Judicial Discretion: Theory and Practice of Regional Applications

2016 ◽  
Vol 4 (7) ◽  
pp. 0-0
Author(s):  
Татьяна Лопатина ◽  
Tatyana Lopatina
Keyword(s):  
Law Enforcement ◽  
Point Of View ◽  
Theory And Practice ◽  
Judicial Discretion ◽  
Judicial Decision ◽  
Regional Study ◽  
Judicial Decision Making ◽  
Judicial Practice ◽  
Criminal Statute ◽  
Principle Of Justice

The article presents the author´s point of view on the problematic issues of judicial discretion within the framework of implementation of the principle of justice with regard to law enforcement practice of courts of General jurisdiction. The goal of the study is the actualization of theoretical provisions and making recommendations for improving the effectiveness of fair practice purposes of criminal punishment. The author considers judicial discretion from the standpoint of the relativity of freedom of choice in judicial decision making, which is conditional and limited, as it is done within the suggested limits of the criminal statute, or is done within the limits, directly or indirectly determined by the science of criminal law, or jurisprudence, but at the same time all variants are equally legitimate and justified. The article provides the results of a regional study of the practice of criminal sentencing with the use of systemic-structural, concrete sociological, statistical methods of scientific cognition, and comparative analysis, analysis of legislation and judicial practice.

ARBITRATION FLASH JUSTICE?

2021 ◽  
Vol 11 (1) ◽  
pp. 60-77
Author(s):  
A.R. SULTANOV
Keyword(s):  
Law Enforcement ◽  
Point Of View ◽  
Judicial System ◽  
Court Decision ◽  
Sources Of Information ◽  
Judicial Decision ◽  
Criminal Proceedings ◽  
Russian Science ◽  
Administration Of Justice ◽  
External Conditions

In this article, the author attempts to comprehensively consider such a concept as “flash justice”. The study of this concept, new for Russian science, takes place through the prism of law enforcement practice and the use of many illustrative examples of judicial acts, interviews with representatives of the judicial system and other sources of information. The mentioned phenomenon is considered and evaluated from the point of view of not only civil and arbitration, but also criminal proceedings, where examples are more colorful and clear. The author also cites foreign, in particular English, legal experience as an example. Thus, it is noted that a draft judicial act can be prepared by both the court staff, and its individual provisions can be prepared by the parties. At the same time, the existing guarantees related to the prevention of misleading the judge, as the author notes, contribute to the formulation of the draft court decision, which reflects only the objective facts established by the court and meets the criteria of truth and legality. Also, the article indirectly touches on certain retrospective aspects related to the development of the institution of judicial decision, as well as its transformations in the light of the changing external conditions of the administration of justice.

scholarly journals Coordinating activity of independent legal entities: issues of law enforcement in conditions of economy digitalization

2019 ◽  
pp. 60-67
Author(s):  
Yu. Yu. Borisova ◽  
I. V. Akimova
Keyword(s):  
Law Enforcement ◽  
Economic Activity ◽  
Legal Regulation ◽  
Point Of View ◽  
Operating Conditions ◽  
Negative Effects ◽  
Judicial Practice ◽  
Stage Of Development ◽  
Legislative Changes ◽  
The Coordinator

In article authors investigate questions of the operating legal regulation of coordination of economic activity of independent economic entities, including questions of its legisla- tive definition and signs. Article contains the detailed analysis of the most interesting examples of judicial practice and practice of antimonopoly authorities on the matter. Authors, analyzing the current legal regulation, also give an assessment to the planned changes in the legislation in this part and state the point of view about dependence of legal assessment of actions of the coordinator and the economic entities coordinated by it on operating conditions of commodity markets on which it is carried out. As a result of a research authors drew a conclusion on need of legislative changes in a part of admis- sibility of the forbidden coordination provided that the advantage for consumers of such coordination exceeds negative effects for the competition.A significant amount of works of the modern scientists and experts investigating a per- spective of institutes of the antitrust law is devoted to questions of legal qualification of coordination of economic activity of independent economic entities in legal scientific literature.The matter was also raised in publications and authors of the "Rossiyskoye Konkurent- noye Pravo I Ekonomika" magazine, at the same time, it should be noted that to consid- eration of questions of coordination of activity smaller attention is paid, than, for ex- ample, to questions of cartels.Thus, degree of scientific readiness of the matter in general is rather high, at the same time to authors the relevance of this subject and need of the analysis and assessment of the operating regulation taking into account economic features of the present stage of development of the markets seems to be of high interest.

Justice and equity

2021 ◽  
Author(s):  
Mihail Kleandrov
Keyword(s):  
Law Enforcement ◽  
Graduate Students ◽  
Point Of View ◽  
Law Students ◽  
Death Sentence ◽  
Judicial Discretion ◽  
Law Enforcement Agencies ◽  
Legal Norms ◽  
Court Proceedings ◽  
Rule Making

The monograph examines the fundamental problems of justice from the point of view of the need to ensure organizational and legal means of justice in judicial activity. The problems of philosophical, legal and other approaches to understanding justice and the mechanism of justice are studied; the problems of justice in the system of current legislation, including in the conditions of uncertainty of legal norms, within the framework of judicial discretion, in judicial law - making and rule — making; the problems of evidence in court proceedings; the problems of fair justice in extreme conditions of the coronavirus pandemic; as a vector of the future-the problems of justice carried out by artificial intelligence; the problem of justice of the death sentence. Proposals aimed at improving the mechanism of fair justice are being made. For employees of legislative, judicial and law enforcement agencies, active judges and those who want to become them, scientists, teachers, graduate students and law students, as well as for practicing lawyers.

scholarly journals Role of the Plenum of Russian Supreme Court in the judicial practice formation

2022 ◽  
Vol 5 (4) ◽  
pp. 209-225
Author(s):  
Yu. S. Pestereva ◽  
I. G. Ragozina ◽  
E. I. Chekmezova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Complex Analysis ◽  
The Other ◽  
Judicial Discretion ◽  
Dialectical Theory ◽  
Judicial Practice ◽  
Other Hand ◽  
The Law

The subject. The article considers the role of the Plenum of Russian Supreme in forming judicial practice on the example of giving qualification to the crimes committed against sexual freedom and inviolability, as well as against property and public health.The objective of the article is to conduct a complex analysis of the function of the decisions, taken by the Plenum of Russian Supreme Court, in the formation of a unified vector of judicial practice. The authors dare to refute the hypothesis hat judicial practice can be recognized as a source of law.The methodological basis of the research is the dialectical theory of development and interrelation of phenomena. Historical, formal-logical, systematic methods of knowledge have been identified as relevant to the topic of the study.The main results, scope of application. The authors draw attention to the problem of evaluative features used in the process of law enforcement when interpreting the norms of the Special Part of the Criminal Code of the Russian Federation. A norm with such signs acquires an unformalized essence from the point of view of the boundaries of criminalization of a particular phenomenon. On the other hand, the nature of crimes is so diverse that without the flexibility of criminal law regulation (allowing the use of evaluative features), the application of the norm taking into account specific circumstances in a particular case may not be possible. The authors also consider issues related to the characteristics of the objective side, the end time of these crimes, the application of the formula of a single ongoing crime and its separation from related compounds. The process of law enforcement is based on such guidelines as the norms of law, judicial discretion, established judicial practice, the position of the Plenum of Russian Supreme Court. Attributing an explanatory role to the decisions of the Plenum of Russian Supreme Court does not completely eliminate the shortcomings inherent in legal technology. Correcting the current situation with the help of judicial discretion is not always justified, since this is possible only if there is a legitimate alternative. Assigning the status of a precedent to a judicial decision may lead to the substitution of the law by decisions taken in a particular case.Conclusions. The judicial practice concerning these issues is completely different. Despite the existence of similar situations, courts, as a rule, qualify an offense using various norms of the law, which negatively affects compliance with the principle of legality. The issue related to the function of the decisions of the Plenum of Russian Supreme Court in the formation of a single vector of judicial practice has been and remains debatable. The continued addition of new articles to criminal legislation, on the one hand, indicates the desire of the legislator to bring it to perfection, but, on the other hand, forms a mechanism for clarifying the rules of its application, which sometimes leads to their contradictory interpretation. At the same time, crime and punishment should be determined only by legislation.

scholarly journals CONTRACTUAL BASIS FOR TERMINATION OF CIVIL LEGAL OBLIGATIONS: PROBLEMS OF THEORY AND PRACTICE OF APPLICATION

2021 ◽  
Vol 31 (6) ◽  
pp. 1054-1058
Author(s):  
N.V. Kuznetsova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Code ◽  
Theory And Practice ◽  
Freedom Of Contract ◽  
Judicial Practice ◽  
Legal Obligations ◽  
Problematic Issue ◽  
The Russian Federation

The article considers contractual grounds for termination of civil obligations: compensation, innovation, debt forgiveness. The paper notes some problems of the application of Articles 409, 414, 415 of the Civil Code of the Russian Federation in judicial practice, analyzes the issues of the ratio of compensation and innovation, the differentiation of these contracts. The problems of qualification of agreements on the grounds for termination of obligations in law enforcement practice and the question of applying the principle of freedom of contract to the relations under consideration are considered. It is noted that at present the practice of applying the legislation on compensation has changed significantly. Despite the restrictions established by the norm of Article 409 of the Civil Code of the Russian Federation, judicial practice allows the possibility of using works and services as a subject of compensation, which leads to problems of distinguishing such contractual grounds for termination of obligations as compensation and innovation. With regard to the innovation, an analysis of the provisions on the possibility of novating the penalty into a loan obligation is given. A problematic issue is the legal qualification of debt forgiveness as a basis for termination of an obligation. It is noted that the contractual nature of debt forgiveness should be taken into account. Acceptance of notification by the debtor's creditor of his release from the performance of his duty is the silence of the debtor (clause 2 of Article 438 of the Civil Code of the Russian Federation). The article also considers the question of the ratio of debt forgiveness and donation. The analysis of judicial practice shows that the courts do not consider debt forgiveness as a gift, except in cases when the creditor released the debtor from the performance of the obligation free of charge. In this case, the norms of Article 168 of the Civil Code of the Russian Federation and paragraph 4 of Article 575 of the Civil Code of the Russian Federation are subject to the application of debt forgiveness.

scholarly journals JUSTICE IN CRIMINAL LAW: MATERIAL OR IDEAL CATEGORY?

2020 ◽  
Vol 6 (4) ◽  
pp. 43-46
Author(s):  
M. V. Konovalchuk
Keyword(s):  
Criminal Law ◽  
Level Structure ◽  
World Order ◽  
Point Of View ◽  
Judicial Practice ◽  
Moral World ◽  
Material Substance ◽  
Principle Of Justice ◽  
Constitutional System

The article examines the criminal law principle of justice from the point of view of traditional philosophical thought, which assumes the division of the world into an ideal and material substance. As an example of the ideal substance of justice, the author suggests considering the moral world order, a particular manifestation of which should ideally be the constitutional system of a particular state. The material substance of justice, in the author's opinion, should be clearly refl ected in the norms of the criminal law. As a theoretical premise of the stated approach, the assumption is put forward that a person as a personal Creator and performer of law, passing through the idea of justice as a fundamental socio-philosophical, political and legal phenomenon, formulates the criminal law principle of justice. This approach plays an important methodological role in overcoming one-sided trends in the consideration of its nature and assumes its construction on the basis of a two-level structure that includes legislative and law enforcement elements. On the basis of the position put forward by the famous philosopher Thomas Aquinas on the requirements imposed on the law, analyzes the judicial practice and norms of the current criminal law for its compliance with the principle of justice. The thesis that its effective implementation is an indicator of the quality of the criminal law is substantiated.

scholarly journals The Content of a Paid Medical Services Contract: Theoretical and Applied Analysis

Legal Concept ◽  
2021 ◽  
pp. 89-99
Author(s):  
Denis Matytsin ◽  
Tatyana Plaksunova
Keyword(s):  
Law Enforcement ◽  
Point Of View ◽  
Medical Services ◽  
Judicial Practice ◽  
Legitimate Interests ◽  
General Scientific ◽  
The Russian Federation ◽  
Contract Structure ◽  
The Government ◽  
Practice Methods

Introduction: the paper deals with the features and conditions of a contract structure that is widely in demand at the present time – a paid medical services contract. The paper analyzes the provisions of the key legal acts regulating the sphere of paid medical services, including their contractual formalization, the legislation on consumer protection, which applies to the legal relations of the parties arising from paid medical services contracts, and the content of this contract. Special attention is paid to the consideration of the legislative and doctrinal approaches to the issue of essential and mandatory conditions of the contract under consideration, as well as to the relevant judicial and contractual practice. Methods: in the presented research, the traditional general scientific research methods were used, such as the dialectical method of cognition, analysis, synthesis, induction, deduction, etc., as well as the specific scientific legal methods, including formal legal, the method of legal interpretation, etc. Results: the authors substantiate the point of view that the essential conditions of the paid medical services contract are only the conditions on its subject. The authors believe that the conditions stipulated in par. 17 of the Decree of the Government of the Russian Federation No. 1006 of 04.10.2012 “On approval of the Rules for providing paid medical services by medical organizations” should be considered as mandatory conditions. Taking into account the existing approaches in the law enforcement practice, the conditions that are reflected in the paid medical services contract would help prevent disputes, as well as protect the rights and legitimate interests of the parties to the contract. Based on the analysis of the judicial practice, a list of conditions of the paid medical services contract that infringe on the rights of consumers has been formed, which should not be included in it. Conclusions: based on the results of the study, the two groups of factors were identified, which influence the formation of the methodological recommendations for drawing up a paid medical services contract; the recommendations for improving contractual work in the medical organizations are formulated.

scholarly journals The Coordination of Activities of the Law Enforcement Agencies in the Fight Against Crime

Legal Concept ◽  
2021 ◽  
pp. 26-32
Author(s):  
Ekaterina Azarova ◽  
Vyacheslav Vnukov
Keyword(s):  
Law Enforcement ◽  
Organizational Support ◽  
System Analysis ◽  
Criminal Activity ◽  
Point Of View ◽  
Theory And Practice ◽  
Russian Society ◽  
Legal Analysis ◽  
Law Enforcement Agencies ◽  
The Law

Introduction: in modern Russian society, the fight against crime requires the legislative regulation. Crime is a multifaceted phenomenon that is becoming more complex in parallel with the development of society. Its growth makes it necessary to research the fundamentals of the theory and practice of coordinating the activities of the law enforcement agencies in the fight against crime. The important factors from the point of view of the state of coordination activities are their proper organizational support, the development of the right strategies and tactics when performing the necessary actions, as well as their effective use by the law enforcement agencies to curb criminal activity. The authors of the paper set the goal of the study, which is to analyze the coordination activities of the law enforcement agencies in the fight against crime. Methods: the methodological framework for the research is the dialectical-materialistic method of cognition, which includes the elements of system analysis, and the specific scientific methods, such as the logical and legal one. Results: based on the legal analysis, the content of coordination activities as the effective coordinated actions in the fight against crime is revealed. Conclusions: it is revealed that there is a need to adopt a special law aimed at improving the status of prosecutors in the framework of these coordination activities.

ABANDONMENT OF MOTHERHOOD IN THE SYSTEM OF LEGAL FACTS: PROBLEMS OF DISCREPANCY BETWEEN THEORY AND PRACTICE

2021 ◽  
pp. 126-136
Author(s):  
Natalya A. Ablyatipova ◽  
Keyword(s):  
Law Enforcement ◽  
Adoptive Parents ◽  
Theory And Practice ◽  
Parental Rights ◽  
Inappropriate Use ◽  
Judicial Practice ◽  
Parents And Children ◽  
Imple Mentation ◽  
The One ◽  
The Right

The problem of improving the norms of family law in terms of protecting the rights and interests of parents and children is long overdue. At first glance, the current Russian family legislation sufficiently regulates the issues of establishing the origin of children, the issues of birth registration and the rules for specifying the child's parents. However, one of the gaps is the voluntary refusal to exercise parental authority. In the legislation, the term "abandonment of a child" does not exist, but in fact, in practice, it is possible to perform this action. The issues of the legal nature of the parents ' rejection of the child, its content and legal conse-quences are not given sufficient attention, while the lack of a theoretical basis not only hin-ders the improvement of legislation, but also leads to a "free" interpretation of the current norms by law enforcement entities. In this regard, this study highlights the right to mother-hood and aims to consider it in the context of the legal possibilities of the mother of the child not to fulfill the obligations provided for by law by refusing them. The article examines the refusal procedure, identifies individual forms of refusal imple-mentation and their legal consequences. Based on the analysis of legislation and judicial practice, it is highlighted that in the course of law enforcement practice, situations are identified that are not covered by the existing norms. The analyzed norms testify to the inappropriate use of the term “abandonment of motherhood”. Refusal to exercise the powers of motherhood, fulfillment of duties, as well as granting consent to adoption are not a manifestation of the right to dispose of parental rights, which are inherently inseparable from the person. The author has established that the actual mechanism of this procedure is expressed in two possible forms: 1) the absence of the fact of the emergence of a legal connection between the mother and the child; 2) deprivation of parental rights in the manner prescribed by law. Based on the analysis of the materials of judicial practice, certain problems of the procedure for abandoning the child by the mother, as well as the consequences of the placement of children, depending on the form of refusal, were identified. It is established that on the one hand, if the mother of the child leaves the child without expressing the intention of further placement, the law establishes the basis for the deprivation of her parental rights after six months. On the other hand, if consent to the adoption is given with the indication of potential adoptive parents, the time period during which such adoption should be implemented and how the legal connection between the mother and the child will be severed is not established procedurally. The author identifies a number of typical problems associated with the refusal of the mother to take the child and exercise parental rights, and therefore offers recommendations aimed at improving the legislation, taking into account the needs of the current law enforce-ment practice.

scholarly journals The Human Element in the Judicial Process

1969 ◽  
pp. 301 ◽  
Author(s):  
Honourable Mr. Justice Louis-Philippe Pigeon
Keyword(s):  
Decision Making Process ◽  
Judicial Discretion ◽  
Personal Factors ◽  
Judicial Decision ◽  
Judicial Process ◽  
Judicial Decision Making ◽  
Human Element ◽  
The Subject ◽  
Social Importance ◽  
Selection Of

The imprecision in ascertaining facts and the uncertainty in laws is the subject of this article. The author discusses this in the framework of judicial discretion by examining the strengths and weaknesses of the exercise in discretion. He recognizes that judges do not blindly apply fixed laws by emphasizing the unavoidable imprecision in the law and the exercise of judicial discretion in making law. The author concludes by pointing out the existence of personal factors which enter into the judicial decision-making process and the tremendous social importance of the selection of members of judiciary.

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