Problems of Application of Civil-Law Institute of Confiscation of Property As Means of Fighting Corruption

2018 ◽  
Vol 7 (3) ◽  
pp. 17-20
Author(s):  
А. Арямов ◽  
A. Aryamov ◽  
Е. Руева ◽  
E. Rueva
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Social Conditions ◽  
Legal Institution ◽  
Legal Norms ◽  
Methods Of Analysis ◽  
Property Confiscation ◽  
The Moment ◽  
Legal Meaning

The article considers the most effective mechanisms for realizing the confiscation of property as a means of counteracting corruption. The confiscation institute is investigated in its civil, not criminal-legal meaning. The authors of the article paid special attention to the analysis of international legal regulation of various issues of confiscation in rem and the problems of implementing this institution in the domestic legal field. An analysis of domestic anti-corruption legislation showed that, for all its similarity with the institution, confiscation in rem, the domestic civil-legal institution of confiscation is not such. In the process of its definition, vices are laid, which nullify the effectiveness of the implementation of this institution. When investigating the civil-law institute of property confiscation, the authors used methods of analysis, synthesis, systemic and functional approaches, formal legal and comparative legal methods. On the basis of these methods, the authors come to the conclusion that Russian legislation ensuring the implementation of Art. 235 GCRF, at the moment does not contain effective tools to combat corruption. The author draws attention to the problem of corruption-relatedness of the anti-corruption legislation. In his opinion, the solution of this problem will require a serious analysis of all normative material, a detailed forecast of the application of legal norms in real social conditions.

scholarly journals Features of the Commission of Fraud, Coupled with the Failure to Comply with the Provisions of a Civil Contract

2019 ◽  
Vol 12 (3) ◽  
pp. 69
Author(s):  
Togaibayeva S. S. ◽  
Yelyubayev M. S. ◽  
Aikumbeckov N. ◽  
Togaibayev A. I. ◽  
Khanov T. A.
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Legal Norms ◽  
The Republic ◽  
Fraudulent Activity ◽  
Contractual Obligations ◽  
The Moment ◽  
Objective Side ◽  
Civil Contract

The relevance of the study due to the need to consider the composition of a criminal offense in the form of fraud under the laws of the Republic of Kazakhstan. New market relations and insufficient legal regulation of certain aspects have expanded the offenders' ability to use the imperfections of legal norms for their own mercenary purposes. The difficulties arising in practical activities necessitate the clarification of controversial issues and the development of sound recommendations for the correct qualification and delimitation of fraud from other legal relations. Based on the study of practical examples of individual forms of fraud, the need for a differentiated approach to qualifications and the establishment of responsibility for fraud is indicated. The main content of the article is aimed at identifying and disclosing the basic concepts that determine the content of the considered offense and highlighting the main forms of deception that ensure the offender to achieve a criminal result. The objective and subjective characteristics of the composition of fraud are investigated, the features of establishing individual qualifying characteristics are considered. The main method of research used a comparative legal analysis of domestic legislation, used statistical data and the results of a survey of law enforcement officers. The article touches upon the problem of non-fulfillment of contractual obligations as a sign of fraud in the business sphere. Identified and investigated some signs of the objective side of fraudulent activity, in which as a cover for illegal actions, the use of civil law contracts that facilitate the commission of fraud is used. It justifies the conclusion that, taking into account the signs of the objective side, the moment of the end of fraud, coupled with non-fulfillment of contractual obligations, is different from the moment of the end of the usual fraud. Article materials may be valuable for practitioners of pre-trial investigations in terms of scientifically based proposals and recommendations on the qualification of typical fraudulent acts veiled under a civil law transaction.

scholarly journals SUBSIDIARY APPLICATION OF LEGAL NORMS: CIVIL STUDIES

2021 ◽  
pp. 44-52
Author(s):  
Надежда Николаевна Тарусина
Keyword(s):  
Conflict Resolution ◽  
Labor Relations ◽  
Civil Law ◽  
Labor Law ◽  
Legal Regulation ◽  
The Other ◽  
Legal Norms ◽  
Social Principle ◽  
Judicial Lawmaking ◽  
Systemic Nature

Субсидиарное применение правовых норм является одной из технологий усмотренческой деятельности суда и других компетентных субъектов - наряду с конкретизацией норм и правоотношений, аналогией права и закона, разрешением коллизии и судебным правотворчеством. В отличие от аналогии, необходимость в которой возникает в связи с пробелом в законодательстве, означенный вид деятельности обусловлен системным характером связей между отраслями права и целесообразностью экономии нормативно-правового материала. В пространстве цивилистики взаимодействие трех отраслей (гражданского, семейного и трудового права) по линии субсидиарности осуществляется в основном с акцентом на использование гражданско-правовых конструкций для двух других цивилистических блоков. Это обусловлено как характером «генетических» связей между указанными тремя отраслями законодательства, так и ключевыми позициями гражданского права в цивилистической семье в настоящее время. Однако субсидиарное воздействие последнего существенно ограничивается онтологическими характеристиками семейных и трудовых отношений и присутствием в методах их правового регулирования ярко выраженной публичной компоненты, социального начала. Приводятся наиболее яркие образцы взаимного обогащения нормативным материалом на основе технологии субсидиарности - при очевидном доминировании предложений со стороны гражданского законодательства Subsidiary application of legal norms is one of the technologies of the judgmental activity of the court and other competent subjects - along with the specification of norms and legal relations, the analogy of law and law, conflict resolution and judicial lawmaking. In contrast to the analogy, the need for which arises in connection with a gap in legislation, this type of activity is due to the systemic nature of the links between branches of law and the expediency of saving regulatory material. In contrast to the analogy, the need for which arises in connection with a gap in legislation, this type of activity is due to the systemic nature of the links between branches of law and the expediency of saving regulatory material. In the space of civil law, the interaction of three branches (civil, family and labor law) along the line of subsidiarity is carried out mainly with an emphasis on the use of civil law structures for the other two civil law blocks. This is due to both the nature of the «genetic» links between these three branches of legislation, and the key positions of civil law in the civil law family at the present time. However, the subsidiary impact of the latter is significantly limited by the ontological characteristics of family and labor relations and the presence in the methods of their legal regulation of a pronounced public component, social principle. The most striking examples of mutual enrichment with normative material based on the technology of subsidiarity are given - with the obvious dominance of proposals from civil legislation.

К ВОПРОСУ О РЕГУЛИРОВАНИИ ПОРЯДКА РАСТОРЖЕНИЯ БРАКА С ССЫЛЬНЫМИ В ДОРЕВОЛЮЦИОННОМ ПРАВЕ

2020 ◽  
Author(s):  
Olga Elchaninova
Keyword(s):  
Short Stories ◽  
Family Law ◽  
Legal Regulation ◽  
Criminal Prosecution ◽  
Legal Institution ◽  
Legal Norms ◽  
Dialectical Approach ◽  
The Subject ◽  
Family And Marriage ◽  
Domestic Law

Объектом исследования является наказание как государственно-правовой институт. Предметом исследования выступают правовые нормы, регламентирующие порядок расторжения брака с лицами, отбывающими наказание в виде ссылки в дореволюционной России. Методологическую основу исследования составили диалектический подход, метод историзма, методы формальной логики (анализ, синтез, индукция, дедукция). Формально-догматический подход позволил автору показать дореволюционное право как социокультурный феномен и оценить его как систему правовых установлений, методов правового регулирования сферы семейно-брачных отношений на рубеже XIX-XX вв. В работе показано, что в рассматриваемый период для лиц православного и иного вероисповедания были установлены следующие основания для расторжения брака: 1) при доказанности супружеской измены одной из сторон; 2) при неспособности одного из супругов к зачатию детей; 3) при безвестном отсутствии супруга; 4) при осуждении к уголовному наказанию. Автором отмечается, что выделение в качестве условия для расторжения брака привлечение одного из супругов к уголовной ответственности и его осуждение явилось важным нововведением в отечественном праве. Семейное право пополнилось новеллами, отражающими изменившийся подход законодателя относительно случаев, если фактически брак не существует, то и юридически он тоже должен быть прекращен.The object of research is punishment as a state legal institution. The subject of the study is the legal norms governing the procedure for divorce of persons serving sentences in the form of exile in pre-revolutionary Russia. The methodological basis of the study was the dialectical approach, the method of historicism, methods of formal logic (analysis, synthesis, induction, deduction). The formal-dogmatic approach allowed the author to show pre-revolutionary law as a sociocultural phenomenon and evaluate it as a system of legal institutions, methods of legal regulation of the sphere of family and marriage relations at the turn of the XIX-XX centuries. The work shows that during the period under review for persons of Orthodox and other faiths, the following grounds were established for divorce: 1) when proving adultery of one of the parties; 2) if one of the spouses is unable to conceive children; 3) in the absence of a spouse; 4) upon conviction of criminal punishment. The author notes that the selection as a condition for divorce of a criminal prosecution of one of the spouses and his conviction was an important innovation in domestic law. Family law was supplemented by short stories reflecting the changed approach of the legislator regarding cases where the actual marriage does not exist, then it must also be legally terminated.

ON THE QUESTION OF THE STRUCTURE OF INHERITANCE LAW

2021 ◽  
Vol 14 (2) ◽  
pp. 59-67
Author(s):  
EKATERINA KHODYREVA ◽  
Keyword(s):  
Legal System ◽  
Civil Law ◽  
Central Place ◽  
Legal Regulation ◽  
Inheritance Law ◽  
Law System ◽  
Legal Norms ◽  
The Subject ◽  
The Right ◽  
Civil Law System

In the present article, the author considers various doctrinal judgments on the question of what constitutes inheritance law and what place it occupies in the legal system. The purpose of the research is to determine the structural divisions of the sub-branch of inheritance law and substantiate the view on the recognition of inheritance law as a sub-branch of civil law with the designation of its inherent institutions and subinstitutions. Results. Based on the results of the study, the author came to the conclusion that inheritance law, taking into account the content of the legal norms forming it, can only be recognized as a sub-branch of civil law. There are no sufficient grounds to consider inheritance law as an institution of civil law or as an independent legal branch as a structural unit of the legal system. Due to the subject of legal regulation, inheritance law is separated from other sub-sectors in the civil law system. Taking into account the specifics of the subject and method of legal regulation, the sub-branch "inheritance law" is subject to further differentiation into its constituent institutions and sub-institutes. It is concluded that it is necessary to distinguish five main institutions within the studied sub-sector, the central place among which belongs to the institute of inheritance law. The legal norms of this institution are currently dispersed in separate chapters of section V of the Civil Code of the Russian Federation and cover the specifics of regulating both hereditary and some related legal relations. It is this diversity to be included in the Institute of law of inheritance relations allows to conclude on the need for it subinstitute three: hereditary sub instructions, sub succession and sub the exercise of the right of inheritance.

scholarly journals From the experience of legal regulation of police operations connected with the security of Emperors of the Russian Empire from attempts

2020 ◽  
Vol 2020 (4) ◽  
pp. 18-25
Author(s):  
Sergey Zharov
Keyword(s):  
Practical Experience ◽  
Legal Regulation ◽  
Russian Empire ◽  
Practical Training ◽  
Highly Qualified ◽  
Security Measures ◽  
Legal Norms ◽  
The Russian Empire ◽  
The Moment ◽  
Imperial Family

The article is devoted to the study of legal norms regulating the service of special units, which were entrusted with the protection of the emperors of the Russian Empire and members of the august family from assassination attempts in the period from 1881 to 1917, that is, from the moment of death of Alexander II at the hands of revolutionary terrorists until the moment of liquidation of the imperial power. These werethe Security agents and secret security units, acting behind the scenes. The operational-search techniques used by these units were developed by highly qualified specialists, heads of outdoor surveillance services, but it was for the first time when they were used for the purposes of personal protection and required practical training and gaining experience. It is also very important to compare the development of legal regulation of the protection of the sovereign in time; for this three documents of 1883, 1887 and 1913 were studied. The research is based on dialectical, formal-legal and comparative-legal methods, which made it possible to determine the recommended procedure for all participants in security measures, to identify the general and specific matters in the documents, to show the practical experience of protecting the highest persons. The result of the protection is the absence of attempted terrorist acts against the imperial family. This made it possible to draw a conclusion about the effectiveness of protection, that is, the adequacy of the measures taken. In spite of the repeated requests of researchers to this subject under examination, such analysis was not made by them, therefore this article is an attempt to close one of the gaps in our historical and legal science.

scholarly journals Development of legal institute of the auction within the competitive right

2019 ◽  
pp. 18-23
Author(s):  
A. V. Molchanov
Keyword(s):  
Public Interest ◽  
Civil Law ◽  
Competition Law ◽  
Legal Regulation ◽  
Legal Institution ◽  
Public Nature ◽  
Constitutional System

Regulation of relations connected with the organization and holding of tenders exclu- sively by the norms of civil law and civil legislation is impossible, since the issues of ensuring competition are of a public nature, aimed at ensuring public interest, which is the basis of the constitutional system of our state, and therefore require public legal regulation. Taking into account the importance of tenders for ensuring competition, it is more effective to develop both the legal institution of tenders in the sphere of complex branch of competition law and the legislation on tenders, as its external manifestation, in the sphere of antimonopoly legislation.

scholarly journals Mandate and representation

2020 ◽  
Vol 13 (2) ◽  
pp. 199-222
Author(s):  
Dana-Lucia Tulai
Keyword(s):  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Institutions ◽  
Legal Institution ◽  
First Time

The mandate contract, although it bears similarities to other types of conventions and legal institutions, is unequivocally different in its specific features. In our article, we shall try to distinguish the mandate from representation, a legal institution with which it shares similarities that have generated doctrinal discussions. We believe that the usefulness of this approach is justified all the more since representation has received its own legal regulation under the new Romanian Civil Code, for the first time in our civil law. The conclusion of our study is that representation is not the essence of the mandate, but only characterizes its nature, since there is mandate without representation, as well as representation without mandate.

scholarly journals Certain Issues of the Practice of Applying the Rules on Mortgages under the Contract

2021 ◽  
Vol 2 ◽  
pp. 42-47
Author(s):  
I.YU. Pavlova ◽  
◽  
U.S. Smirnova ◽  
Keyword(s):  
Real Estate ◽  
Civil Law ◽  
Federal Law ◽  
Judicial Practice ◽  
Intended Purpose ◽  
The Moment ◽  
Legal Meaning

Some aspects of the application of norms in the field of mortgages by virtue of the contract are considered: the interpretation of paragraph 1 of Article 78 of the Federal Law «On Mortgage (Pledge of Real Estate)», the problem of eviction of citizens living with the mortgagor, the legal meaning of the purpose of the loan during foreclosure on property. The article analyzes the possibility of securing the debtor’s non-property obligations with a mortgage, the risks of the mortgagee when issuing a loan (credit) amount. It has been established that regulation of both targeted and non-targeted loans secured by the pledge of housing owned by citizens is of great importance. Thanks to the analysis of the current judicial practice, it was noted that at the moment the courts do not make the decision on the foreclosure of property dependent on the intended purpose of the loan (loan); however, exactly the purpose of the loan is taken into account by the court when deciding on the eviction of the mortgagor and the persons living with him. It has been established that at this stage in the development of civil law relations, the issue of protecting the rights of citizens, including minors, who risk losing their only habitable living quarters, arises.

scholarly journals Liability for debtor’s insolvency (bankruptcy) in Russia from 18th to 21st centuries

2019 ◽  
pp. 34-40
Author(s):  
P. D. Kurkin
Keyword(s):  
Comparative Study ◽  
Civil Law ◽  
Legal Liability ◽  
Legal Regulation ◽  
Legal Norms ◽  
Historical Method

The article is devoted to the examination of legal liability in the sphere of insolvency (bankruptcy) in Russia during the period from 18th to 19th centuries. Within the framework of the study, the author has analyzed peculiarities of the design of the legal norms of Tsarist Russia regulating liability in the sphere of bankruptcy and considered the categories of debtors. The author examines the current legislation dividing debtor’s liability for insolvency (bankruptcy) into liability under criminal, administrative and civil law, highlights the correlation between the types of liability in question. In addition, the author has carried out a comparative study of legal liability in the sphere of bankruptcy with the help of historical method, identified causes and gaps of the legal regulation of liability issues for debtor’s insolvency (bankruptcy).

The institution of term in legal relations to ensure the execution of state (municipal) contract and guarantee obligations: issues of legal regulation practice

2021 ◽  
pp. 475-485
Author(s):  
Vadim V. Kramskoy
Keyword(s):  
Research Methodology ◽  
Legal Regulation ◽  
The State ◽  
Legal Institution ◽  
Contractual Obligation ◽  
Methods Of Analysis ◽  
Analysis And Synthesis ◽  
Security Relations ◽  
State Of Affairs ◽  
Interim Measures

We investigate the institution of term in security relations, used in the provisions of state (municipal) contracts concluded for the procurement of goods, works, services to meet state and municipal needs. The main goal is to analyze the provisions of the legislation on the contractual system in terms of comprehending the existing approach to securing in law the security obli-gations of counterparties of the state customer, the periods during which one or another method of securing the execution of the contract is valid, and the period during which it is provided by the supplier, contractor, executor secur-ing both the contractual obligation and the guarantee obligation following it. We pose the problem of inconsistency in the legal regulation of the named legal institution and legal uncertainty in the application of its individual as-pects, an explanation is given for this state of affairs, and we give examples of the possible formulation of conditions on the duration of security obliga-tions in a contract. In particular, it shows cases of a “legal vacuum” in a situation with the return of funds contributed as a security for the performance of a contract, a case of a gap in the law regarding a condition on the term of provision of a guarantee, etc. The work is practice-oriented and contains examples of the possible formulation of the terms of contracts in terms of the effect of interim measures. The research methodology is based on methods of analysis and synthesis, formal legal and comparative legal methods.

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