特别投资协议的法律特征

O. Sushch
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This question arises on the basis of the fact that the legislation does not contain a definition of the concept of «investment agreement», but there is a definition of a special investment agreement; the legal nature of relations arising on the basis of a special investment agreement, since the parties to the contractual obligations are subjects of public and private law; features of conclusion, execution, termination of a special investment agreement and liability of the parties for improper execution of contractual relations; scope of subjective rights and legal obligations of the subjects of contractual relations, since the Law of Ukraine «On State Support of Investment Projects with Significant Investments» does not reflect the rights and obligations of the parties to a special investment agreement. All these issues require a theoretical and legal understanding. Analysis of resent researches and publications. The study of modern scientific publications on the problems of legal regulation of investment activities indicates the absence of scientific publications, the subject of which would be the study of the contractual construction of a special investment agreement. Target of the research is to analyze the legal regulation of the contractual construction of a special investment agreement. Article’s main body. The signs of a special investment agreement, which indicate its specificity, have been established. Among them: the purpose of the agreement is the implementation of an investment project with significant investments; state support for investment projects with significant investments and the specific composition of subjects of contractual relations (applicant, investor with significant investments and subjects of public law the state represented by the Cabinet of Ministers of Ukraine and the territorial community). 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引用次数: 0

摘要

问题设置。投资协定是确立投资活动主体权利和义务的最常见形式,但投资协定在立法层面缺乏充分的法律推理。立法者正试图改善对投资活动的法律规制,这导致投资活动领域出现新的合同结构。因此,对投资法的修订成为巩固乌克兰“国家支持重大投资项目”法中“特别投资协议”的合同结构,与此相关的问题是:“特别投资协议”名称的正确性。产生这个问题的基础是,立法没有包含“投资协定”概念的定义,但有一个特别投资协定的定义;在特别投资协定基础上产生的关系的法律性质,因为合同义务的各方都是公法和私法的主体;专项投资协议的订立、签订、终止的特点及双方履行合同关系不当的责任;合同关系主体的主观权利和法律义务范围,因为乌克兰“关于国家支持重大投资项目”的法律没有反映特殊投资协议各方的权利和义务。所有这些问题都需要从理论上和法律上加以理解。最新研究和出版物分析。对现代科学出版物对投资活动的法律规制问题的研究表明,缺乏科学出版物,其主题将是研究特别投资协定的合同构建。本文的研究目标是分析专项投资协议合同构建的法律规制。文章的主体。一项特别投资协定的标志已经确立,这表明了它的特殊性。其中:协议的目的是实施具有重大投资的投资项目;国家对具有重大投资的投资项目的支持和合同关系主体的具体组成(申请人、具有重大投资的投资者和公法主体,即乌克兰内阁部长和领土共同体所代表的国家)。明确了缔结、修改和终止特别投资协定的具体事项。结论和发展前景。特别投资协定是一种复杂的合同结构,其中包含与执行具有重大投资的投资项目有关的私法和公法性质的关系。重大投资项目和特殊投资协议的法律规定有以下缺点:国家对重大投资投资者的法定支持只能提供给在重大投资项目实施期间对投资对象的重大投资超过相当于2000万欧元的投资者。不符合这些财务要求的投资者不能获得重大投资投资者的身份,从而获得国家支持;实施重大投资的投资项目,需要设立新的法人单位,具有重大投资的投资者;乌克兰“关于国家支持具有重大投资的投资项目”的法律没有规定特别投资协议各方的权利和义务。由于缺乏相关的科学研究成果,需要进一步研究特殊投资协议的签订、执行和终止的具体内容,特殊投资协议的法律性质以及特殊投资协议各方的权利和义务范围。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Legal Characteristics of Special Investment Agreement
Problem setting. An investment agreement is the most common form of establishing the rights and obligations of subjects of investment activity, but investment agreements do not have sufficient legal reasoning at the legislative level. The legislator is trying to improve the legal regulation of investment activity, which leads to the emergence of new contractual structures in the field of investment activity. Thus, an amendment to the investment legislation became the consolidation of the contractual structure «special investment agreement» in the Law of Ukraine «On State Support of Investment Projects with Significant Investments», in connection with this, questions arise regarding: the correctness of the name of «special investment agreement». This question arises on the basis of the fact that the legislation does not contain a definition of the concept of «investment agreement», but there is a definition of a special investment agreement; the legal nature of relations arising on the basis of a special investment agreement, since the parties to the contractual obligations are subjects of public and private law; features of conclusion, execution, termination of a special investment agreement and liability of the parties for improper execution of contractual relations; scope of subjective rights and legal obligations of the subjects of contractual relations, since the Law of Ukraine «On State Support of Investment Projects with Significant Investments» does not reflect the rights and obligations of the parties to a special investment agreement. All these issues require a theoretical and legal understanding. Analysis of resent researches and publications. The study of modern scientific publications on the problems of legal regulation of investment activities indicates the absence of scientific publications, the subject of which would be the study of the contractual construction of a special investment agreement. Target of the research is to analyze the legal regulation of the contractual construction of a special investment agreement. Article’s main body. The signs of a special investment agreement, which indicate its specificity, have been established. Among them: the purpose of the agreement is the implementation of an investment project with significant investments; state support for investment projects with significant investments and the specific composition of subjects of contractual relations (applicant, investor with significant investments and subjects of public law the state represented by the Cabinet of Ministers of Ukraine and the territorial community). The specifics of concluding, amending and terminating a special investment agreement are defined. Conclusions and prospects for development. A special investment agreement is a complex contractual structure that contains elements of private-law and public-law nature of relations arising in connection with the implementation of investment projects with significant investments. Legal regulation of investment projects with significant investments and special investment agreements has the following disadvantages: statutory state support provided to investors with significant investments can be provided only to those investors whose significant investments in investment objects during the period of implementation of the investment project with significant investments exceed the amount equivalent to 20 million euros. Investors who do not meet these financial requirements cannot acquire the status of investor with significant investments and thus, state support; to implement an investment project with significant investments, it is necessary to create a new legal entity an investor with significant investments; The Law of Ukraine “On State Support of Investment Projects with Significant Investments” does not establish the rights nor obligations of the parties to a special investment agreement. The lack of scientific works on the researched topic indicates the need for further study of the specifics of concluding, executing and terminating special investment agreements, their legal nature and the scope of rights and obligations of the parties to a special investment agreement.
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