scholarly journals REVISITING THE CONCEPT OF “COMPARATIVE LAW”

2017 ◽  
pp. 12-16
Author(s):  
Алексей Егоров ◽  
Aleksey Egorov
Keyword(s):  
Comparative Law ◽  
Universal Theory ◽  
Legal Science ◽  
Legal Nature ◽  
Science Approach ◽  
Theory Of Law ◽  
Definition Of ◽  
Legal Methodology ◽  
Theoretical Science ◽  
Normative Content

The article analyzes one of the main categories of comparative jurisprudence — “comparative law”. The alternative to the general legal theoretical science approach to consider comparative law as the doctrinal part of comparative law has been offered. The article analyzes Western and Russian approaches to the definition of the terms “comparative law” and “comparative jurisprudence”. The term “comparative law” is analyzed from the point of general legal methodology. The concept “comparative jurisprudence” has a broader content and together with methodological part of comparative legal science includes the components of both scientific and educational character. The author pays attention to the absence of normative content in the understanding of the term “comparative law” indicating exceptionally doctrinal legal nature of this phenomenon. The inner structure of comparative law depends on the system of formation and interaction of the objects of comparative jurisprudence. It is mentioned that this approach does not contradict in principle to the true opinion concerning the division of the whole comparative jurisprudence into general and special parts. The author emphasizes the necessity of the complex use of the terms “comparative law” and “comparative jurisprudence”. The necessity of formation of new category of comparative legal science – the “universal theory of law”, which has a supranational character has been proved. The scientific and educational approaches for distinguishing the concepts “comparative law” and “comparative jurisprudence” have been analyzed.

scholarly journals Formation of the legal system theory in Legal science (Part 2)

2020 ◽  
pp. 26-33
Author(s):  
Larysa Udovyka
Keyword(s):  
General Theory ◽  
International Law ◽  
Legal System ◽  
Comparative Law ◽  
Universal Theory ◽  
Legal Systems ◽  
Philosophy Of Law ◽  
Territorial Integrity ◽  
Legal Science ◽  
Theory Of Law

The article is devoted to the study of the formation of the theory of the legal system in legal science. The third stage in the development of the theory of law is characterized system, which begins at the beginning of the second decade of the XXI century. and continues to this day. t this stage, the interpenetration of ideas, provisions, conclusions about the development of the legal system within the legal sciences and areas that study the legal systems: the theory of state and law, comparative law, international law, philosophy of law is increasingly being traced. This stage is characterized by the search for answers to the question of approximation of the domestic legal system to European law; the mechanism of interaction between the national legal system and the EU legal system; features of systematization and unification of legislation at the stage of legal integration; directions of transformation and modernization of the legal system of Ukraine in the context of European integration and globalization, etc. The interpenetration of ideas and provisions largely reflects the objective process of strengthening and deepening the interaction of national and international legal systems, the inability to answer the vast majority of questions that arise in this regard, limited only to national or international law In recent years, the legal system of Ukraine, along with the traditional ones, has faced fundamentally new problems caused by external factors, including such as the establishment and consolidation of European foreign policy priorities, the search for effective legal means to counter threats to independence, national sovereignty, territorial integrity, territorial integrity, territorial integrity, energy threats, protection of citizens' rights violated as a result of annexation of Crimea, occupation in eastern Ukraine. Solving these and other problems is possible only through a comprehensive, systematic understanding, based on the achievements of the general theory of law, comparative law, international law, philosophy of law with the use of new approaches and methods, that is, within the framework of the general (universal) theory of law. The peculiarities of the development of legal science at this stage at the present day raise the question of the need to form a universal (general) theory of law as a conceptual basis of the theories of national and international law.

scholarly journals PUBLIC INTERESTS AND LEDAL CONSTRUCTIONS DERIVED FROM THEM

2018 ◽  
Vol 22 (4) ◽  
pp. 425-462
Author(s):  
Alexander B Zelentsov ◽  
Marina V Nemytina
Keyword(s):  
Law Enforcement ◽  
Legal Regulation ◽  
General Interest ◽  
Constitutional Court ◽  
Russian Society ◽  
Legal Doctrine ◽  
Public Interests ◽  
Legal Science ◽  
Theory Of Law ◽  
Definition Of

The article observes public interests, firstly, as a social regulative system in the Russian law, and secondly, as a scientific conception of law in legal science. It also researches possibilities of building legal constructions based on public interests with an aim to improve the legal regulation. Basing on the general theory of law and administrative law, the authors analyze: 1) the essence and grounds of public interests; 2) transformation of the Russian historical-theoretical conceptions of public interests; 3) modern interpretations of the phenomenon of public interests in the Russian legal doctrine, legislation and judicial practice; 4) some differences in the Western and Russian conceptions of public interests; 5) separate legal mechanics based on public interests. I.e. the authors talk about objectivating public interests, defining its forms of appearance and possibilities of implementation in the Russian society, law and state. Nowadays categories «public interest», «state interest», «social interest», «general public interests» as well as similar ones are widely used in the Russian legal science, law-making and law enforcement. The problem of its defining as well as identifying public and state interests is still not solved. The article emphasizes the absence of legal definition of public interests in the Russian legislation what causes its use as an evaluation category in the law enforcement practice. This follows by uncertainty in the legal regulation. From other side the term remains flexible and movable, helps coordinate moral and legal content, allows take into account specificity of public interests in each and every case. The article observes position of the Constitutional Court of Russia which defines correlation between public interests and similar categories, e.g. general interest. According to the authors’ opinion, public interests form legal mechanics uniting legal principles, institutes and rules. Examples of such mechanics are corporate-public regulation and public-private partnership.

scholarly journals Promising developments of domestic legal science on legal awareness

2020 ◽  
Vol 11 (11) ◽  
pp. 111-117
Author(s):  
Kovalchuk О. M.
Keyword(s):  
Modern Science ◽  
Legal Consciousness ◽  
Integrative Approach ◽  
Consciousness Development ◽  
Stage Of Development ◽  
Legal Science ◽  
Universal Values ◽  
Theory Of Law ◽  
Definition Of ◽  
The Right

This article focuses on the problem of legal consciousness, which is one of the most difficult in the theory of law and whose origins come from antiquity. Based on historical, economic, political, cultural and religious factors, at each stage of development, thinkers tried to give their understanding and definition of law. Each of the concepts and theories had certain positive aspects and disadvantage, revealing one or another side of such a multifaceted phenomenon as law. Modern scientists, applying new methodological techniques and the latest achievements of the humanities and natural sciences, the needs of society, continue to identify new aspects of law in order to better understand it and effectively regulate relations between people. The urgency of the outlined issue is enhanced by the active reforms in Ukraine, which requires the research of future trends in legal consciousness. Analysis of modern scientific trends in the legal consciousness indicates a gradual departure from the positivist types of legal consciousness and orientation to human as the highest social value. Ukrainian researchers pay attention to the continuity of the right to life, with the objective needs of people and their harmonious development. Therefore, modern legal consciousness presupposes compliance of legally established normative legal acts with natural law. Pluralism of scientific theories of legal consciousness makes possible to explore the essential features of law that are necessary for the establishment of universal values, to raise to a qualitatively new level the legal content of human rights and freedoms, to develop and implement a real mechanism for their protection. Modern science of law has to provide a gradual combination of positive features of all theories of legal consciousness, which will include the consideration of law as an integral, but multifaceted social phenomenon. It is pointed out that the integrative approach is not final in solving the problem of legal consciousness. Trends and prospects of modern jurisprudence in the field of legal consciousness are to identify the most rational and logical theories to determine the essence of law, which will contribute to a more complete and comprehensive research of such a multifaceted and complex phenomenon as law, which will constantly require rethinking. Keywords: legal consciousness, interpretation of legal consciousness, development of national legal science, positivist approach to legal consciousness, integrative approach to legal consciousness.

scholarly journals ON THE ESSENCE AND LEGAL NATURE OF THE FORENSIC EXAMINATION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 5-16
Author(s):  
V. Tishchenko ◽  
L. Belik ◽  
O. Samoilenko ◽  
Yu. Tishchenko
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Science ◽  
Forensic Examination ◽  
Legal Nature ◽  
Forensic Expert ◽  
The Law ◽  
Definition Of

The article is devoted to the study of aspects of the essence and legal nature of forensic examination in criminal proceedings. It is analyzed the provisions of the Law of Ukraine “On Forensic Examination”. The norms of the Criminal Procedure Code concerning the grounds for the appointment and conduct of forensic examination have been investigated. It has been established that many scientists in the field of civil procedural law, criminal procedural law, criminology and forensic examination paid attention to the legal content of the forensic examination. The nature of occurrence of forensic examination has been investigated. It has been established that at the legislative level, the term “forensic expert activity” is used only in the Law of Ukraine “On Forensic Examination”. In the specified normative legal act there is no clear definition of this concept, scientists through the analysis of some norms of law reveal its content. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. Regarding the definition of the concept of forensic examination, it has been established that there is no consensus in legal science. The article analyzes the criminal procedure form of appointing a forensic examination. Key words: forensic examination, criminal proceedings, forensic expert activity, forensic expertology, criminal procedural form.

scholarly journals Acts Incompatible with the Offi ce as the Ground for Constitutional and Legal Responsibility

2021 ◽  
Vol 16 (1) ◽  
pp. 41-55
Author(s):  
G. A. Trofimova
Keyword(s):  
Early Termination ◽  
Legal Responsibility ◽  
Legal Science ◽  
Legal Obligations ◽  
Legal Nature ◽  
Legal Duty ◽  
Definition Of ◽  
The Right ◽  
Target Activity ◽  
Science Part

The lawmaker has introduced numerous grounds for depriving a person of the right to hold a public or municipal office. Most of them include person’s guilty acts (omissions to act) the legal nature of which has not been defined yet. This constitutes an unconditional gap in the theory of legal science. Part of the grounds based on fault form constitutional offenses. It was appropriate to consider them in the context of general problems arising in establishing the grounds for the early termination of the authority of the official. As a result, the author in the paper highlights what types of duties of an official exist; why duties not related to the person’s target activity act as grounds for the termination of official powers (as well as the application of other possible sanctions); which acts incompatible with the office can be considered an offense, and how to single out constitutional offenses from them; what typesтof acts incompatible with the office exist according to the criterion of legal duty and the criterion of the degree of asociality. In addition, the author has determined the features and has categorized the legal obligations the violation of which represents the basis for imposing liability. The author has determined the defects in the normative definition of acts incompatible with the office, as well as the conditions for their application as a basis for imposing liability.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

Compensation for Infringement of Copyright and Related Rights: Essence and Primary Functions

2020 ◽  
Vol 5 ◽  
pp. 34-40
Author(s):  
N. V. Buzova ◽  
◽  
R. L. Lukyanov ◽  
Keyword(s):  
Russian Federation ◽  
Research Method ◽  
Comparative Law ◽  
Civil Code ◽  
Judicial Practice ◽  
Legal Remedy ◽  
Legal Nature ◽  
The Russian Federation ◽  
Judicial Protection ◽  
Exclusive Right

The Civil Code of the Russian Federation provides an opportunity to the rightholder in case of infringement of his exclusive copyright and related rights to demand in court instead of compensation for damages incurred by him to pay compensation. In most cases, when the rightholder applies for judicial protection of his violated rights, he requires the recovery of compensation. This article discusses the legal nature of compensation as a legal remedy of an exclusive right and its primary functions. When writing an article, a comparative law research method is used. As a result of the analysis of russian and foreign legislation, as well as judicial practice, it was found that compensation, in addition to restorative, also has a preventive function and can be considered an analogue of statutory damages.

IMPROVEMENT OF MECHANISMS OF PUBLIC POLICY IMPLEMENTATION IN THE SOCIO-HUMANITARIAN SPHERE

2018 ◽  
Author(s):  
Andrii Moisiiakha ◽  
Keyword(s):  
Public Policy ◽  
Policy Implementation ◽  
Public Administration ◽  
State Policy ◽  
The State ◽  
Practical Implementation ◽  
Humanitarian Mission ◽  
Legal Nature ◽  
Public Policy Implementation ◽  
Definition Of

The article is devoted to the problems of finding ways to improve the mechanisms of implementation of state policy in the socio-humanitarian sphere. The purpose of this article is to identify areas for improvement of mechanisms for implementing public policy in the socio-humanitarian sphere, taking into account the needs of their unification within a single approach to the organization of social processes in the analyzed area. Achieving this goal has provided solutions to more practical problems: the development of goals, objectives, areas of state policy in the socio-humanitarian sphere, as well as organizational and legal support for its implementation. All this together will allow to introduce quite detailed algorithms and tools for managing the socio-humanitarian development of Ukraine and to quickly and effectively overcome the negative risks that arise in it. The content, essence and state-legal nature of mechanisms of public administration, as a set of ways and tools of practical realization of state policy are revealed. The analysis of modern approaches to understanding the essence of mechanisms of public administration is carried out. The author's definition of the mechanism of public administration in the socio-humanitarian sphere is offered. The content and essence of state policy in the socio-humanitarian sphere are revealed. The conclusion concerning the basic determinants and features of its development is made. Approaches to the formation of mechanisms for the implementation of state policy in the socio-humanitarian sphere are generalized. The need to further unify approaches to the implementation of such public policy in different sectors of the socio-humanitarian sphere has been proved. The main directions of improvement of mechanisms of its realization are allocated. The mechanism of state policy implementation in the socio-humanitarian sphere is defined as a set of nonlinear sets of tools and methods of state influence, which is implemented through appropriate management decisions (a set of measures as components of state policy) to develop the rights and interests of citizens and practical implementation. guarantees of the state in the fields of education, health care, social security, as well as others covered by the humanitarian mission of the state and able to influence the formation of productive forces, human, intellectual and social capital in society.

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