scholarly journals Consistency of Law Enforcement Practice in Matters of Deviation from the Principle of Equality of the Spouses’ Shares in Their Common Property

Legal Concept ◽  
2021 ◽  
pp. 116-124
Author(s):  
Natalia Ablyatipova ◽  
Keyword(s):  
Law Enforcement ◽  
Common Property ◽  
General Rule ◽  
Court Decisions ◽  
Judicial Practice ◽  
Marital Property ◽  
The Law ◽  
The Right ◽  
Joint Property

Introduction: the issues of the division of the jointly acquired property of spouses do not lose their relevance. As a general rule, in the absence of an agreement between the spouses, the division is carried out in court based on the legally established presumption of equality of shares, regardless of the method of participation in the formation of joint property. However, this principle is not absolute and the court has the right to deviate from the principle of equality by increasing the share of one of the spouses. Meanwhile, the possibility of increasing the share in the marital property is interpreted ambiguously in law enforcement, and the incorrect interpretation of the norm is revealed. In this regard, the author sets the goal: to summarize the approaches developed by the judicial practice on this issue, to identify and analyze the grounds for deviation from the principle of equality of shares in the division of property of spouses. Results: the reasons for the increase in the marital share are investigated, the problems of determining the criteria are identified, and the inconsistency of court decisions in similar cases when considering the categories “child’s interest” and “spouse’s interest” is established. Conclusions: based on the analysis of the legislation and materials of judicial practice, the problems of applying the grounds for derogating from the equality of the shares of spouses in the division of jointly acquired property and the ambiguity of the law enforcement are highlighted. Based on the results of the work, the author has developed some practical proposals and recommendations for improving the legislation.

Legal Means of Procuring the Unity Application of the Criminal Procedure Law

2020 ◽  
Vol 27 (2) ◽  
pp. 156-169
Author(s):  
Olha Shylo ◽  
Nataliia Hlynska
Keyword(s):  
Law Enforcement ◽  
Scientific Development ◽  
General Mechanism ◽  
Judicial Reform ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Subject ◽  
The Law

Ensuring the unity of judicial practice is the implementation of the legal certainty principle, which is considered as the part of the rule of law, ensures the predictability of court decisions. At the theoretical level, the issues of the unity of judicial practice are mostly the subject of research in the context of judicial reform and the judiciary, but comprehensive research on this issue in the field of modern criminal justice is almost absent. The purpose of the study is to establish a system of legal means to ensure the unity of judicial practice. The methodological basis of the study was based on general and special methods, namely: dialectical, systematic, formal-legal and logical methods. The authors provide a brief overview of the theoretical provisions that determine the socio-legal value of the unity of law enforcement practice. The concept of "unity of judicial practice" in the field of criminal proceedings is analyzed and it was emphasized the usage of the approach of understanding the unity of judicial practice as a synonym of equal (adjustment) application of procedural and material norms in homogeneous categories of court decisions, which are adopted in the course of criminal proceedings. It is established that the limit of permitted differences in the application of the law is quite flexible and informal. It is established that the quality of the law cannot be assessed in isolation from the practice of its application. The authors also emphasize the instrumental role of judicial practice in the general mechanism of ensuring uniformity of law enforcement. A position was expressed on the role of explanations of the Plenum of the Supreme Court in the general mechanism of ensuring the unity of judicial practice. It is established that the system of legal means to ensure the unity of application of the law in the field of criminal proceedings consists of a set of interrelated elements. The results of the study can be used in further scientific development of the problem of ensuring the unity of judicial practice, scientific substantiation of proposals aimed to improve the current legislation of Ukraine, which regulates the issues that have become the subject of this research

SIGNIFICANCE OF EAEU COURT DECISIONS IN FORMATION SUPRANATIONAL LEGISLATION

2021 ◽  
pp. 22-26
Author(s):  
Т.Ю. Изгагина
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
International Agreements ◽  
Court Decisions ◽  
Member States ◽  
National Legislation ◽  
The Supreme Court ◽  
The Law ◽  
The Right

Суд ЕАЭС является пoстoяннo действующим наднациональным судебным oрганoм и рассматривает спoры по вoпрoсам реализации Дoгoвoра об ЕАЭС, международных договоров в рамках Союза и (или) решений органов Союза. Анализ законодательств стран ЕАЭС показал, что на уровне национальных законодательств страны наделили правом на обращение в данный суд. Кроме того, правоприменительная практика таможенного законодательства в государствах-участницах ЕАЭС в связи с вынесением судом ЕАЭС разъяснений, решений складывается неединообразно. В настоящее время остро стоит вопрос о необходимости выработки механизмов исполнения решений суда ЕАЭС на территориях стран ЕАЭС. The court of the EEU is a supranational permanent judicial body and considers disputes arising on the implementation of the Agreement, international agreements within the Union and (or) decisions of the Union’s bodies. An analysis of the legislation of the EEU countries showed that at the level of national legislation, countries have given the right to appeal to the Supreme court. In addition, the law enforcement practice of customs legislation in the EEU member States in connection with the issuance of explanations and decisions by the EEU court is not uniform. Currently, there is an urgent question of the need to develop mechanisms for the enforcement of decisions of the EEU court on the territories of the EEU countries.

scholarly journals Features of the judicial practice influence on the sphere of law enforcement activity of internal affairs bodies

2019 ◽  
pp. 65-67
Author(s):  
Svetlana Sergeevna Nikolaeva ◽  
Lubov Konstantinovna Fortova
Keyword(s):  
Law Enforcement ◽  
Court Decisions ◽  
Judicial Practice ◽  
The Law ◽  
Internal Affairs ◽  
The Concept Of Law ◽  
Enforcement Activity ◽  
Concept Of Law

This article analyzes the concept of law enforcement activity of internal affairs bodies, as well as its interconnection with judicial practice. Concrete examples of judicial practice that are directly relevant for the law enforcement acivity of internal affairs bodies are examined and the significance of these court decisions is assessed.

Keadilan Distributif atas Pembagian Harta Bersama dalam Perkawinan bagi Keluarga Muslim di Indonesia

2018 ◽  
Vol 11 (1) ◽  
pp. 35-48
Author(s):  
Siah Khosyi’ah
Keyword(s):  
Common Property ◽  
Islamic Law ◽  
Married Couples ◽  
Dropping Out ◽  
Legal Cases ◽  
Islamic Jurisprudence ◽  
Marital Property ◽  
Joint Property ◽  
Husband And Wife ◽  
Muslim Scholars

The division of marital joint property after the breakup of marriage, whether dropping out of marriage due to divorce or due to death, is a new thing in Islamic jurisprudence (fiqh). This is because the concept of mutual treasure is not known in the books of classical Islamic jurisprudence of Muslim scholars of the schools at their times, in which their work are always made as referral in the legal cases up to the present days. In Indonesia, the distribution of common property is regulated in the Compilation of Islamic Laws Articles 96 and 97, which stipulate the rules of distribution of joint property for married couples whose married are off as a result of divorce or death. Article 97 of the Compilation of Islamic Law actually provides an overview of the flexibility of the distribution of common marital property, including in certain cases because the article is regulating (regelen) rather than forcing (dwigen), so that the division is not absolutely divided equally between husband and wife, and casuistically the provisions of that article may be disregarded.

scholarly journals Kedudukan Perempuan dalam Hukum Waris Adat Batak Toba

2018 ◽  
Author(s):  
Elpina
Keyword(s):  
Law Enforcement ◽  
Indigenous Peoples ◽  
Customary Law ◽  
Social Culture ◽  
Kinship System ◽  
Law Enforcement Officials ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Political Economic

Customary law is the law of life (living low) that grow and develop in the midst of the community in accordancewith the development of society. Customary law who live in midst of ethnic Indonesia is very strategic to be knownand understood by law enforcement officials, legal observers and guidance in applying the appropriate legal andfair for Indonesian society. The common law does not give the right role and the same degree between men andwomen in life, social, culture, political, economic and domestic life and marriage property and inheritance.Landing directly above the law would cause problems among indigenous peoples, especially the indigenous peopleembrace patrilinieal or matrilineal kinship system, such as that experienced by the Batak people who mbracepatrilineal kindship systems knows in Toba Batak society is patrilineal system, which through the male lineage andis the next generation of his parents while girls not the generation of their parents, as a result of this system is veryinfluential on the position of girls in matters of inheritance.

scholarly journals The Interior Appeal of the FAS of Russia: the Role of Legal Positions in the Development of Uniformity of Law Enforcement Practice

2019 ◽  
pp. 78-83
Author(s):  
O. A. Moskvitin ◽  
I. P. Bochinin
Keyword(s):  
Law Enforcement ◽  
Competition Law ◽  
Federal Law ◽  
Antimonopoly Law ◽  
Uniform Law ◽  
The Law ◽  
Compliance With The Law ◽  
The Right

The article discusses some problems of the formation of a uniform law enforcement practice on the example of specific decisions of the FAS Russia Board of Appeals on issues related to: the application of the rules for the qualification of antitrust violations provided for in part 1 of art. 10 of the Federal Law «On Protection of Competition»; the need to prove the fulfillment of an agreement prohibited by art.16 of the same Law; the exercise of the right of the FAS Russia collegial bodies to refer the matter for a new consideration to the territorial antimonopoly body. It is concluded that the legal positions of the Appeal Board of FAS Russia, being based on the law and applied only in compliance with the law, help to effectively resolve controversial problems of pre-trial Antimonopoly law enforcement and to develop uniform approaches to the interpretation of the rules of competition law.

scholarly journals PERLINDUNGAN HUKUM TERHADAP KELALAIAN PEMENUHAN PEMBAYARAN NAFKAH ANAK PASCA PERCERAIAN BERDASARKAN PUTUSAN PENGADILAN AGAMA BLITAR

2020 ◽  
Vol 9 (1) ◽  
pp. 50
Author(s):  
Rufia Wahyuning Pratiwi
Keyword(s):  
Law Enforcement ◽  
Human Values ◽  
Legal Problem ◽  
The Law ◽  
The Right ◽  
Sense Of Justice

Penelitian ini dilatar belakangi oleh adanya beberapa permasalahan yang ada di Pengadilan Agama Blitar, dengan beberapa pengaduan masyarakat terkait tentang lalainya mantan suami dalam kewajibannya memberikan nafkah kepada anaknya pasca perceraian.  Karena anak adalah manusia kecil yang butuh perlindungan dan butuh diperlakukan secara manusiawi, dan sila kemanuasian yang adil dan beradab maupun misi dalam maqoshidussyariah hifdhul nafsi dan hifdhul nasl (melindungi jiwa dan keturunan) dalam syariah Islam harus terwujud. Tujuan penelitian ini agar supaya para pencari keadilan cerdas dan paham akan hukum serta langkah-langkah yang harus ditempuh dalam menghadapi suatu permasalahan hukum guna tegaknya hukum dan terwujudnya keadilan. Hasil penelitian ini memperoleh bahwa hasil pertama mengetahui penyebab adanya kelalaian terhadap pemenuhan pembayaran nafkah anak pasca perceraian, sehingga perlu ditelaah ulang tentang putusan hakim yang bisa menjadi tolak ukur telah adanya jiwa kemanusian demi tegaknya hukum dan rasa keadilan yang dirasakan oleh pencari keadilan. Kedua, mencari solusi tepat agar produk pengadilan yang berupa putusan benar-benar bisa mencerminkan nilai-nilai kemanusiaan, keadilan yang benar-benar bisa melindungi kepentingan para pencari keadilan.Kata kunci: anak, perceraian, perlindungan, hukum This research is motivated by a number of problems that exist in the Blitar Religious Court, with some related public complaints about the negligence of ex-husband in his obligation to provide for their children after divorce. Because children are little people who need protection and need to be treated humanely, and the precepts of fair and civilized humanity and mission in maqoshidussyariah hifdhul nafsi and hifdhul nasl (protecting souls and offspring) in Islamic sharia must be realized. The purpose of this study is so that justice seekers are smart and understand the law and steps that must be taken in dealing with a legal problem in order to uphold the law and the realization of justice. The results of this study found that the first result found out the cause of negligence in fulfilling child income payments after divorce, so it was necessary to review the judge's decision that could become a benchmark for the existence of a humanitarian spirit for the sake of law enforcement and a sense of justice felt by justice seekers. Second, finding the right solution so that court products in the form of decisions can truly reflect human values, justice which can truly protect the interests of justice seekers.Keywords: child, divorce, protection, law

ON THE PROBLEMS OF EXERCISING THE AUTHORITY OF THE REPRESENTATIVE OF THE CLAIMANT TO RECEIVE THE AWARDED FUNDS: ALL DOUBTS ARE NOT IN FAVOR

2021 ◽  
Vol 10 (6) ◽  
pp. 294-316
Author(s):  
E.V. ZAICHENKO
Keyword(s):  
Bank Account ◽  
Judicial Practice ◽  
Special Power ◽  
The Law ◽  
The Right ◽  
To Receive

The author examines the problematic aspects of the implementation by the representative of the claimant under the enforcement document of a special power to receive funds both in the course of enforcement in the presence of enforcement proceedings initiated in the relevant division of bailiffs, and in the order of presenting the writ of execution directly to a Bank or other credit organization. It is stated that there is no uniformity of judicial practice on the issue of recognizing the right of a representative to demand the transfer of funds due to the recoverer to the account of the recoverer’s representative in the event of the exercise of this power during the initiated enforcement proceedings. The article substantiates the provision on the involuntary nature of the Bank’s actions carried out in accordance with Article 8 of the Law on Enforcement Proceedings, as well as on the unreasonableness of the ban on transferring funds to the personal Bank account of the representative in the case of applying with an enforcement document to the Bank for the purpose of collecting in a simplified manner. It is concluded that there are no significant grounds for differentiating the considered options for collecting funds in order to determine whether the representative of the recoverer has the right to receive the money awarded to the recoverer.

The order of property realisation in bankruptcy (insolvency) procedure under the law of Ukraine and Germany

2021 ◽  
Vol 28 (4) ◽  
pp. 210-222
Author(s):  
Oleksandr D. Sviatotskyi ◽  
Rodion B. Poliakov
Keyword(s):  
Legal Framework ◽  
Legal Analysis ◽  
Electronic Trading ◽  
Trading System ◽  
Legal Study ◽  
Judicial Practice ◽  
Legal Provisions ◽  
German Legislation ◽  
The Law ◽  
The Right

The article represents a comparative legal study of the specifics of the order of debtor's property realisation in the bankruptcy procedure under the law of Ukraine and Germany through the application of hermeneutic (used in accessing the essence of the legal framework and judicial practice); axiological (in determining the evaluative base) along with phenomenological (and the nature of the phenomena); systematic (modeling of the functioning systems) methodological toolkit. The authors emphasise the importance of legal provisions governing the sale of the debtor's property, due to the natural proximity of this stage of the competitive process to the financial component, which, in turn, is inevitably associated with various abuses. An electronic trading system had been recently introduced in Ukraine, on which therefore many hopes and expectations were relied upon. However, the electronic trading system did not cope with tasks set, and many new problems were added to the old ones. The article states that the existence of problematic issues in the procedure of bankrupt property realisation is confirmed, in particular, by the court practice. However, judicial practice in itself often becomes a source of problems. The article pays special attention to the German legislation, which uses a radically opposite model of property sale in insolvency proceedings. The authors justifiably propose to make certain changes to the Ukrainian legislation, by using the positive experience of Germany. As a result of a comparative legal analysis of the legislation of Ukraine and Germany, the authors provide ways of solving the raised issues in the article. The implementation of the recommendations submitted within this comparative-legal study should improve the quality of bankruptcy proceedings, reduce the number of abuses by insolvency trustees, as well as protect the rights and property interests of competitive creditors and creditors with the right of separate satisfaction

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