Children’s Right to Be Heard: What Children Think

2012 ◽  
Vol 20 (1) ◽  
pp. 141-154 ◽  
Author(s):  
Roberta Bosisio
Keyword(s):  
Civil Law ◽  
Point Of View ◽  
Legal Proceedings ◽  
Legal Professionals ◽  
Children's Perceptions ◽  
Children’S Perceptions ◽  
Italian Law ◽  
Administrative Proceedings ◽  
The Right

This article analyses the implementation in Italy of the children’s right to be heard in judicial and administrative proceedings and investigates children’s point of view about this right. The article is organized in two sections. In the first I present an overview of Italian law on children’s hearing in legal proceedings in the civil law context, and the opinion of legal professionals about child’s hearing. In the second I present some findings of a research aiming at identifying children’s perceptions and opinions on the right to be listened to if their parents decide to separate.

scholarly journals Legal nature of the requirements of the banking legislation of Ukraine to ensure credit operations of banks

2021 ◽  
pp. 297-305
Author(s):  
Anatoliy Babaskin
Keyword(s):  
Credit Card ◽  
Civil Law ◽  
Legal Regulation ◽  
Functional Method ◽  
Point Of View ◽  
The European Union ◽  
Scientific Publications ◽  
Economic Point ◽  
Legal Nature ◽  
The Right

Іintroduction. Despite the fact that a significant number of scientific publications by well-known Ukrainian authors are devoted to the issues of legal regulation of credit obligations, at the same time separate studies of banking legislation requirements on "acceptability of collateral" have not been conducted in Ukrainian civil science in recent years. This, taking into account the gradual alignment of banking legislation of Ukraine with the standards of Basel III, and Directive 2002/47 / EC of the European Parliament and of the Council of 6 June 2002 on financial collateral mechanisms, necessitates such scientific research. The aim of the article. On the basis of the analysis of the legislation of Ukraine, the legislation of the European Union, scientific advances in the sphere of civil law and banking legislation, in the context of the analysis of the banking legislation of Ukraine, it is safe for creditors. In order to achieve this goal: 1. Conduct an analysis of civil and legal species for the protection of crops for the subject of іх possible delivery to “acceptable safety” and vrahuvannya banks when opening a credit card. 2. Significantly "quasi-security", as viewed by the banking legislation in the form of "acceptable security" for credit cards. 3. Zdіysniti analysis of the approaches to the legislation of the EU in the field of protection from credit denominations. Results. The methodological basis of the study is general scientific and special legal methods of scientific knowledge. In particular, the dialectical method, the method of analysis and synthesis, the comparative law method, the functional method, the modeling method, etc. Conclusions. First, the banking legislation does not consider as "acceptable collateral" such types of collateral as penalty, surety, deposit, retention. Secondly, the banking legislation considers as "acceptable collateral" not only those specified in Part 1 of Art. 546 of the Civil Code of Ukraine types of security for performance of obligations (pledge, right of trust ownership, guarantee), and other types of security for performance of obligations provided by law or contract (reserve letter of credit, performing the function of financial guarantee, guarantees of public entities, guarantee payment), but also contractual constructions which do not concern types of maintenance of performance of obligations (repo agreements). Thus, the banking legislation considers collateral in credit operations from the economic point of view, according to which "acceptable collateral" is only such liquid collateral that guarantees the rapid recovery of the property of the creditor bank, which suffered damage due to default or improper performance of the counterparty loan obligation, as well as "quasi-collateral", if such is referred by banking legislation to "acceptable collateral". Third, the existence of rules in the banking legislation on the acceptability of collateral in no way affects the right of banks to use any type of collateral provided by law or contract, if the application of such is possible in credit relations, taking into account the legal nature of the relevant types. software. Fourth, the set of regulations of the National Bank of Ukraine on the acceptability of collateral can be considered as an institution of banking law, which includes as rules of civil law governing the types of collateral, other rules of contract law governing other "quasi-collateral" contractual constructions, as well as public-law special norms of banking legislation, which establish additional regulatory requirements for banks to ensure credit operations and calculate credit risk.

scholarly journals Powers of Trade Union Activists Engaged in Self-Employment – Assessment of Polish Legislation

2021 ◽  
Vol 95 ◽  
pp. 83-100
Author(s):  
Tomasz Duraj
Keyword(s):  
Trade Union ◽  
Ad Hoc ◽  
Civil Law ◽  
Fundamental Principle ◽  
Point Of View ◽  
International Standards ◽  
Employee Rights ◽  
Legal Basis ◽  
Union Activists ◽  
The Right

The objective of the foregoing article is an analysis of the rights which the Polish legislature granted to self-employed trade union activists after the extension of coalition rights to these persons. In this regard, the trade union law extended to self-employed persons working as sole traders protection, which until 2019 was reserved exclusively for employees. Pursuant to the amendment of July 5, 2018, self-employed trade union activists were granted – based on international standards – the right to non-discrimination on the basis of performing a trade union function, the right to paid leaves from work, both permanent and ad hoc in order to carry out ongoing activities resulting from the exercise of a trade union function, and the protection of the sustainability of civil law contracts which form the legal basis for the services provided. the exercise of a trade union function, and the protection of the sustainability of civil law contracts which form the legal basis for the services provided. The author positively assesses the very tendency to extend employee rights to self-employed persons acting as union activists. However, serious doubts are raised by the scope of privileges guaranteed to non-employee trade union activists and the lack of any criteria differentiating this protection. Following the amendment of the trade union law, the legislator practically equates the scope of rights of self-employed trade union activists with the situation of trade union activists with employee status. This is not the right direction. This regulation does not take into account the specificity of self-employed persons, who most often do not have such strong legal relationship with the employing entity as employees. The legislature does not sufficiently notice the distinctness resulting from civil law contracts, which form the basis for the provision of work by the selfemployed the separateness resulting from civil law contracts, which constitute the basis for the performance of work by the self-employed. According to the author, the scope of rights guaranteed de lege lata to self-employed union activists constitutes an excessive and unjustified interference with the fundamental principle of freedom of contract on the basis of civil law employment relations (Art. 3531 of the Civil Code). From the point of view of international standards, it would be enough to ensure the right of these persons to non-discrimination on the basis of performing a trade union function; the right to unpaid temporary leaves from work in order to perform current activities resulting from the performed trade union function; the right to high compensation in the event of termination of a civil law contract with a self-employed trade union activist in connection with the performance of his functions in trade union bodies and full jurisdiction of labour courts in cases arising from the application of trade union law provisions. The disadvantage of the regulation at issue is also that Polish collective labour law does not in any way differentiate the scope of the rights and privileges guaranteed to self-employed trade union activists, ensuring the same level of protection for all. In that area, it appears that the legislature de lege ferenda should differentiate the scope of that protection by referring to the criterion of economic dependence on the hiring entity for which the services are provided.

scholarly journals Team of Co-Owners as a Subject of the Right to Joint Shared Property

2019 ◽  
pp. 49-56
Author(s):  
A. V. Zarubin
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
General Rule ◽  
Point Of View ◽  
Actual Situation ◽  
The Subject ◽  
Shared Property ◽  
Definition Of ◽  
The Right ◽  
Joint Property

The author focuses on the similarity between relations of joint shared property and corporate relations, and proposes a “collective (a team of co-ownwers)” concept of joint property rights that is designed to solve the main problems of relations in question, including the definition of the subject of the right to joint shared property. From the point of view of the “collective” concept, the right to joint property is uniform. If the ownership of individual participants was extended to the whole thing, everyone’s will would be decisive in determining the fate of the thing, but the actual situation is not like this. In addition, possession is an external manifestation of ownership. At the same time, none of co-owners has the opportunity to appropriate the whole thing or even its part. He has only the right to claim possession. The general rule applies to the thing that is the object of the right to joint property. The right to joint property belongs to the team of co-owners as a non-entity community. There is no contradiction in the fact that the right belongs to an unauthorized association (a non-entity community), since the right can be attributed to the person whose will and domination is recognized by law, even if the law denies it as the subject (participant) of civil law relations.

RECOURSE PERIOD TO THE ADMINISTRATIVE COURT THROUGH THE PRISM OF THE INFLUENCE OF THE SUPREME COURT

2018 ◽  
Author(s):  
Iryna Balakarieva ◽  
◽  
Krystyna Rutvian ◽  
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Scientific Work ◽  
Point Of View ◽  
Access To Justice ◽  
The Supreme Court ◽  
Judicial Errors ◽  
The One ◽  
Administrative Proceedings ◽  
The Right

The article is devoted to the study of the peculiarities of regulating the recourse period to the administrative court from the point of view of due process. Clear up the issue to what extent the consolidation and regulation of the recourse period qualifies the requirements of the legal procedure, namely: clear legislative regulation; inadmissibility of violation of the rights, freedoms and interests of the parties; clear structuredness and regulation. The scientific work investigates the essence of the term circulation term and considers the feasibility of introducing it. An attempt was also made to compare the recourse period with the limitation, arguments are given why the introduction of the terms of appeal in administrative proceedings is not identical to the limitation in civil proceedings. Different positions are considered, referring to the practice of the Supreme Court and the opinions of scientists, why, on the one hand, the limitation cannot be introduced in the administrative process from the point of view of the principle of legal certainty, and on the other hand, how the recourse period violates the right to access to justice. The main attention is paid to the role of the Supreme Court in the formation of approaches to the application of limitations. The concept of contra legem, which is inherent in the countries of the Anglo-Saxon legal family, is considered and is used in cases where there is a need to deviate from the enshrined norm at the legislative level in order to avoid literal application of the law and not make an absurd or unfair decision. The thesis is emphasized, despite the fact that the Supreme Court sometimes deviates from the formally prescribed norms, however, this is the essence of the cassation proceedings: it is an additional guarantee of the protection of subjective rights by correcting judicial errors, as well as a kind of judicial control. The specific decisions of the Supreme Court are considered, in which the approaches to the practice of applying the recourse period have been changed. On the basis of the decisions of the Supreme Court, it was investigated how the Supreme Court by its decisions affects and changes the recourse period fixed at the legislative level, the key positions of the Supreme Court are highlighted, which today are guiding for the subjects of appeal to the administrative court.

General concept on the time of exercise of the right to protection

2021 ◽  
pp. 112-118
Author(s):  
Petro Guyvan
Keyword(s):  
Civil Law ◽  
Legal Protection ◽  
General Concept ◽  
Point Of View ◽  
Practical Significance ◽  
Legal Analysis ◽  
Modern Development ◽  
The Law ◽  
The Right ◽  
Substantive Law

Purpose. The work is aimed at studying current issues on the temporal dimensions of subjective civil law and the possibilities of its protection in the event of an offense. After all, the issue of timely exercise of subjective law is very important in society. Therefore, the term is a necessary and integral element of the content of substantive civil law, the certainty in this regard will also provide certainty in the application of the necessary legal protection tools. Methods. From the methodological point of view, the work substantiates the thesis that with the expiration of the statute of limitations the regulatory right ceases and thus the subject of protection itself ceases. Results. This concept does not cover all cases of violation of subjective civil law, in particular, it is not able to justify the proper protection of property rights in cases where one of the rights of the owner is violated, such as the right of possession or use. Because the very fact of the offense in such cases does not terminate the right of ownership. Therefore, it is emphasized that the legal analysis of the commented temporal coordinates should be carried out not within the existence of the protected (regulatory) right, but within the protection, that is, what arose as a result of the offense. Scientific novelty. The modern development of civil doctrine allows us to conclude that the subjective substantive law is realized within the regulatory legal relationship, and in case of violation of the latter there is a new separate protective obligation, within which protection is carried out, in particular, through claims. At the same time, it is obvious that judicial protection does not exhaust the protective property of the law. In most cases, non-judicial remedies do not restrict the creditor's use of such remedies in time. Practical significance. The paper establishes that the right to exercise the protection authority, which is part of the content of the relevant protection obligation, exists for the duration of the right, except when the law explicitly establishes a special term of its validity. The violated substantive law after the expiration of the statute of limitations does not remain completely unprotected, although the degree of its protection is somewhat reduced.

The Right of a Party to Administrative Proceedings to Obtain a Properly Prepared Administrative Decision

2020 ◽  
Vol 2(22) ◽  
pp. 47-61
Author(s):  
Jakub Szremski
Keyword(s):  
Point Of View ◽  
Right To Know ◽  
Administrative Process ◽  
A Value ◽  
Democratic State ◽  
The Right To Know ◽  
Administrative Proceedings ◽  
The Right ◽  
Procedural Rights

The right of a party to administrative proceedings to obtain a properly prepared administrative decision is a value resulting from the principle of a democratic state ruled by law, as well as the right of an individual to the administrative process. From this general value, the addressee of this act will have specific procedural rights: the right to conclude all elements of the decision; the right to know the comprehensive justification for taking a specific decision – important from the point of view of the possibility of challenging the decision by means of appeal; the right to justify any decision – even a positive decision.

Some Aspects of Standing Capacity of a Citizen in Constitutional Proceedings

2019 ◽  
pp. 27-33
Keyword(s):  
Russian Federation ◽  
Point Of View ◽  
Constitutional Rights ◽  
Legal Process ◽  
Legal Personality ◽  
Legal Proceedings ◽  
Legal Nature ◽  
Analysis And Synthesis ◽  
The Moment ◽  
The Right

The legislation of Russian Federation does not determine the moments of occurrence and termination of standing capacity of a citizen in a constitutional legal process. At the same time, the absence of appropriate procedural rules means that the procedure for protection of citizens’ constitutional rights in constitutional proceedings remains uncertain. Using the methods of analysis and synthesis, the author examines some aspects of standing capacity of a citizen in a constitutional legal process from the point of view of its conditionality to the material legal personality. The author proceeds from the point that the right to be a participant of a constitutional legal proceeding exists within constitutional relations between the multinational people of Russian Federation and the state regarding the adoption and application of laws, and serves in an inseparable relationship to the goals of protecting constitutional rights and freedoms of man and citizen.. The article substantiates the emergence of standing capacity of a citizen in constitutional legal proceedings from the moment of birth and its termination by death. The legal nature of individual constitutional rights implies their existence after the death of a person, so it is proposed to use the institute of procedural succession in constitutional legal proceedings. With regard to procedural capacity, the attention of readers is drawn to the need for its completion by procedural norms for those persons who, for various reasons, do not have full legal capacity.

REFUSAL OF INHERITANCE AS ONE OF THE PROCEDURES OF INHERITANCE RELATIONS

2020 ◽  
Author(s):  
Хусейн Вахаевич Идрисов ◽  
Марем Исмаиловна Кужулова
Keyword(s):  
Civil Law ◽  
Point Of View ◽  
Inheritance Law ◽  
Legal Instrument ◽  
The Right

Статья посвящена характеристике такой правового инструмента в наследственном праве как отказ от наследства. Гражданское право в части третьей, в которой регулируются наследственные правоотношения, предусматривает право лица, возможность отказа от наследства, в пользу иных лиц или же без указания конкретного лица. В данной статье с правовой точки зрения приведена характеристика указанного права, то есть, его порядок и условия, а также основные проблемы возникающие при этом, в частности, возникающие спорные ситуации с признанием такого отказа недействительным. The article is devoted to the characteristic of such a legal instrument in inheritance law as the refusal of inheritance. Civil law in part three, which regulates inheritance relations, provides for the right of a person, the possibility of renouncing the inheritance, in favor of other persons or without specifying a specific person. In this article, from a legal point of view, the characteristic of this right is given, that is, its procedure and conditions, as well as the main problems that arise in this case, in particular, disputes arising with the recognition of such a waiver as invalid.

scholarly journals VII Rapporto sull’attuazione della L. 40/2004 per l’anno 2013 con specifico riferimento all’art.1 Prospettive derivanti da alcune sentenze costituzionali

2015 ◽  
Vol 64 (4) ◽  
Author(s):  
Carlo Casini
Keyword(s):  
Hereditary Diseases ◽  
Human Embryos ◽  
Human Beings ◽  
Legal Proceedings ◽  
Medically Assisted Procreation ◽  
Italian Law ◽  
Assisted Procreation ◽  
The Right To Know ◽  
Negative Effect ◽  
The Right

La Legge 40 del 19 febbraio 2004 che regola la PMA nel suo art. 1 indica gli scopi perseguiti: il superamento della sterilità delle coppie e la garanzia dei diritti di tutti i soggetti coinvolti compreso il concepito. Le relazioni ministeriali sull’attuazione della legge riferiscono a ogni anno sulla attuazione delle nuove tecniche, ma esclusivamente con riferimento al primo dei due obiettivi ora indicati. È doveroso, verificare se anche il secondo scopo è stato perseguito e in quale misura. Ciò è divenuto particolarmente urgente dopo le sentenze costituzionali che hanno reso lecita la generazione soprannumeraria di embrioni, la PMA eterologa, il ricorso alla PMA anche da parte di coppie non sterili ma portatrici di malattie potenzialmente ereditarie. Nell’impossibilità di modificare le sentenze costituzionali il cui effetto più negativo consiste nell’accumulo di embrioni congelati e rimasti privi di un progetto parentale, lo studio propone una serie di strumenti per limitare la lesione dei diritti del concepito. In particolare si propone che la forma eterologa della PMA possa attuarsi soltanto utilizzando gli embrioni già formati congelati e abbandonati. Viene ipotizzata anche una possibile obbligatoria rappresentanza processuale dei concepiti nelle vicende giudiziarie in cui i loro diritti sono in discussione; si argomenta contro l’anonimato dei c.d. donatori di gameti differenziando il regime del diritto a conoscere le proprie origini nelle diverse situazioni dell’adozione e del parto di donne che non vogliono essere nominate; viene auspicato l’intervento ministeriale per garantire che la generazione soprannumeraria avvenga soltanto nei casi in cui essa sia “strettamente necessaria” così come la legge continua a richiedere (art. 13); si dimostrava la netta differenza tra la diagnosi genetica pre-impianto e la diagnosi prenatale con riferimento alla tutela del concepito. ---------- The Italian Law n. 40 of February, 19, 2004 (Rules governing medically assisted fertilization), in its Article 1 focuses on two goals: to remedy reproductive problems arising as a result of human sterility or infertility and guarantee the rights of all the subjects concerned, the human embryo included. Every year on the ground of Art. 15, the Minister of Health draws up a report regarding the implementation of the Italian Law n. 40/2004, but only the first of the two goal is taken into account. Therefore, it is necessary understand if the second goal has been pursued and to what extent. Reflecting on this has become particularly urgent after the constitutional decisions that made lawful the generation of supernumerary embryos, the heterologous fertilization, the resort to “medically assisted procreation” by non-sterile couples but potentially carriers of hereditary diseases. Unfortunately, it isn’t possible to change the constitutional rulings whose most negative effect is the storage of cryopreserved embryos and their abandon without a parental project. In the light of this situation, the paper here summarized proposes a set of instruments in order to limit injuries to the rights of the human embryos. Notably, it is suggested that the heterologous fertilization may be implemented only by using the frozen and abandoned embryos already generated. It is also hypothesized a possible mandatory procedural representation of the human embryos in the legal proceedings in which their rights are debated; it is argued against the anonymity of the so-called “gamete donors” (as to this regard the rules on the right to know their origins are different depending on the different situations like adoption and childbirth of women who do not want to be named). Moreover the Ministerial intervention is called for ensuring that the supernumerary generation of human embryos is realized only when it is “strictly necessary” as the law continues to require (art. 13). Finally it is showed the clear difference between the genetic pre-implantation diagnosis and prenatal diagnosis with reference to the protection of the human beings at the beginning of their life.

scholarly journals THE JURIDICAL NATURE OF TERMINATION OF SUBJECTIVE CIVIL RIGHT

2020 ◽  
Vol 33 (20) ◽  
pp. 47-52
Author(s):  
V.Ya. Pohrebniak
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Point Of View ◽  
Subject And Object ◽  
Definition Of ◽  
Structural Connection ◽  
The Right ◽  
The Relationship ◽  
Complex Influence

The article is devoted to the consideration of the essence of termination of subjective civil right as juridical possibilities of appropriate person ensured by provisions of civil law of Ukraine. Ignoring the widespread understanding of termination of subjective civil right as the termination of its belonging to a person the author proposes an alternative point of view on this problem. The independent character of appropriate phenomenon determines the necessity of designation the essence of its termination as an element of juridical reality. In this context, the termination not always mean the termination of belonging of appropriate subjective civil right to a person. The problem is researched by the author in the context of structural connection between elements of juridical construction of civil relationship and terminative influence of juridical facts over them. Particularly the order of termination of the subjective civil right related to its realization and to a waiver of it is analyzed. Considerable attention is paid to termination of the subjective civil right that is the result of the termination of a subjective civil obligation that corresponds to such right, termination of subject and object of relationship. The author also determines juridical schematizations related to the complex influence of terminative circumstances over civil relationships. The content of the sign of absolute termination of a subjective civil right is concretized in the article. It is defined that it means termination of subjective civil right absolutely, but not the only termination its belonging to bearer. The termination of subjective civil right doesn’t relate to its emergence at another person that is the transfer of the right. It is defined that termination of subjective civil rights also characterized by finality. This characteristic concretizes juridical situations in which appropriate juridical consequences appear. Finality means that the termination of the right doesn’t provide its renascence at the appropriate person in concrete circumstances of the juridical situation. The article contains the author’s definition of termination of subjective civil rights. Keywords: termination of right, termination of the relationship, waiver of a right, the realization of right, absolute termination, finality termination.

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