Hobechiya I. T. Civil legal personality of legal entities in the field of legal services in Ukraine. – Qualifying scientific work on the rights of the manuscript.
The dissertation for the degree of Doctor of Philosophy in specialty 081 «Law». – Lviv State University of Internal Affairs, Lviv, 2021.
The dissertation is aimed at a comprehensive solution of scientific and practical problems and research of civil legal personality of legal entities engaged in the provision of legal services under the legislation of Ukraine.
The dissertation is the first study in which a comprehensive theoretical analysis of the civil legal personality of legal entities in the field of legal services under the laws of Ukraine has been made and on its basis there have been developed proposals and recommendations to improve legal regulation in this area of public relations.
In the Section 1. «General provisions on civil personality of legal entities in the field of legal services under the legislation of Ukraine» it has been examined the genesis of legal regulation of the status of legal entities in the field of legal services under the legislation of Ukraine, it has been characterized the system and classified legal entities in the field of legal services under the legislation of Ukraine, as well as the concept and features of civil legal personality of such participants in civil relations have been clarified.
The following periods can be distinguished in the history of normative regulation of the legal status of bar associations and law firms: 1991–1993 (from the restoration of Ukraine’s independence to the entry into force of the Law on Advocacy); 1993–2012 (from the settlement of the status of bar associations, law firms, offices and other associations in accordance with the Law of Ukraine «On Advocacy» to the entry into force of the Law of Ukraine «On Advocacy and Advocatory Activity»); 2012 – present (period of validity of the Law of Ukraine «On Advocacy and Advocatory Activity»).
The domestic legislator uses the terms «legal aid», «juridicial aid» and «law aid» as identical. In addition, we consider the same terms «legal services», «juridicial services» and «law services», which are covered and related to the provision of legal (juridicial, law) assistance on the basis of a transaction, law, statute or other legal act. In turn, advocacy covers the provision of all types of legal assistance. In this case, legal entities engaged in the provision of legal services can be classified according to various criteria, in particular, depending on: the order of their creation, the purpose of profit and subsequent distribution among participants, the type of organizational and legal form, the form of ownership, from the basis of creation and activity, etc.
Thus, the peculiarity of the legal status of advocatory associations and advocatory bureaus is that their founders (participants) can only be individuals who have received a certificate of the right to practice law. This, in turn, also creates special legal consequences, which are related, in particular, to the following: there is a possibility of alienation on the basis of civil law shares in the authorized capital of advocatory associations and advocatory bureaus exclusively for the benefit of individuals who have received a certificate on the right to practice law; there is a possibility of acquisition a share in the authorized capital of bar associations and advocatory bureaus by inheritance only by individuals who have received a certificate of the right to practice law.
Section 2. «The emergence and features of the civil legal personality of legal entities in the field of legal services in Ukraine» has been devoted to the study of organizational and legal forms and features of legal entities in the field of legal services under the legislation of Ukraine, as well as the research of their legal entities’ personality.
Advocacy is based on the principles of the rule of law, legality, independence, confidentiality and avoidance of conflicts of interest. The same requirements should be laid down for the provision of any legal services on a paid or unpaid basis by any type of legal entity. In the paper it has been concluded that the concept of contractual settlement of the peculiarities of advocacy within an advocatory association on the basis of an agreement on the establishment of a bar association is justified. In turn, in advocatory bureau the issues of the legal regime of the property transferred to it, the peculiarities of management, use of business reputation, determination of entrepreneurial or non-entrepreneurial status are the subject to decision based on the opinion of the founder’s lawyer. Instead, the status of other legal entities in the field of legal services (entrepreneurial or non-entrepreneurial) is determined by the legislative regulation of the relevant organizational and legal form.
The procedure for creating legal entities in the field of legal services, as well as any organization, is influenced by both the type of organizational and legal form and other classification characteristics. In particular, directly from the Law of Ukraine «On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations» we conclude that there are features of the creation of legal entities of private law and legal entities of public law. Considering that among the organizations with the status of the legal entity carrying out activity in providing legal services we find both private-legal formations (for example, limited liability companies, private enterprises, etc.), and public-law, for instance, centres for granting free legal aid.) – the order of their creation will be different.
In the context of legal entities in the field of legal services, the administrative method of creation is typical for free legal aid centres and specialized institutions, and regulatory for public associations, law firms, companies, private enterprises, etc.
In the Section 3. «Termination of civil legal personality of legal entities in the field of legal services under the legislation of Ukraine» the procedure for reorganization and the legal consequences of the liquidation of the investigated legal entities have been described.
The contract for the provision of legal aid may be terminated early by mutual consent of the parties or terminated at the request of one of the parties on the terms provided by the contract. The general requirements of contract law apply to a contract for the provision of legal aid, and therefore it is necessary to take into account the legal nature of the relationship of trust under such contracts. Finally, according to the Constitution of Ukraine and the current procedural codes, obtaining legal aid is a right, not an obligation, of a participant in a particular proceeding. Therefore, given the fiduciary nature of the relationship between the customer of legal services (client) and their executor, in order to avoid misunderstandings, it is reasonable to clearly provide in the Law of Ukraine «On Advocacy and Advocatory Activity» the client’s right to withdraw from the contract reorganized union (bureau).
The essence of the liquidation of a legal entity is a certain procedure, which is reduced to an algorithm of successive actions, the commission of each of which determines the possibility of the next. The number of actions depends on: the type of legal entity; the grounds that determine the beginning of this process (for example, the decision of the participants (founders) of a legal entity or a court decision); the amount of liabilities of the legal entity, etc. However, regardless of the duration of the procedure, its final stage will always be a legal fact – entering in the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations information on the termination of a legal entity. The moment of termination of legal personality of a legal entity is connected with the commission of this action.
The scientific novelty of the work is, in particular, that for the first time it has been: argued the provisions according to which advocatory associations and advocatory bureaus are legal entities of private law with special legal personality and the right to practice only law. In order to avoid misunderstandings and to prevent unequal interpretation, it is expedient to enshrine the relevant provisions in the legislation; proposed an approach according to which it is necessary to limit the possibility of involving local governments of legal entities of private law in the provision of free primary legal aid only from advocatory associations, advocatory bureaus, other legal entities licensed by the Bar Council of the region; proposed that a advocatory associations is an independent organizational and legal form of legal entities created by persons who have received a certificate of the right to practice law, by combining their property and / or activities in the field of providing legal services to interested parties on the basis, defined by the Constitution of Ukraine, the Law of Ukraine «On Advocacy and Advocatory Activity», other regulations of Ukraine for the purpose determined by agreement between such persons and enshrined in the constituent documents of the bar association; substantiated that the advocatory bureau is an independent organizational and legal form of legal entities, created by a single founder – a lawyer to conduct activities in the field of providing legal services to interested parties on the basis of the Constitution of Ukraine, the Law of Ukraine «On Advocacy and Advocatory Activity», other legal acts of Ukraine for the purpose determined by the decision of such founder and enshrined in the constituent documents of the advocatory bureau on the basis of property independence and legal separation of the advocatory bureau; concluded that, given the requirements for the qualitative composition of legal entities in the field of legal services, the ability to be classified as legal entities of public or private law, their organizational and legal forms and practices, legal entities in the field of legal services can be conditionally divided into five groups: advocatory associations, advocatory bureaus; free legal aid centres and specialized agencies; executive bodies and local self-government bodies that can provide primary legal aid; other subjects from among legal entities of private law (business associations and private enterprises); proposed to supplement the legislation of Ukraine on advocacy and advocatory activity with regulations according to which the founders of advocatory associations and advocatory bureaus may be only lawyers who meet the requirements established by the Law of Ukraine «On Advocacy and Advocatory Activity» and in respect of which no decision is made to suspend, termination or deprivation of the right to practice law; substantiated the necessity of introduction of the institute of obligatory insurance of civil liability of lawyers in connection with their legal assistance; identified the need for legislative changes and additions, according to which: non-business advocatory associations (bureaus) cannot be reorganized into business; the statutes of advocatory associations (bureaus) may provide for additional provisions on their reorganization or liquidation that do not contradict the law; substantiated the approach according to which in the course of improving the national legislation of Ukraine, the Bar Council of the region should be legally authorized to perform control functions and in case of refusal of such an advocatory association to change its legal form to a advocatory bureau, give it the right after six months apply to the court with a claim for its compulsory liquidation; proposed in order to ensure effective protection of the rights and legitimate interests of clients to change the statutory order of satisfaction of creditors’ claims in the liquidation of legal entities operating in the field of legal services, including the requirement to settle (refund paid) with clients on the provision of legal assistance.
In the dissertation it has been also improved: the conclusion according to which to allow legal aid to legal entities or other legal entities, unencumbered by a sufficient number of requirements for them and their employees, is a mistake and does not contribute to the professionalization of the institution of qualified legal services; provisions on the need to establish a direct ban on the simultaneous participation of a lawyer in several advocatoty associations or advocatoty bureaus; conclusion, according to which advocatoty associations (bureaus) can be reorganized exclusively into other advocatoty associations (bureaus).
In addition, the following has been substantiated: the provision according to which advocatoty associations (bureaus) may be established as business or non-business legal entities; conclusion on the priority of civil legal personality of legal entities regardless of their type and organizational or legal form; the provision according to which advocatoty associations and advocatoty bureaus are independent organizational and legal forms of legal entities; conclusion, according to which in case of death or declaration of death of a lawyer-member of the advocatory bureau, deprivation of his right to practice law, such advocatory bureau is subject to liquidation. Moreover, the decision on liquidation may be made by the executive body of the bureau, and if the duties of the managing bureau are entrusted to the participant of the bureau by the constituent document – the council of lawyers of the region at the address of the lawyer-participant.