scholarly journals MORALITY AS A PRIMARY REGULATOR OF CONTRACTUAL RELATIONS IN THE FRAMEWORK OF A NORMATIVE THEORY OF PROMISES IN A LEGAL DISCOURSE OF THE COMMON LAW COUNTRIES

2017 ◽  
Vol 3 (4) ◽  
pp. 114-119
Author(s):  
Радмила Макарова ◽  
Radmila Makarova
Keyword(s):  
Law Enforcement ◽  
Critical Evaluation ◽  
Legal Discourse ◽  
Legal Regulation ◽  
Normative Theory ◽  
Good Faith ◽  
Roman Law ◽  
Anglo American ◽  
The Individual ◽  
Moral Attitudes

This article describes the main provisions of the normative theory of promises in the Anglo-American legal discourse. Under this theory, which going back to the origins of natural law concepts, the nature of a civil contract expresses in the volitional act, and the reasons of the obligation of promises are the principles of morality. The author has made a critical evaluation of the position of the normative theory of promises which puts the morality as the primary regulator of the Institute of the contract. As a result the author shows that only morality in a legal dimension, namely the dimension of justice, may act as regulators of the private law. The concept of justice evolves, and today in a civilized society is expressed in two maxima: equality and freedom. And if the first dimension is known back to Roman law and its details was developed by Aristotle, but the humanity has realized the individual freedom as the manifestation of justice not so long ago. The question on relationship of morality and law is as relevant as ever for Russian legal reality, which has been subject of expansion of the good faith principle. Violation of the good faith principle in law enforcement often means the moral condemnation of the behavior of the civil turnover participant. Thus, the morality often goes beyond the justice, and, therefore, outside the scope of legal regulation. In present article the author proves the inadmissibility of such approach. The assumption of morality in the regulation of private legal relations enhances the feeling of legal uncertainty, and becomes a reason of a number of practical problems, in particular, the problem of the source of attitudes, which were conventionally recognized as a moral attitudes, and the problem of the court decision in case of presence of antagonistic moral attitudes, which are equally recognized by the law enforcement authority.

scholarly journals APPLICATION BY THE PROSECUTOR OF TEMPORARY ACCESS TO THINGS AND DOCUMENTS IN THE IMPLEMENTATION OF THE CHARGE FUNCTION

2021 ◽  
Vol 74 (1) ◽  
pp. 133-142
Author(s):  
Iryna Sukhachova ◽  
Keyword(s):  
Law Enforcement ◽  
Scientific Literature ◽  
Effective Means ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Individual Treatment ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Individual ◽  
The Right

The article is devoted to one of the effective means of obtaining evidence in criminal proceedings – temporary access to things and documents, the legal regulation of which is defined in Chapter 15 of the Criminal Procedure Code of Ukraine. Attention is drawn to a number of problematic issues related to the prosecutor's use of temporary access to things and documents in the exercise of the function of prosecution, the presence of which does not ensure the effectiveness of criminal procedural evidence and the effectiveness of this institution in criminal proceedings. According to the results of the study, the author concludes that the use of temporary units to temporarily access things and documents on the basis of a prosecutor's order makes it impossible to recognize the results of such action as evidence in criminal proceedings, as they do not meet the admissibility requirement. Prosecutorial oversight in criminal proceedings should not only ensure the inevitability of criminal punishment, but also ensure proper respect for human rights in criminal proceedings, respect for the individual, treatment as a person whose guilt has not yet been proven, and ensure impartiality and objectivity of the pre-trial investigation. Based on the results of the analysis of the decisions made by the investigating judge based on the results of consideration of the petitions, the author identified the grounds for the prosecutor's refusal to satisfy these petitions by the investigating judges. It is proposed to expand the procedural powers of the prosecutor as a subject of criminal procedural evidence, giving him the right to instruct operational units to conduct not only investigative (investigative) and covert investigative (investigative) actions, but also other procedural actions. Thus, taking into account the results of the analysis of scientific literature and materials of law enforcement practice, we can conclude that it is necessary to expand the procedural powers of the prosecutor as a subject of criminal procedural evidence by stating paragraph 5 Рart 2 of Art. 36 of the Criminal Procedure Code of Ukraine in the following wording: «to instruct the investigative (search) actions and covert investigative (search) actions or other procedural actions to the relevant operational units», as well as the need to supplement Part 1 of Art. 41 of the Criminal Procedure Code of Ukraine by the authority of operational units to carry out other procedural actions on behalf of the prosecutor.

Application of the principle of good faith in proving cartel agreements аt tenders

2020 ◽  
pp. 26-31
Author(s):  
A. S. Tymoshenko
Keyword(s):  
Law Enforcement ◽  
Civil Law ◽  
Competition Law ◽  
Legal Regulation ◽  
Public Law ◽  
Good Faith ◽  
Public And Private ◽  
The Public ◽  
Antitrust Laws ◽  
Theoretical View

The article discusses the issues of interpretation and applicability in competition law and in antitrust law enforcement practice of the civil law principle of good faith. The theoretical view of the concept of good faith as incompatible with the nature of public law is criticized.The law enforcement practice in cases of violation of antitrust laws by participants of anticompetitive agreements was studied, which influenced the formation of key judicial positions related to assessing compliance with the principle of good faith by bidders. According to the results of the study, it was concluded that the civil law principle of good faith is at the same time a general principle of competition law as an integrated branch of law combining public and private principles of legal regulation.It is noted that the use of this principle for legal assessment of the actions of participants in cartel agreements at tenders is not only an important tool to counteract cartelization of state and municipal procurements, but also a means of creating a business ethics of entrepreneurial relations in the public interest.

scholarly journals Testimonial immunity as an element of the principle of protection of the rights and freedoms of man and citizen in criminal proceedings

2019 ◽  
pp. 239-248
Author(s):  
M. Kharitonova
Keyword(s):  
Law Enforcement ◽  
Legal Status ◽  
Legal Regulation ◽  
Theory And Practice ◽  
Judicial Reform ◽  
Criminal Proceedings ◽  
Protection Of Human Rights ◽  
Legitimate Interests ◽  
The Individual ◽  
State Defense

In the conditions of formation of the rule of law, one of the biggest manifestations of the democratization of law enforcement activity in Ukraine is the legislative protection of human rights, the creation of guarantees of the rights and legitimate interests of the individual. In this regard, the legal status of participants in criminal proceedings becomes especially important. In addition, the important task of criminal procedural science is to identify and eliminate gaps in the legal regulation of criminal procedural relations. In this regard, studies are currently being conducted to identify legal issues in the field of law and recommendations are being prepared on this basis. It is known that every participant of criminal justice has its own legal status, enshrined in the rules of the Criminal Procedure Code of Ukraine. The procedural status of the victim, suspect, accused legislator and procedural scientist are given much attention, including the issues of securing their rights and legitimate interests. The procedural status of a witness in criminal proceedings requires, in our opinion, additional investigation, including through the prism of securing the rights and legitimate interests of the person in conducting pre-trial investigation and judicial proceedings in criminal proceedings. Research into the problems of the theory and practice of witness immunity is relevant, as various aspects of witness immunity are controversial among both theorists and practitioners. Of course, it is, first and foremost, important for witnesses to have additional opportunities for state defense. The purpose of the article is to address topical issues arising from the reform of criminal procedural legislation, which has created some difficulties in law enforcement practice, including the implementation of the rules governing the institution of immunity of witnesses. In particular, this is explained by contradictory, sometimes unsuccessfully formulated provisions of the legislation itself, which are not always consistent with the implementation of the tasks of judicial reform. In addition, the article raises the problem of witness immunity classification. The authors' different perspectives on the concepts and components of witness immunity are examined. Discussion questions of the classification of the immunity of witnesses are revealed and its classification is divided into categories and categories of testimony provided by witnesses. The result of the study is to provide valid proposals for improving the legal regulation of the institute of immunity of witnesses in criminal proceedings. Witness immunity is a set of rules that exempt certain groups of witnesses from the obligation to testify in criminal proceedings, as well as exempt a witness from testifying against themselves. In this regard, the immunity of the witness is divided into two types of imperative (absolute, unconditional) and dispositive (relative, conditional).

scholarly journals Bioethics: from Enlightenment to return

2021 ◽  
Vol 1 (8) ◽  
pp. 53-61
Author(s):  
A. V. Pekshev
Keyword(s):  
Law Enforcement ◽  
Professional Ethics ◽  
Historical Review ◽  
Legal Regulation ◽  
National Council ◽  
The Russian Federation ◽  
Ethical Institutions ◽  
Ethical Norms ◽  
The Individual ◽  
Historical Periods

Based on the concept adopted by the Russian legislator in the field of bioethics, the articleanalyzes aspects of the formation of moral and ethical regulations as a subject of legal regulation, a historical review of the features of the perception by the individual and society of ethical norms as criteria for self-restraint of the possibility of choosing options for lawful or unlawful behavioris given. The transformation of law from the age of enlightenment to the era of return to ethical institutions is shown both in the historical periods of the outgoing era and in the examples of negative law-making of contemporaries, in order to leave the norms of ethics outside the national order.The traditional explanation of the dominance of such an approach to the legal regulation of ethical institutions is reduced to the absence of objects of legal support due to the fact that ethics is not a legal, but a moral one. De facto ethical norms are introduced into the modern legal order of the Russian Federation at the level of law enforcement activities, for example, through the adoption of Codes of Professional Ethics. The expediency of formation in Russia of the National Council on Bioethics and Biosafety is substantiated.

Institute of incapacity in contemporary Russian law

2019 ◽  
pp. 145-158
Author(s):  
Olga Viktorovna Belyanskaya
Keyword(s):  
Medical Knowledge ◽  
Legal Regulation ◽  
Roman Law ◽  
Ancient Rome ◽  
Judicial Practice ◽  
Diminished Capacity ◽  
The Social ◽  
Russian Law ◽  
Individual Capacity ◽  
The Individual

We analyze one of the most important legal properties of the individual - capacity, as well as conditions of recognition person as incapable. Institute of incapacity norms were formed in Roman law, and in contemporary legal systems they are an indicator of tolerance level towards various deviations in the social behavior of an individual. We give a brief analysis of the Roman law provisions on the factors and conditions for the capacity diminishment and the recognition of a person as incapable. In Ancient Rome, only free-born man had legal capacity and personal capacity, and the reason for capacity diminishment could be the state of health, disgrace, wastefulness. The basis of institute of incapacity legal regulation in Russian civil and criminal law is the basic provisions of Roman law, which have been transformed and reflect contemporary medical knowledge and ideas about the social status of citizens. Citizens with diminish capacity may be recognized on the basis of various circumstances; accordingly, there are different types of restrictions in the implementation of their rights. This is the basis for dividing the diminished capacity of a person into two types - full and partial. We analyze the conditions for partial diminish of capacity. We provide judgments of scientists on the need to introduce such grounds as video games addiction, gambling, and wastefulness. We assume that these circumstances should be taken into account upon making decisions on the capacity diminishment and develop the relevant judicial practice. We propose a new wording of paragraph 1 of part 1 of article 30 of the Civil Code of the Russian Federation.

scholarly journals THE LEGAL PROBLEMS OF ESTABLISHING THE ADDITIONAL GUARANTEES OF REALIZATION OF CONSTITUTIONAL HUMAN AND CIVIL RIGHTS AND FREEDOMS BY THE CONSTITUENT ENTITIES OF THE RUSSIAN FEDERATION

2018 ◽  
Vol 1 (4) ◽  
pp. 87-95
Author(s):  
Alexander Chuklin
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Theoretical Analysis ◽  
Russian Federation ◽  
Legal Status ◽  
Legal Regulation ◽  
Practical Significance ◽  
Federal Law ◽  
The Russian Federation ◽  
The Individual

The subject. The article focuses on the need to improve legislative and law enforcement activities related to the consolidation of constituent entities of the Russian Federation additional guarantees of realization of constitutional human and civil rights and freedoms.The purpose of the article is to identify main ways of improvement the legal regulation additional guarantees of realization of constitutional human and civil rights and freedoms by the constituent entities of the Russian Federation.The methodology. The author uses a dialectical method, a method of analysis and synthesis, a formal legal method.The results and scope of application. The lack of unity in understanding the essence of additional guarantees of realization of rights and freedoms requires not only theoretical analysis of this legal category, but a consistent system of the legislation, and corresponding to the system of law enforcement practice. The legal establishment of the additional guarantees of realization of constitutional human and civil rights and freedoms, due solely to the will of the legislator of a constituent entitiy of the Russian Federation aimed at the concretization of constitutional rights and freedoms as well as of the security mechanisms (legal conditions, means) of the implementation of these rights. Features of development of the corresponding constituent entitiy of the Russian Federation should be taken into account.One of the main directions of improvement of legal regulation in this field is legislative recognition of additional guarantees of realization of constitutional human and civil rights and freedoms established by the constituent entities of the Russian Federation. This concept should be reflected in the Federal law of October 6, 1999 No. 184-FZ "On General principles of organization of legislative (representative) and executive bodies of state power of constituent entities of the Russian Federation", as well as in the constitutions (charters) of constituent entities of the Russian Federation. The consolidation of this concept in the legislation will be the impetus to the theoretical analysis of this legal category, and will ultimately contribute to the improvement of the legal status of the individual.Conclusions. Improvement of regional legal policy in the sphere of establishment additional guarantees of realization of constitutional human and civil rights and freedoms by subjects of the Russian Federation has great practical significance and contributes to the theoretical knowledge of the specified legal category.

scholarly journals Inadmissible appeals of citizens: problems of qualification and law enforcement practice

2019 ◽  
pp. 68-74
Author(s):  
D. E. Zaykov
Keyword(s):  
Law Enforcement ◽  
Freedom Of Speech ◽  
Legal Regulation ◽  
Assessment Criteria ◽  
Good Reputation ◽  
The Individual ◽  
The Right

The right of citizens to appeal to State bodies (local self-government bodies) and freedom of speech are important constitutional institutions. However, their unscrupulous implementation may violate other constitutional values, such as the dignity, honour and good reputation of the individual.The conflict under consideration manifests itself when inadmissible appeals of citizens are submitted, namely, appeals containing unacceptable expressions or threats. At the same time, the current legal regulation of such situations is unsettled and contains in its basis assessment criteria, which leads to ambiguous practice of its application based on discretionary approach.The article reveals the problems of legal regulation of qualification of inadmissible appeals of citizens and suggests ways of their solution. 

scholarly journals PRAWO RZYMSKIE A EUROPEJSKA TRADYCJA PRAWNA

2016 ◽  
Vol 11 (4) ◽  
pp. 191
Author(s):  
Danuta Kabat-Rudnicka
Keyword(s):  
Regional Scale ◽  
General Rule ◽  
Roman Law ◽  
Western World ◽  
Political Values ◽  
Ius Commune ◽  
The Law ◽  
Anglo American ◽  
The Individual ◽  
Point Of Reference

ROMAN LAW AND EUROPEAN LEGAL CULTURESummary The Roman law and the later neo-Roman law (ius commune), underlies the legal systems of the Western world, i.e. the continental system (civil law) and the Anglo-American system (common law). The essential constants of European legal culture, formed also by the Roman law are: personalism, referring to the individual as subject, end and an intellectual point of reference in the law; legalism, meaning not merely the monopoly of the modern legislator to create and change the law, but the need to base decisions about social relationships and conflicts on a general rule of law, whose validity and acceptance does not depend on moral, social and political values or purposes; intellectualism that relates to the particular way in which the phenomenon of law is understood. And even today, when we observe a trend towards the unification of law, whether on global or only a regional scale, the Roman law can still serve as a point of reference.

SOME CHARACTERISTICS OF CONTEMPORARY POLITICAL AND LEGAL DISCOURSE OF ETHNIC AND NATIONAL CONFLICTS IN RUSSIA

2020 ◽  
Vol 10 (4) ◽  
pp. 53-64
Author(s):  
ANDREY KURIUKIN ◽  
Keyword(s):  
Modern Science ◽  
Legal Discourse ◽  
Legal Regulation ◽  
Ethnic Relations ◽  
Soviet Society ◽  
The Russian Federation ◽  
The Russian Empire ◽  
New Research ◽  
The 19Th Century ◽  
Developing System

The issue of ethnic relations and the conflicts generated by them is acutely relevant. Many branches and directions of modern science study it. Political science and jurisprudence are in the foreground of the modern study of ethno-national conflictology. Over a long period of research, they have developed several influential approaches that have become widespread. The growing complexity of the surrounding political and legal reality, the escalation of conflict in society, including ethno-national, require the search and application of new research paradigms. One of these is the analysis of political and legal discourse, which consists in studying the ways of how legal meanings, ideas, opinions and preferences, which are carried by legislators, are technically and meaningfully embodied in the texts of normative acts, subsequently forming a specific political and legal reality. Analyzing the domestic ethno-conflictological political and legal discourse, the author concludes that in the era of the Russian Empire, the legalization of ethno-national relations had little attention from legislators, the documents adopted in the 19th century carried widespread ideas of the legislative theory and existed unchanged until 1917. The basic paradigm of the Soviet political and legal regulation of ethno-national relations was the ideological dogmas of the theorists of Marxism-Leninism, within which, in Soviet society, such a phenomenon as an ethno-national conflict was denied, but, in fact, existed. At the present stage, after the acute events of the second half of the 1980s - 1990s, a serious system of political and legal regulation of ethno-national relations was developed. It bore fruit. Today, the domestic political and legal regulation of ethno-national relations has the character of a developing system designed to adequately respond to changes. The article can be used to improve the state social and legal policy of the Russian Federation. Also, the materials presented can provide the interest of students, graduate students, teachers, researchers and other people who are interested in the current social, political and legal development of Russia.

ELECTRONIC EVIDENCE IN CIVIL PROCEEDINGS IN INDIA

2020 ◽  
Author(s):  
Anton Koshelev ◽  
Ekaterina Rusakova
Keyword(s):  
Law Enforcement ◽  
Information Technologies ◽  
Sequential Analysis ◽  
Legal Regulation ◽  
Civil Litigation ◽  
Private International Law ◽  
Electronic Evidence ◽  
Advantages And Disadvantages ◽  
Research Activities ◽  
Civil Proceedings

A significant leap in the development of information technology over the past twenty years has made the global legal community respond to new challenges that have come along with the progress in the digital environment. Together with the convenience of using electronic resources, society has developed a need for a simple and understandable legislative regulation of legal relations arising from the use of computer information technologies and various products of electronic digital activity in order to protect their interests potentially. The concept and types of electronic evidence in civil proceedings in different countries have different meanings. Meanwhile, the regulations of their procedural admissibility and applicability differ. The common thing is the tendency towards an increase in the use of electronic information carriers in court proceedings, increasing importance for establishing specific facts, and the decisive evidentiary role in making decisions by the court. India became one of the first countries to realize the growing level of implementation of Internet technologies, electronic digital storage media, and computer dominance in society and the state's daily life [1] (Artemyeva, Y.A. et al.). The consequence of this understanding was the timely development and implementation of the substantive and procedural bases in evidence law for practical, understandable, and convenient use of electronic evidence in civil proceedings. The article examines the types and procedural status of electronic evidence and analyzes the current legislation and law enforcement practice in the admissibility and application of electronic evidence in civil proceedings in India. The study identifies the existing system of electronic evidence in the legal field of India, the determination of the advantages and disadvantages in the gathering, presentation, research, and evaluation of electronic evidence by the court in civil proceedings, as well as the identification of the procedural order for their provision. The researchers have identified the following tasks to achieve the goals: • to define and research the legislation of India governing the concept, types and procedural order of applicability and admissibility of electronic evidence in civil proceedings in India; • to develop a particular procedural order for the effective use of the institution of electronic evidence in civil litigation in India; • to identify the current trends in the gathering, presentation, research, and evaluation of electronic evidence in India's courts, based on the established judicial practice study. The research methodology is based on general theoretical and scientific methods of cognition, including abstraction and specification, analysis and synthesis, modeling and comparison, and systemic, logical, and functional analyzes. The scientific novelty of the research consists of a comprehensive study of the instruments of legal regulation of the institution of electronic evidence in India's legal field, including regulatory legal acts and judicial precedents, and a consideration of the possibility of applying Indian approaches in the jurisdictions of other countries. The analysis of legislation and jurisprudence regarding electronic evidence in India's civil proceedings was carried out using the synergistic principle of object study, statistical-sequential analysis, and empirical research method. This study's results can be used in lawmaking to develop and improve regulations regarding the procedural status and use of electronic evidence in civil litigation in any country. The reference, citation, and use of this article's conclusions and materials are permissible when conducting lectures and seminars on civil procedure and private international law, research activities, law enforcement practice, and teaching.

Sign in / Sign up

Export Citation Format

Share Document