owner may change
depending on the conditions under which the trust was
established (it may be established by law, contract or
unilateral agreement). For example, the trustee may
be given the right to distribute or not distribute a share
of the proceeds to the beneficiary. At the same time, it
is also possible to have such a trust property, within the
framework of which this right can be terminated at any
time and the object can be taken back. Therefore, such
a "rubber" construction of the trust can be introduced
and modified in various forms. For this reason, it is used
in the most unexpected situations - in cases of unjust
enrichment, between the company and its directors,
principal and agent, succession and similar relations.
However, his main appointment and task is to ensure
effective management of the property of persons who
do not want or are unable to manage their own
property. In the same sense and for the same reasons,
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this construction is being adopted by other legal
systems.
Any party interested in canceling the contract can
apply to the court with a request to cancel the contract
in the following situations:
- when the other party rejects the proposal to change
or cancel the agreement;
- when a response is not received within the period
specified in the offer;
- when the answer is not received within the period
specified by the law or the contract.
Also, Article 116 of the FC contains a provision about a
transaction that is not valid by itself. According to it, an
agreement with content that does not comply with the
requirements of legal documents, as well as an
agreement made with a purpose against the principles
of law, order or morality, is invalid by itself. It is
important and appropriate to have such a general
provision in the law. In order to consider the
transaction as controversial, it depends on whether it
is not concluded by the law and is recognized by the
court based on the claim of the interested party. If an
invalid agreement by itself is considered invalid from
the moment of its conclusion, regardless of whether or
not they file a lawsuit, the disputed agreement may be
considered by the court based on the claim of the
parties and declared invalid by the court's decision. The
disputed agreement is considered valid until it is
declared invalid by the court, and its continuation
ceases to be valid in the future from the time when it is
declared invalid by the court. Making an unreal deal is
considered an illegal act and causes certain negative
legal consequences.
If the request to declare the disputed transaction
invalid can be made by the persons specified in this
code, any interested person can request to apply the
consequences of invalidity of the invalid transaction.
The court may apply such consequences to its
initiative.
In the current civil code, a three-year statute of
limitations for the invalidity of transactions is
established, and in the civil legislation of the Russian
Federation, unlike disputed transactions, an extended
statute of limitations is provided for self-invalid
transactions, which is set at 10 years. Based on this
case, it would be appropriate to introduce an extended
period of action for the invalidity of contracts to the FC
as well.
Also, the requirements for the annulment of the
contract are different.
This difference can be seen in the fact that, first of all,
when it is disputed that the agreement is invalid, it is
illegal, and various circumstances require the
cancellation of the agreement regardless of its legality.
Also, cancellation of the contract only results in the
cancellation of future obligations and does not
eliminate the rights and obligations that arose during
the contract's validity.
If the statute of limitations for annulment of the
contract is established, it is not limited by any time limit
and can be filed at any time during the contract's
validity.
To ensure the uniform application of legal
requirements by the courts in the resolution of
disputes related to transactions, on December 22,
2006, Plenum Decision No. 17 "On some issues arising
in the application of legal norms regulating
transactions in judicial practice" was adopted, in which
the transactions are invalid, detailed guidance
explanations were provided to the courts regarding
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the correct application of legal norms in resolving
disputes related to the termination of the agreement.
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