scholarly journals INTERRELATION BETWEEN RESTITUTION AND UNJUST ENRICHMENT: LESSONS LEARNED FROM THE EXPERIENCE OF ANGLO-AMERICAN LEGAL SYSTEM

2016 ◽  
Vol 1 (6) ◽  
pp. 0-0
Author(s):  
Анна Джанаева ◽  
Anna Dzhanaeva
Keyword(s):  
Legal System ◽  
Legal Status ◽  
Lessons Learned ◽  
Protection Measure ◽  
Law System ◽  
Unjust Enrichment ◽  
Judicial Practice ◽  
Russian Law ◽  
Anglo American ◽  
American Legal System

The article deals with the interrelation between restitution and unjust enrichment in the Russian and Anglo-American legal systems. The analysis is based on theoretical scientific opinions, as well as on the legislation and judicial practice. The article notes that in the Russian law the “absence of grounds” principle is used for unjust enrichment (which means that if there is no legal basis for enrichment, the rules on unjust enrichment should be applied), and in order to apply the restitution rules one must prove the “unfair factor” in the form of an invalid transaction (the basis for the application of legal rules is specified). The first approach is typical for unjust enrichment in the continental law system, the second one — in the Anglo-American legal system. The Russian legislation thereby simultaneously uses two criteria — most situations are covered by the “absence of ground” principle, and restitution as a consequence of transaction invalidation is set aside, in this situation the “unjust factor” principle is applied. Mixing two different approaches seems unjustified. In addition, the author notes that legal consequences and the nature of restitution and unjust enrichment in the Russian law are basically the same — both institutions have the aim to restore the legal status that existed before the person who unjustly enriched himself breached the law. The author concludes that there is a need to avoid duplication of legal institutions of unjust enrichment and restitution in the Russian law, and to make restitution a universal protection measure for any event of unjust enrichment.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

scholarly journals Precedent as a Core Component of Anglo-American Law and Its Penetration into the Legal System of Ukraine

2020 ◽  
pp. 119-127
Author(s):  
Nepyivoda Vasyl ◽  
Nepyivoda Ivanna
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Tradition ◽  
Stare Decisis ◽  
Law System ◽  
American Law ◽  
Judicial Lawmaking ◽  
The Common ◽  
Anglo American

The Anglo-American law have a considerable amount of accomplishments, which have become a worldwide asset. In terms of globalization and interaction, to use these achievements would be beneficial for further development of Ukrainian legal system. However, the very philosophy and reasoning behind the precedent-based common law is different from that in the civil law tradition of which the Ukrainian law is a part. This paper is intended to contribute to the examination how the mechanism of Anglo-American law operates in view of the expediency to introduce some of its elements into the Ukrainian jurisdiction. The initial part devoted to the emergence of, and formation of, the common law. It is noted that in the case of common law the influence of Roman law should not be denied. Relying mostly on praetorium ius experience, it has manifested itself in other directions and forms compare to civil law system. Therefore, the both, common law and civil law, despite their differences have been formed on the common ground – the Roman legal tradition. Taking into consideration that throughout their history they exchanged fruitful ideas, there is no irreconcilable, "genetic" incompatibility between them. Thus, it would allow to successfully implant certain common law elements, first of all precedent as a source of law, in the body of Ukrainian law, a part of civil law system. The paper notes that issues of common law mechanism have never been a priority for scholarly research in Ukraine as in a country of civil law tradition. The inertial influence of the Soviet law has also contributed to this situation. According to the communist ideology and the positivist visions on which the Soviet law was based, the precedent has not been considered as an acceptable legal instrument. In order to clarify how the mechanism works, the paper provides an overview of precedent and stare decisis doctrine as key components of common law. While a principle of stare decisis binding courts to follow legal precedents in cases with similar circumstances is in the core of Anglo-American law, in civil law systems precedent is not considered as binding. This discussion is followed by an analysis of judicial lawmaking. The paper specifies that in the common law systems, courts are not absolutely bound by precedents. In terms of radical changes in political, social or legal areas, they are entitled to re-examine and apply the law differently without legislative intervention, to adapt it to new circumstances. Thus, the Anglo-American legal tradition provides much broader scope for judicial lawmaking than Romano-German law. However, there is no consensus on the range to which it should be extended and to which extent it should rely on precedent. Within the framework of this controversial issue judicial activism and judicial restraint, two opposite philosophies of making a ruling in common law, are addressed. In order to examine the multifaceted nature of correlation between stare decisis principle and judicial lawmaking, the latest experience of the Supreme Court of the United States' on overruling precedents is considered. The paper summarizes that, most likely, mixed legal system associated with Nordic countries should be set as the reference point for the movement of Ukraine in this area. Such approach would provide rather broad scope for the operation of the common law elements, while safeguarding its omissions such as unjustified judicial activism.

scholarly journals Current Issues in Reforming the Institution of Acquisitive Prescription in Russia, England, Hong Kong and Australia

2021 ◽  
Vol 16 (10) ◽  
pp. 184-190
Author(s):  
A. A. Martynova
Keyword(s):  
Hong Kong ◽  
Legal System ◽  
Good Faith ◽  
Property Law ◽  
Legal Analysis ◽  
Legislative Reform ◽  
Foreign Experience ◽  
Anglo American ◽  
American Legal System ◽  
Controversial Nature

The author examines the problems of reforming the institution of acquisitive prescription in Russia, England, Hong Kong and Australia, and suggests some ways to solve them. The study was conducted with the aim of a detailed study of the institution of acquisitive prescription in continental and Anglo-American legal families. In addition, the author sets the goal of establishing the influence of foreign experience of changing the provisions on acquisitive prescription on the Russian reform of prescription ownership based on a comparative legal analysis of the already carried out legislative reform in England and the proposed changes in the real law of Russia, Hong Kong and Australia. The author makes conclusions on the controversial nature of the alleged provision on the rejection of the criterion of good faith of prescription ownership in Russia, on the narrowness of the declared goal of the Russian reform of the institution of acquisitive prescription; the indirect influence of the foreign experience of reforms in the jurisdictions of the Anglo-American legal system on the Russian reform of property law has been established.

INNOCENCE AND LIMITED INNOCENCE: THE PRACTICE OF THE ANGLO-AMERICAN LEGAL SYSTEM

2019 ◽  
pp. 48-54
Author(s):  
Ivanna Polonka
Keyword(s):  
Mental Illness ◽  
Legal System ◽  
Comprehensive Analysis ◽  
Practical Significance ◽  
Administration Of Justice ◽  
Legal Criterion ◽  
Anglo American ◽  
American Legal System ◽  
Extensive List ◽  
Logical Semantic

Purpose. The purpose of this paper is to study the norms of the Anglo-American legal family regarding the сriteria for innocence of the incapacitated subjects of objectively unlawful acts: medical and legal criteria. Methodology. The methodology includes a comprehensive analysis and a synthesis of available scientific and theoretical information. It is includes the formulation of relevant conclusions and recommendations. Such methods of scientific knowledge were used: terminological, logical-semantic, functional, systemic-structural, comparatively legal. Results: In the course of the study, it was recognized that the law of countries within the Anglo-American legal system was characterized by clear problems with the formulation of both legal and medical criteria of insanity. The main reason for this omission is the application in practice of judicial precedents that have been adopted since the last century. Originality. The study identified a number of shortcomings of the Anglo-American legal family in determining the criteria of insanity, namely: there is no strong-willed character of the legal criterion; their indisputable character makes it impossible to deduce the intermediate states of the human psyche; the circumstances that the crimes may be committed by persons whose “defect of mind” does not take place as a result of mental illness are not taken into account; the burden of proving insanity is transferred to the defendant himself. The medical criterion of insanity in the Anglo-American legal family also raises a number of remarks, the main of which is a fairly extensive list of forms of mental illness and abnormalities, which provokes impunity for potential criminals. Practical significance. The results of the study can be used in law-making and enforcement activities in the administration of justice against incapacitated persons.

Parental legal authority to determine and change the name, patronymic and surname of children: continuity of approaches in the Soviet and Russian legal systems

2021 ◽  
Vol 2021 (1) ◽  
pp. 78-87
Author(s):  
Nataliya Burdanova
Keyword(s):  
Legal System ◽  
Legal Status ◽  
Family Law ◽  
Parental Authority ◽  
Legal Authority ◽  
Russian History ◽  
Judicial Practice ◽  
Parents And Children ◽  
Legal Situation ◽  
History Of

Using the example of parental powers to determine and change the name, patronymic and surname of children, the article examines the regularity of the formation and development of the institution of personal non-property rights and responsibilities of parents in Russia. The author describes the legal situation of parents and children established in the monarchic period of Russian history by 1917. Issues such as the prerequisites for the establishment of the legal institution of the branch of family law in the Soviet legal system and the nature and causes of changes in the legal status of children depending on the legality of birth have been raised. The rights and duties of parents, differences in the legal status of men and women, and the influence of marital status and other circumstances were considered. The main sources of the study were normative legal acts and judicial practice of the Soviet and Russian periods of the history of the national state and law. The study concluded that a comprehensive approach had been developed in Soviet family law to regulate parental authority to determine and change the children’s first name, patronymic and surname. The modern Russian legal system has adopted rules establishing parental authority to determine and change the children’s first name, patronymic and surname of the Soviet legal system.

scholarly journals Correspondence of the Current Russian Legislation to WTO Norms

2019 ◽  
Vol 14 (1) ◽  
pp. 34-53
Keyword(s):  
Intellectual Property Rights ◽  
Future Development ◽  
Large Scale ◽  
Legal Status ◽  
Point Of View ◽  
International Organization ◽  
Judicial Practice ◽  
The Subject ◽  
Russian Law ◽  
Lengthy Process

The article is dedicated to the consideration of Russia’s accession to the WTO from the point of view of legislation. Being a member of this international organization required complex work on changing the existing laws and adopting new domestic legal acts. Activity regarding checking laws and secondary acts which were supposedly already in line with the WTO requirements was large-scale. The very fact that negotiations on accession of our state to the WTO lasted for 18 years is quite eloquent. One of the reasons for such a lengthy process was the necessity to introduce a large number of changes to the Russian legislation. The significance of this work cannot be overestimated. The aim of the article is to find the answer to the question of how much the current Russian legislation accords with normative provisions of the WTO. In attempts to find the answer, the author conducted a thorough and substantial research of domestic and international legal acts applied in this field, as well as judicial practice and doctrine. In the spotlight of the article are such issues as the structure of the WTO law, its legal status and correlation within itself and rules of the Russian law. Classification and the subject of Russian obligations undertaken as a result of accession to the WTO are equally important. The presented results reveal some discrepancies and indicate the way of future development of the Russian legislation so as to bring it into conformity with the WTO rules. In addition, they could help in ensuring proper protection during resolution of disputes by the WTO judicial bodies. An example of such a problematic sphere is regulation of intellectual property rights.

scholarly journals Some Specific Features Of Foreign Language Legal Concept Formation In Perception Of Law Students

2020 ◽  
Vol 88 ◽  
pp. 01016
Author(s):  
Enrique Quero Gervilla ◽  
Lilia Moiseenko ◽  
Maria Vikulina ◽  
Tatyana Uskova
Keyword(s):  
Foreign Language ◽  
Legal System ◽  
Native Speaker ◽  
Law Students ◽  
Legal Concept ◽  
Legal Communication ◽  
Anglo American ◽  
American Legal System ◽  
Legal Concepts ◽  
The Mind

In the process of studying a foreign language a student develops a conceptual view of the world similar to that of a native speaker’s. The structures of basic second language concepts formed in the process of education manifest certain differences from the concept structure in a native speaker’s perception. Similarities in the perception of a legal concept nucleus in the mind of a foreign language student and a native speaker play an essential role in legal communication, since inaccuracy of perception and misunderstanding may result in negative legal consequences. The authors believe it is important to make a point of associative-verbal networks which include different foreign language legal terms and are fixed in the minds of students who study legal English and the Anglo-American legal system. The purpose of the study is to reveal how well associative-verbal links and structures of legal concepts have been formed in the minds of law students, who study legal English and the Anglo-American legal system, as well as to examine the principles according to which associates get fixed in their minds. As a research method the authors applied a free associative experiment, since this is the easiest way to establish links between ideas and concepts in an individual’s mind.

scholarly journals Informing reform: The views of legal professionals on the unique aspects of Scottish Law

2021 ◽  
pp. 002580242199291
Author(s):  
Lee John Curley ◽  
James Munro ◽  
Lara A Frumkin ◽  
Jim Turner
Keyword(s):  
Decision Making ◽  
Legal System ◽  
Online Survey ◽  
Simple Majority ◽  
Political Debate ◽  
Legal Professionals ◽  
Positive Attitudes ◽  
Qualified Majority ◽  
Anglo American ◽  
American Legal System

The unique Scottish legal system stands apart from the better-known Anglo-American legal system, with variations relating to jury size (15 vs. 12), the number of verdicts available (3 vs. 2) and majority size (simple majority vs. unanimous). At present, only a handful of investigations have explored the effects of the Scottish ‘not proven’ verdict on jurors, and only a single study has explored the combined impact of the unique elements of the Scottish legal system on juror and jury decision making. The current study is the first to investigate the views of Scottish legal professionals on the three-verdict system, 15-person jury and simple majority verdict system. The aim of the study is to inform public and political debate, involve legal stakeholders in policy changes and decision making and compare legal professionals’ views with findings from previously conducted juror studies. Seventy-eight legal professionals took part in an online survey which asked for ratings and open responses on their attitudes to the Scottish (a) three-verdict system, (b) 15-person jury and (c) simple majority system. The results highlighted strong positive attitudes towards the ‘not proven’ verdict (particularly in a binary-verdict system of proven and not proven), 15-person juries and both the simple and qualified majority verdict systems. There was minimal support for reform towards an Anglo-American system. Instead, the reforms preferred by the legal professionals would be to require a qualified majority of 12/15 jurors, and to use a binary-verdict system of proven and not proven.

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