CC BY
1
DOI: https://doi.org/10.30525/2256-0742/2023-9-1-124-134
MODERNISATION OF THE LEGAL REGULATION OF TEMPORARY RESTRICTIONS ON THE EXERCISE OF PRIVATE RIGHTS IN UKRAINE ON THE WAY TO ECONOMIC INTEGRATION
Viktor Makovii1, Andrii Kuchuk2, Liudmyla Filianina3
Abstract. The subject of the study is the theoretical and applied aspects of legal regulation of certain economic relations, in particular, the temporal restrictions on the implementation of private rights in Ukraine. Methodology. General scientific and special legal methods were used in the research process. Quantitative and qualitative parameters of organisational, legal and economic measures aimed at modernising the legal regulation of time limits on the exercise of private rights in Ukraine were determined with the help of the analysis. The synthesis ensured the clarification of the common features of economic and legal phenomena, which is a precondition for the modernisation of the legal regulation of time limits for the exercise of private rights in Ukraine. The comparative legal method allowed to identify common and specific features of the normative regulation of time limits on the exercise of private rights in different states (taking into account legal and economic features). The formal-legal method made it possible to draw conclusions on the effectiveness of the normative fixing of time limits on the exercise of private rights in the civil legislation of Ukraine and to make relevant proposals for changes in the civil legislation. The purpose of the study is to determine the state of legal regulation of time limitations on the exercise of private rights in Ukraine and to determine the prospects of its modernisationfor the sake of economic integration (through the study of legal and economic aspects of the specified phenomenon). The results of the study showed that the state of legal regulation of time limits on the implementation of private rights in Ukraine on the way to economic integration creates the conditions for its modernisation within the framework of general and special legal regulations. Conclusion. The basis of the civilised development of the modern world community is the establishment of civilised rules for the circulation of relevant property goods. From this point of view, among the social relations that are the subject of civil law regulation, the most important are property rights and non-property rights related to them (which have no economic significance, but by their very nature play an important role in ensuring civil circulation). The Civil Code of any state is a basic legislative act regulating a significant part of social relations. The modernisation of temporal categories in various institutions of civil law can be characterised from the standpoint of the concept of updating the Civil Code of Ukraine, as well as from the study of the state and the need for improvement of other legal structures, in particular, from the standpoint of international jurisprudence. The temporal characteristics of the law are characterised through the prism of the limitation of the subjective right to intellectual property, which is generally consistent with the normative prescriptions contained in intellectual property law as a subdivision of civil law. The problematic aspects of the unification of intellectual property relations in the general provisions of the Civil Code of Ukraine and special legislation are identified, and proposals for the legal regulation of such relations are made in the light of international legislation, judicial practice and legal doctrine.
Key words: temporal values, time, economic content, statutory limitations, prescription, time.
JEL Classification: E22, K12, K15
1 Odessa State University of Internal Affairs, Ukraine (corresponding author) E-mail: makoviy09@i.ua
ORCID: https://orcid.org/0000-0002-6847-2309
2 Sumy State Pedagogical University named after A.S. Makarenko, Ukraine E-mail: kucshuk@ukr.net
ORCID: https://orcid.org/0000-0002-5918-2035
3 University of Customs and Finance, Ukraine E-mail: filyanina.la@gmail.com
ORCID : https://orcid.org/0000-0002-8805-5510
This is an Open Access article, distributed under the terms of the Creative Commons Attribution CC BY 4.0
1. Introduction
In the conditions of globalisation of all social phenomena of the modern world, the issue of interpénétration of cultures, rules of behaviour, ethnic customs and values becomes almost the most decisive factor in the development of the world economy. At the same time, the normative and legal support of such processes, which directly or indirectly promote the exchange of various goods ensuring the satisfaction of the needs of individuals, groups of people and peoples, is in the forefront. Even a cursory analysis of the statistical data on the world turnover of all property and non-property goods creates the preconditions for finding and analysing their origin, ensuring the conditions for their fastest possible transfer from one subject to another in order to mutually satisfy the needs of the participants of such relations.
Undoubtedly, in any modern state, the primary place in the regulation of the above-mentioned processes is occupied by private law, which is intended to create the basis for the civilised development of social relations, based on the statement of Immanuel Kant, the famous German philosopher and jurist, regarding the freedom of individual behaviour as the sphere of manifestation of the self-regulating nature of private law: "The arbitrariness of one person ends where the arbitrariness of another begins". An important place among the institutions of private law is thus given to legal structures that ensure compliance with a certain compromise between the interests of the various participants in social relations. Among these formations, time values occupy an important place.
Ukraine's accession to a number of international treaties and international organisations, which provide for civilised forms of mutual exchange of goods of various kinds and value, has contributed to the renewal or modernisation of both the national legal system and private law of Ukraine. Among such measures of a legal nature, it is necessary to note the adoption of the Civil Code of Ukraine (The Civil Code of Ukraine as amended on 1 January 2023, № 435-IV), the Law of Ukraine "On Copyright and Related Rights" (On Copyright and Related Rights: Law of Ukraine as amended on 1 December 2023, № 2811-IX), Law of Ukraine "On Joint Stock Companies" (On Joint Stock Companies: Law of Ukraine as amended on 1 January 2023, № 2465-IX), Law of Ukraine "On Limited and Additional Liability Companies" (On Limited and Additional Liability Companies: Law of Ukraine as amended on 1 January 2023, № 2275-VIII) and others.
The most relevant and urgently necessary in modern conditions is the development by the authors'
association of scientists in the field of civil law, made in accordance with the Resolution of the Cabinet of Ministers of Ukraine dated 17 July 2019 № 650 (On the Formation of a Working Group on the Recodification (Updating) of the Civil Code of Ukraine: Resolution of the Cabinet of Ministers of Ukraine dated July 17, 2019 № 650), the cornerstone document of an organisational and legal nature - the Concept of the renewal of the Civil Code of Ukraine. The document contains the conceptual provisions on civil and legal norms according to the requirements of modernity and challenges of European integration of global changes taking place in Ukraine.
These problems have been considered by many scientists in the field of civil law. Among them there are articles on: the nature of modernisation of civil law institutions (Stefanchuk, 2021), the content of improvement of civil law norms in the structure of all social transformations of Ukrainian society (Spasibo-Fateeva, 2019), the general nature of time and limitation periods in civil law and modernisation of relevant provisions of civil law (Luts, 2013). Shyshka (Shyshka et al., 2022) deals with issues of implementation of European experience in the sphere of modernization of civil legislation of Ukraine. When analysing the content of the modernisation of the private legislation of Ukraine regulating public relations with the participation of a foreign element, attention is paid to the issue of the implementation of the main principles of European conflict regulation and the formation of new conflict approaches in the implementation of the corresponding legal mechanism (Erpyleva, Get'man-Pavlova, 2016).
The above-mentioned facts and studies update the knowledge about the novelty of the temporal restrictions on the exercise of private rights in the normative regulations of civil law for the benefit of the economic well-being of the Ukrainian people.
2. Economic and legal principles of private law modernisation in Ukraine
Civil law institutions directly provide a static and dynamic component of economic turnover, which is mediated by the determination of the legal regime of a number of property and non-property goods, in relation to which civil legal relations are created, modified and terminated.
The study of international legal instruments leads to the following conclusions The Universal Declaration of Human Rights (1948), in addition to the inalienable human rights that have no economic content, also includes rights that have a direct economic basis in this or that part. Among the latter
are the following rights: inviolability of the home (Article 12), ownership of certain property individually or jointly with another person (Article 17), inviolability of such property (Article 17). The Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1950) also contains relevant provisions that provide an appropriate basis for the implementation of individual rights with economic significance.
At the level of national legislation, similar provisions can be found, for example, in the Constitution of Ukraine (1996): Art. 13 (property), Art. 30 (right to inviolability of the home), Art. 41 (right to ownership and to the results of intellectual and creative activity), Art. 42 (right to carry on business), Art. 43 (right to work), Art. 47 (right to housing), Art. 48 (right to an adequate standard of living), etc.
However, the Civil Code of Ukraine is the most universal and provides the legal basis for the existence of a number of rights with an economic content at the level of national legislation. Thus, according to the content of Art. 1 of the Civil Code of Ukraine, the subject of legal regulation of this regulatory act are personal non-property and property relations based on legal equality, free expression of will and property independence of their participants.
Since the precondition for the civilised development of the modern world community is the establishment of civilised rules for the circulation of relevant property goods, the most important of the given relations that are the subject of civil law regulation are property relations and related non-property relations, which do not have an economic meaning, but due to their specific nature play an important role in ensuring civil circulation. Thus, when studying the content of intellectual property rights, personal non-property rights are inseparable from the object itself, the value of which sometimes exceeds the value of this or that piece of real estate a thousand times. Accordingly, public relations, the content of which is the right to banking secrecy connected with the conclusion of a corresponding banking contract on certain currency values, are clearly distinguished from other non-property relations in connection with the significance for the property sphere of the authorised subject in case of their violation. Services, as a component of non-property goods, occupy the lion's share of the market in modern conditions. Similarly, the non-property nature of corporate relations in no way diminishes the importance of their normalisation, given the importance of the influence of the exercise of the relevant corporate rights on the movement of capital in the modern economy. Finally, the development
of technological solutions, such as cryptocurrency solutions, NFT objects, artificial intelligence, adequately ensures the capitalisation of goods over which non-property relations arise.
Property relations, the main purpose of which is to ensure a civilised legal regime of the relevant property goods by means of their static attachment to a certain subject and the possibility of changing the ownership of such goods, mediating the dynamics of civil turnover. The analysis of civil law norms shows that they cover a range of property relations, including: structures of property law, legal institutions of obligation, legal instruments of inheritance law, etc.
The study of the statistics of economic indicators in the conditions of the globalisation of the world market on the example of venture investments shows the following. It should be noted that this type of investment is the most significant, as it involves investment in relevant, innovative, "young" projects, which offer the possibility of obtaining maximum profit when invested in pioneering programmes supported by business, the state and other social institutions due to their relevance and need within society. In this respect, the venture capital movement is more globalised due to the extreme dynamism of the means for its implementation, the possibility of using various innovations in the field and the flow of so-called cryptocurrency capital from it.
The available analytical materials speak of the prospect of growth of this market segment from $173.5 billion in 2021 to $1,068.5 billion in 2031, where the annual growth of such capital should be more than 20% (Pradeep et al., 2022). At the same time, the qualitative characteristics of the distribution of this capital are also changing: if yesterday the spheres of its manifestation were construction, trade, hotels and tourism, processing of agricultural products, insurance and informatisation, in the future it is planned that computer and consumer electronics, communication, natural sciences and energy spheres, etc. will prevail. Today, people are already witnessing the prioritisation of areas such as the development of artificial intelligence, cloud and blockchain technologies.
The decisive factor was Ukraine's accession to the Marrakesh Agreement on the Establishment of the World Trade Organization (1994), which is aimed, inter alia, at creating the most favourable conditions for trade and economic activities aimed at raising the standard of living, ensuring full employment and significant and constant growth in real income and effective demand, and the expansion of production and trade in goods and services, taking into account the optimal use of the world's resources in accordance with the objectives of sustainable
development, seeking to protect and preserve the environment and improving the means to achieve this, in a manner consistent with their respective needs and interests at different levels of economic development. This event intensified the processes both within Ukraine and in the international legal space with its direct or indirect participation by means of relevant residents regarding the provision of civilised rules for the introduction, use and withdrawal of relevant goods into the economic turnover with elements of foreign origin by interest, subject, object and place of committing legally significant actions, etc.
The next significant step in the context of creating effective conditions for the development of the Ukrainian economy in conjunction with the economies of neighbouring states, primarily the European Union, was the state's course towards European integration, which was embodied in the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other (Association Agreement, 2014).
The above has contributed to the fact that the processes of integration into the world community have extended the scope of all social relations, especially in the sphere of the circulation of certain property goods with a corresponding economic value. Therefore, the legal regulation of such social relations requires appropriate transformation, renewal and modernisation, taking into account the existing challenges.
Civil legislation contains the main instruments capable of accompanying the specified processes; moreover, they contain an interpolation construction in the sense of understanding the subject of legal regulation as an undefined circle of social relations, which, even without an indication in the relevant norms, are the subject of civil law itself. That is why, first of all, the modernisation of civil law norms through the implementation of the main achievements of the world community should ensure the economic integration of the Ukrainian community into the world space.
Thus, the integration of the Ukrainian society into the world, first of all into the European community, is directly connected with the economic processes taking place in Ukraine, the leading vector of which is the worldwide globalisation through the mutual exchange in various forms of relevant resources of a property and non-property nature, having a certain priority, first of all, economic value. Without proper legal transformations at the level of national legislation, such processes are doomed to failure; therefore, the relevant legal constructions are overdue and should be adequately implemented within the private, civil law framework.
3. Modernisation of the legal regulation of temporal restrictions on the exercise of private rights in modern conditions
As it was already mentioned, the Civil Code is the basic normative legal act ensuring the regulation of social relations in modern society in any state. Therefore, it is necessary to agree on the ability of such a document to solve any whims of a modern person, mediating the need for appropriate transformations of individual legal mechanisms to the existing challenges of everyday life (Spasibo-Fatyeyeva, 2019).
Among civil and legal institutions, time occupies a decisive place, since it serves to ensure and protect the rights of any participant in civil legal relations, and in particular of a person, regardless of his or her legal personality manifestation, by including temporal values as an element in the composition of the mechanism of legal regulation aimed at protecting the rights of society and other authorised persons, capable of influencing the narrowing of the content of subjective civil law and the complication of its implementation with the help of specific legislative prohibitions, obligations or permissions.
It is time as a temporal quantity, establishing certain restrictions on the exercise of civil rights and the performance of civil duties, which ensures the promptness of the behaviour of the subjects of civil law, determines the most optimal and effective way of implementing the dynamics of civil turnover, and thus mediates the most rational possibilities for the flow of economic processes in modern society. This formulation creates preconditions for the most optimal structuring of the mechanism of legal regulation of the given social relations, in the structure of which temporal restrictions have their proper place.
The temporal categories of modernisation in certain civil law institutions can be characterised from the standpoint of the mentioned concept of updating the Civil Code of Ukraine and the actual study of the state and the need for improvement of other legal structures in this sense, including from the standpoint of international jurisprudence (Makovii et al., 2022).
A cursory analysis of the concept of updating the Civil Code of Ukraine provides an opportunity to identify significant changes in the legal regulation of time values in civil legislation. The latter can be divided into general, applicable to all institutions of civil law, and specific, related to one or another legal category and phenomenon.
First of all, in Section V "Time and Statutory Limitation Periods" of Book I of the Civil Code of Ukraine, the following should be noted.
The definition of the statutory limitation period in the current version does not reflect its nature. Thus, under the statute of limitations, civil legislation
establishes a period of time within which a person may apply to court with a claim for protection of his or her violated, unrecognised or contested civil right or interest (Article 256 of the Civil Code of Ukraine). Such a definition cannot be called successful, since, taking into account the provisions of Part 2 of Art. 267 of the Civil Code of Ukraine, a person may bring an action in court even after the expiry of the statutory limitation period. It should be noted that the definition, albeit indirect, in Art. 177 of the Civil Code of the Republic of Kazakhstan, Art. 372.2 of the Civil Code of the Republic of Azerbaijan and Part 1 § 194 of the German Civil Code is more acceptable. This point of view is supported by a number of other scholars who, based on the analysis of the court practice, draw attention to the fact that the statutory limitation period should be connected with the right to satisfy a claim, but not with the right to file it (Luts, 2013).
The second relevant issue concerning the statutory limitation period that should be considered in connection with the definition of the statutory limitation period under the Civil Code of Ukraine is the issue of the beginning of the expiration of this type of statutory limitation period.
As a general rule, any civil term begins to run from the day following the corresponding calendar date or the occurrence of the event with which its commencement is connected (Article 253 of the Civil Code of Ukraine). For the statutory limitation period, such a starting point is defined in Art. 261 of the Civil Code of Ukraine.
In other words, the limitation period does not begin to run until the day after the day on which the person knew or could have known of the violation of his right or of the person who violated it. According to the authors, the definition of the starting point of the limitation period in the new domestic legislation is not sufficiently successful. The provision of Art. 261 of the Civil Code of Ukraine contains three circumstances which are conditions for the commencement of the statutory limitation period, the connection between which is based on disjunction. Unlike Part 1 of Art. 180 of the Civil Code of the Republic of Kazakhstan, Art. 377.1 of the Civil Code of the Republic of Azerbaijan, the specified norm of the present Civil Code of Ukraine is supplemented by another subjective element, which requires the knowledge of the person who violated his rights. In civil law, this provision has already been interpreted as follows: if a person learns of the violation of his or her right, the statutory limitation period begins to run from the day he or she learns of the entity that violated his or her right (Yarema, Karaban, Kryshchenko, Rotan et al., 2004).
However, such an interpretation does not correspond to the actual wording of this provision, because in it
the preposition "or" establishes a connection between the circumstances that constitute the beginning of the statutory limitation period, while the above interpretation is possible only in the presence of a conjunction, i.e., in the presence of the preposition "and". The latter proposals have also found indirect support in legal literature (Borisova, Spasibo-Fatyeyeva, Yarotskyi et al., 2004).
It should be noted that such a position does not have a positive prospect of application in connection with the following. According to Art. 9 of the Convention on the Limitation Period in the International Sale of Goods, the commencement of the limitation period is defined as the date on which the claim arises (Convention on the Limitation Period in the International Sale of Goods, 1974). The right of a person to sue arises from the moment when he learns or should have learnt of the infringement of his right, the latter reflecting the subjective moment of the creation of the right.
In view of the foregoing and of the fact that the purpose of the limitation period is to stabilise and regulate civil and legal relations, there is no need to establish an additional circumstance as the basis for the expiry of the limitation period, regardless of the nature of its connection with other circumstances. In fact, the possibility provided by Art. 261 of the Civil Code of Ukraine gives reason to speak about the uselessness of this element, since the knowledge of the subject who violated the civil right of the authorised person cannot be without the knowledge of the fact of violation. At the same time, if the preposition «and» is used in the aggregate of these circumstances, there will be a variant in which the limitation period will not expire due to the impossibility of identifying the direct violator of a subjective right, which is in contradiction with the above provisions on the limitation period.
In view of the above, in order to ensure the stability of civil legal relations, to eliminate their uncertainty, to encourage the entitled person to take active action and to clarify the legal field of application of the provisions, it is necessary to return to the definition of the beginning of the statutory limitation period as the day on which the person knew or could have known of the violation of his/her rights.
Incidentally, a similar legislative position on the commencement of the statutory limitation period is also contained in Art. 390 of the Merchant Shipping Code of Ukraine (No. 176/95-VR as amended on 1 January 1995) for claims for compensation for damage caused by pollution from ships and nuclear damage. Indirectly, this is also the case in Article 198 of the Civil Code, where the above-mentioned legal consequence arises from the moment when the authorised person's claim arises.
Accordingly, the provisions of Ukrainian civil legislation on other issues of application of the statutory limitation period should be amended. Thus, based on the results of the analysis of the provisions of the civil legislation of the Member States of the European Community regarding the suspension and interruption of the statutory limitation period, it is appropriate to consider the expansion of the grounds for the above structures by implementing the provisions of Articles 202-207, 208-216 of the Civil Code of Ukraine and the civil legislation of other states with appropriate grounds. Thus, it is positive to expand the range of grounds for interrupting the statutory limitation period due to the occurrence of circumstances similar to the recognition of a debt by a person or the filing of a lawsuit by a person, using as an example the use of mediation by the parties as an alternative form of dispute resolution, as is the case in Part 1 of Article 183 of the Civil Code of the Republic of Kazakhstan.
In view of the above, the title of this section could be "Time and Limitation. Prescription", which to some extent would correspond to the meaning of prescription among other categories of time. At the same time, Chapter 19 should be called "Prescription", anticipating the general definition of prescription as a period of time, the expiration of which is connected with the loss of the right to satisfy a claim to the court for the protection of a civil right or interest (legal prescription), or as a period of time, the expiration of which is connected with the emergence of a property right in the manner and under the conditions specified in Book III of the Central Committee of Ukraine (prescription).
Separately, it is necessary to establish the relationship between the statutory limitation period and the prescription period in terms of their definition, duration, beginning and end of the period, determination of the order of interruption and termination. It is proposed to introduce a presumption: unless the contrary is proved, it is assumed that the owner knew or should have known about the violation of his or her right from the moment of bona fide acquisition of the property by the previous owner. The duration of the limitation period should be the same as the maximum duration of the statutory limitation period. The question of the course, termination and interruption of the statutory limitation period and the prescription period by determining the priority of the latter has thus been agreed.
When characterising periods, it is important to determine the beginning and the end of their course. In the case of prescribed periods, in accordance with Part 1 of Art. 254 of the Civil Code of Ukraine, the final moment of their course is the corresponding month, the day of the last year of the period. That is, in the case of movable property it is the corresponding
day of the corresponding month of the 5th year of the period.
Art. 253 of the Civil Code of Ukraine stipulates that a time limit shall begin to run from the day following the calendar date or the day of the occurrence of the event connected with its commencement. In the case of a statute of limitations, the starting point of time is, of course, the day following the day of taking possession of another person's property without a proper and bona fide reason. If the property is possessed on a legal basis (contract), the limitation period begins to run on the day following the day on which the legal limitation period for claiming this property has expired.
Taking into account the definition of the concept of "acquisition" for the limitation period as a valid action, it would probably be more expedient to quote Art. 253 of the Civil Code of Ukraine as follows:
1. "The limitation period shall commence on the day following the calendar date, the occurrence of the event or the performance of the act with which its commencement is connected".
Within the framework of the legal regulation of the prescription period, the possibility of amending Art. 119 of the Land Code of Ukraine (the Land Code of Ukraine as amended on 19 November 2022, No. 2768-III) with legal entities as well as natural persons as subjects of acquisition of rights to real estate by prescription. Accordingly, in order to regulate the issue of acquiring the title to a land plot in connection with acquiring the title to a building located thereon, it is necessary to supplement the provisions of Art. 119 of the Land Code of Ukraine.
Secondly, the detailed provisions of the concept in the context of almost all civil law structures, starting from the personal non-property rights of individuals and legal entities and ending with the normative prescriptions of inheritance law, testify to the same, the need to rethink the place of time values in the mechanism of legal regulation of the relevant social relations in favour of civil turnover and to create an optimal model of legal protection of the rights and legitimate interests of the participants in such socially determined relations.
Taking into account the commercialisation of intellectual property, which is a crucial factor today (Medvedenko, Vitvitskyi, Arapaki, 2022), the issue of defining the temporal limits of the implementation of the content of intellectual property rights and their corresponding modernisation is quite demanding.
Time values in the context of intellectual property law can be considered in terms of the following stages of the subjective existence of intellectual property rights: 1) creation; 2) implementation; 3) termination. No less rational is the perception of the nature of legal time as a limitation of the
corresponding subjective civil right, which is an element of the legal regulation mechanism established by legislation, a contract, a court decision, a custom of business turnover in the interests of other persons.
The consideration of legal time through the prism of the limitation of the subjective right to intellectual property is generally consistent with the normative prescriptions included in the structure of intellectual property law as a sub-branch of civil law. In fact, using the provisions of the Law of Ukraine "On Copyright and Related Rights" as an example, the following can be stated. Norms of Art. 22-28 of the Law contain a detailed description of the grounds and content of the limitation of copyright consisting in the possibility of using works without the author's consent, while Art. 32 of the Law discloses the essence of the transfer of works into the public domain after the expiration of the copyright term, i.e., the free use of works under the conditions of respect for the author's personal non-property rights. That is, time manifests itself as an element of the legal mechanism that ensures parity between the private interest of the author and the public interest of society, which seeks to obtain the relevant intellectual property.
In Ukrainian civil law, time values are represented by two mutually exclusive concepts: time and prescription. A key feature of domestic legislation is the consideration of time categories in the legal content of intellectual property rights, in contrast to the legislation of individual states, where exclusive rights are primary and others are optional.
In the regulatory provisions of intellectual property law, the concept is reflected in the following ways. The most common is the approach according to which time as a type of temporal value is directly represented by the moment of the creation of the intellectual property right in the authorised person depending on the specific result of creative, intellectual activity. In particular, as a result of the comparison of the provisions of Part 2 of Art. 251 of the Civil Code of Ukraine, where by time is meant the moment the occurrence of which is connected with an act or event having legal consequences, and Part 1 of Art. 437 of the Civil Code of Ukraine, according to which the moment of copyright origin is the moment of creation of the work, this conclusion is reached. Hereby it is obvious that the given legal fact is the corresponding action of the subject, i.e., the creation of the corresponding work, and according to Part 3 of Art. 9 of the Law of Ukraine "On Copyright and Related Rights" any other legal act, such as registration of a work or its special design, is not required.
In civil law, the creation of a work is understood to mean the representation of such an intellectual property object in an objective form that is perceived
by other participants in civil legal relations. At the same time, the Law of Georgia "On Copyright and Related Rights" in Article 9, under the expression in an objective form of a work, understands the possibility of its perception and reproduction, that is, repeated reproduction. In research, it is acceptable to think about the peculiarities of the objective form of expression of certain works, as an exclusively material form in the field of fine arts, as well as a special set of facts that is a precondition for the emergence of co-authorship and the right to follow as a component of the content of copyright (Churpita, 2004). In other words, time as the moment of origin of copyright can be presented as a general time value, provided that the result of creative activity is appropriately objectified, or as a special time value - if other legal facts are required. In particular, the special term for the emergence of copyright is the moment of lawful publication of the work under a pseudonym or anonymously (Part 3 of Article 31 of the Law of Ukraine "On Copyright and Related Rights", Article 32 of the Law of Georgia "On Copyright and Related Rights").
International legislation takes a consistent position on this type of legal time, where, according to Art. 7 of the Berne Convention of 1886 (Berne Convention for the Protection of Literary and Artistic Works, 1886), the general term for the creation of copyright is the moment of creation of the work and the specific term is the moment of lawful communication of the work in a form accessible to the public. At the same time, certain works, such as cinematographic works, photographic works and works of joint authorship, are given special characteristics.
The study of the moment of granting of legal protection by domestic legislation to certain works that are characterised by a number of special features as the object of copyright, using the example of a computer program (Petrenko, 2010), a scientific paper (Denisova, 1999), a work of fine art created by the NFT token, deserves attention. For the above-mentioned objects of legal protection, among the set of legal facts causing the emergence of copyright, apart from creation by presentation in an objectified form, suitability for use in a computer or other electronic device for the purpose of processing the relevant array of information to achieve a specified result is singled out - in relation to the first, the endowment of such a work with appropriate content that would correspond to the characteristics of scientific - in relation to the second, or digitisation in the appropriate form of the final object.
For related rights, the moment of creation of the subjective intellectual property right in accordance with Art. 451 of the Civil Code of Ukraine is the first performance or transmission (programme) to a broadcasting organisation, production of a
phonogram or videogram. At the same time, Part 2 of Art. 37 of the Law of Ukraine "On Copyright and Related Rights" links the moment of the creation of a related right with the fact of the performance of a work, the production of a phonogram or videogram, as well as the publication of the broadcast by the broadcasting organisation. Thus, there is a double understanding of the essence of the relevant right emergence as a temporal value, which in no way contributes to the clarity and unambiguity of the further legal application of the specified norms in accordance with the requirements of the decisions of the Constitutional Court of Ukraine on September 22, 2005, No. 5-pn/2005), dated June 29, 2010 No. 17-pn/2010 (Judgment of the Constitutional Court of Ukraine on June 29, 2010, No. 17-pn/2010), dated December 22 of 2010 No. 23-pn/2010 (Judgment of the Constitutional Court of Ukraine on December 22, 2010, No. 23-pn/2010), dated October 11, 2011 No. 10-pn/2011 (Judgment of the Constitutional Court of Ukraine on October 11, 2011, No. 10-pn/2011).
According to the Civil Code of Georgia, the legal regulation of related rights is clearly delineated, with priority given to a special law (Article 1017). Thus, according to Art. 57 of the Law of Georgia "On Copyright and Related Rights", the moment of occurrence of related rights in respect of performance is directly related to the first performance, in respect of phonograms and videograms - to the first recording, and in respect of a broadcasting program -to the first airing or cable transmission.
According to the legislation of some States, the point in time associated with the relevant behaviour of the subject, which is reflected for the first time in one form or another, is considered as the general term for the emergence of a related right. Thus, in relation to the performance, it is an alternative action of the performer, which is manifested in the performance, its recording, the broadcast or cable transmission; in relation to the phonogram, it is in the recording; in relation to the broadcast or cable transmission, it is in the notification of the corresponding broadcast or cable transmission.
The essence of the understanding of the moment of creation of a related right under domestic law can be clarified by taking into account the philological understanding of the above concepts. For example, according to the dictionary, "production" means creating or compiling (a business document, a work), "performance" means reproducing any work for listeners or viewers, "manufacture" means making, producing objects, materials, etc., "realisation" means introducing, carrying out, making actual, real or performing something. "Perform" - to introduce, carry out, make actual or real, or perform or produce something, "publicize" - to perform in the presence of
people (Bussel et al, 2005). Thus, on the basis of the wording used, it must be concluded that the concepts used in the Code and in the Law are identical, with a few comments. In particular, the determination of the concepts of "performance" and "publication" based on the content of the moment when the intellectual property right in the broadcast (programme) comes into existence for the broadcasting organisation is controversial. Since, according to the above-mentioned legislation of other countries, a message on air is recognised as a determining act for this object, i.e., publication, preference should be given to the latter. This opinion is reasonable in view of the comparison of the essence of the concepts of "performance" and "disclosure", since performance in this context may not imply disclosure, for example, recording of such an object without involving the relevant public.
In addition, the provisions of the Civil Code of Ukraine should be harmonised with the norms of the Rome Convention of 26 October 1961 (Rome Convention, 1961), where the creation of related rights is linked to performance, fixation and broadcasting as forms of legitimate conduct of performers, producers of phonograms and broadcasting organizations (Article 14).
The right to industrial property as a type of intellectual property right in the field of scientific and technical activity arises from the moment of obtaining a patent for an invention, utility model or industrial design in accordance with Art. 462 of the Civil Code of Ukraine. However, Part 4 of Art. 6 of the Law of Ukraine "On Protection of Rights to Inventions and Utility Models" (On Protection of Rights to Inventions and Utility Models) and parts 3-5 of Art. 465 of the Civil Code of Ukraine extend the term of legal protection and the date of creation of the respective industrial property right within the framework of the constituent exclusive right to an earlier date, namely to the date of filing the application for the invention in the prescribed manner. Pursuant to Part 1 of Art. 465 of the Civil Code of Ukraine, the emergence of property rights to the object of industrial property rights is associated with the date following the date of its state registration. The latter provision is very narrowly interpreted as providing legal protection to the so-called secret objects of intellectual activity in the scientific and technical sphere, which is not acceptable (Kharitonov, Kalitenko, et al., 2004).
At the same time, there is an opinion that divides the moment of the emergence of the right to industrial property in terms of the personal non-property or property component of its content, where the circumstances of the first group are defined as primary (Basai, 2012). Thus, it is proposed that the emergence of the personal non-property rights of the inventor, author of a utility model and industrial design is
associated with the creation of a corresponding object of industrial property, and the exclusive property rights are directly associated with the registration and obtaining of a patent. Such a thesis is incorrect because it does not correspond to the nature of the origin of the intellectual property right (Art. 422-425 of the Civil Code of Ukraine), the content of the industrial property right depending on the object (Art. 459, 460, 461 of the Civil Code of Ukraine) and the nature of the right of the previous user (Art. 470 of the Civil Code of Ukraine). The above-mentioned norms lead to contradictory considerations in civil studies about the moment of creation of the industrial property right, even within the limits of one study (Petrenko, 2010). In this respect, it is correct to consider that the creation of the industrial property right is directly related to the recognition of the corresponding object as patentable, which is certified by the legalisation document; however, in order to extend such legal protection to the entire period of existence of the corresponding result of intellectual activity, the reverse effect of legal protection takes place in time, as a result of the recognition of the validity of the industrial property right from the moment of filing the application.
According to Ya. Voronin, the proposed interpretation of the content of civil legislation does not correspond to the essence of the subjective right to industrial property, which can be exercised by the subject only from the moment of obtaining a patent, which requires appropriate legislative amendments (Voronin, 2009). The above can be refuted by analogy with the content of Part 5 of Art. 1268 of the Civil Code of Ukraine, which extends the powers of the heir to the period prior to acceptance of the inheritance.
Similarly, the right to intellectual property in the field of breeding achievements (Article 488 of the Civil Code of Ukraine) in relation to semiconductor products (Article 475 of the Civil Code of Ukraine) arises from the day following the day of their state registration. In relation to an innovative design, the intellectual property right arises from the date of its recognition by the relevant organisation in accordance with Art. 481 of the Civil Code of Ukraine. Here, of course, a similar term is the date of the decision of the body or representative through which the legal entity exercises its legal personality.
The term of an intellectual property right for a trade name is the date of the first use of this name, for a trademark and a geographical name - the date of the application and state registration of the corresponding property rights, and for a trade secret -the date of the acquisition of relevant information with the characteristics of such an object.
Scientific discovery as an object of non-traditional intellectual activity within the scope of Chapter 38 of the Civil Code of Ukraine has not received proper legal
regulation, however, from the content of Art. 457 of the Civil Code of Ukraine, it is necessary to draw the following conclusion. Firstly, according to the Civil Code of Ukraine, the emergence of an intellectual property right for such an object is connected with its compliance with certain conditions: the establishment of such regularities, properties and phenomena of the material world that bring about fundamental changes in the level of scientific knowledge, their novelty (previously unknown) and objective existence. Secondly, it is possible to extend to such an object, by analogy, the mechanism of legitimisation of authorised persons with regard to plant varieties as results of intellectual activity.
To a certain extent, such a position corresponds to the legal nature of a scientific discovery and the meaning of the concept of "priority of a scientific discovery" as the date of the first formulation of a provision declared as a scientific discovery or the date of the publication of the specified provision. However, the alternative definition of the term "priority of a scientific discovery" is somewhat controversial, since the wording of the relevant provision, which is included in the content of a scientific discovery, makes sense and, accordingly, should be given legal protection from the moment of its public presentation.
For this reason, the provisions of civil law concerning the temporal limitation of the exercise of civil rights and the performance of civil obligations should be modernised (updated), taking into account the importance of time in the mechanism of legal regulation of relevant social relations. This issue is particularly relevant in connection with the existing trends of economic globalisation, which provide for a civilised legal order, and the fact that the goods significant for civil circulation are usually the objects of property and related non-property social relations.
Undoubtedly, the Ukrainian civil legislation in the field of temporal categories should be renewed, taking into account the work of the team of authors of the Concept of updating the Civil Code of Ukraine, scientific studies of the state and the need for improvement of other legal structures in this sense, including from the point of view of international jurisprudence and expressed proposals.
4. Conclusions
Summarising the considerations presented in the article on the modernisation of the legal regulation of time limits on the exercise of private rights in Ukraine on the way to economic integration, the following should be noted.
In fact, civil law directly provides a static and dynamic component of economic turnover by defining the legal regime of a number of property and non-property goods in relation to which civil legal
relations are created, modified and terminated. A precondition for the civilised development of the modern world community is the establishment of civilised rules for the circulation of relevant property goods. From this point of view, among the social relations which are the subject of civil law regulation, the most important are property rights and the non-property rights connected with them, which, although they have no economic significance, play an important role in ensuring civil circulation due to their specific nature.
Current trends in the world of capital indicate a wide range of capitalisation, not only of property, but also of non-property relations, where the sphere of information space and communication takes first place. By joining the Marrakesh Agreement on the Establishment of the World Trade Organization and assuming obligations under the Association Agreement with the European Union, Ukraine has initiated a series of legal and economic transforma-tions, the former being crucial for clearing the field for the latter.
The Civil Code in any state is a fundamental legislative act providing regulation of a significant number of social relations in modern society. The modernization of temporal categories in various institutions of civil law can be characterized from the standpoint of the concept of updating the Civil Code of Ukraine, as well as the study of the state and exigency improvement of other legal structures, in particular, from the standpoint of international jurisprudence. It is the time as a temporal value, setting certain restrictions on the realization of civil rights and the performance of civil duties, that
References:
ensures the promptness of the behavior of subjects of civil law, determines the most optimal and effective way of implementing the dynamics of civil turnover, and thus mediates the most rational possibilities for the flow of economic processes in modern society.
The legal analysis of individual economic relations allows to identify directions for improvement of normative consolidation of temporal categories in general provisions of civil legislation, in particular in section V "Time and Statutory Limitation Periods" of Book I of the Civil Code of Ukraine, as well as to formulate specific proposals for definition of the concept of "limitation period", determination of features of its course, as well as legal regime of limitation period (within civil and land legislation), correlation of specified types of limitation period.
The temporal characteristics of the law are characterized through the prism of the limitation of the subjective right to intellectual property, which is generally consistent with the normative prescriptions included in the law of intellectual property as a subdivision of civil law. The problematic aspects of the normalization of intellectual property relations in the general provisions of the Civil Code of Ukraine and special legislation are highlighted, as well as proposals for the legal regulation of such relations in the light of international legislation, judicial practice and legal doctrine are made.
This study has the prospect of further elaboration in the context of studying the reasons for the modernization of other civil law institutions in connection with the temporal limits of the exercise of civil rights and the fulfillment of civil duties.
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Received on: 13th ofJanuary, 2023 Accepted on: 24th of February, 2023 Published on: 31th of March, 2023
