scholarly journals Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

2021 ◽  
pp. 240-262
Author(s):  
V. G. Golubtsov ◽  
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Modern Science ◽  
Legal Regulation ◽  
Public Law ◽  
Procedural Law ◽  
The One ◽  
The Right ◽  
Substantive Law ◽  
The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

ON INTERACTION OF MATERIAL AND PROCEDURAL LAW IN THE CONTEXT OF REFORMING THE NOMENCLATURE OF SCIENTIFIC SPECIALTIES IN JURISPRUDENCE

2021 ◽  
Vol 3 (3) ◽  
pp. 214-231
Author(s):  
S.I. Suslova
Keyword(s):  
Civil Law ◽  
Scientific Research ◽  
Civil Procedure ◽  
Dialectical Logic ◽  
Advantages And Disadvantages ◽  
Procedural Law ◽  
Depth Study ◽  
Civil Science ◽  
Substantive Law ◽  
The Relationship

Introduction: the influence of the material branches of law on the content and development of procedural branches has long been substantiated in the legal literature. At the same time, civil law scholars, limited by the scope of the nomenclature of scientific specialties in legal sciences, do not have the opportunity to conduct dissertation research aimed at identifying the influence of procedural branches on the norms of substantive law. With regard to scientific research, the study of such an impact is currently permissible only within the specialty 12.00.15. Reforming the nomenclature of scientific specialties towards its enlargement creates the basis for the development of the scientific theory of intersectoral relations, developed by M.Iu. Chelyshev. An in-depth study of the intersectoral interaction of civil law and civil procedure will contribute not only to the development of scientific knowledge, but also will allow solving practical problems at a different methodological level. Purpose: to analyze the stages of the formation of scientific specialties in the context of the relationship between civil law and procedure, to identify the advantages and disadvantages of uniting and dividing civil law and procedure in scientific research, to analyze dissertations in different periods of development of the science of civil law and the science of civil procedure, to formulate ways to improve directions of research to bridge the gap between the science of civil law and procedure. Methods: empirical methods of description, interpretation; theoretical methods of formal and dialectical logic. The legal-dogmatic private scientific method was used. Results: identified the main views on the ratio of material and procedural branches in legal science; it is illustrated that the intersectoral approach is currently admissible only for dissertations in the specialty 12.00.15, which led to an almost complete absence of scientific research on this topic in civil science; substantiated the need to establish the bilateral nature of the relationship and interaction of material and procedural block. Conclusions: reforming the nomenclature of scientific specialties by right in the direction of their enlargement should have a positive effect on bridging the gap that has developed between works on civil law and civil law procedure in the last years of their separate existence. This is especially true of civil science, which developed its own scientific theories in isolation from the possibilities of their implementation within the framework of procedural law. The methodological basis for solving these problems has already been formed – this is an intersectoral method, the application of which is justified and demonstrated in the works of M.Iu. Chelyshev.

scholarly journals Transformation of Leased Land Use of Agricultural Enterprises in Ukraine in Limited Land Market

2019 ◽  
Vol 10 ◽  
pp. 16-25
Author(s):  
Liudmyla Kolosa ◽  
Liudmyla Hunko
Keyword(s):  
Land Use ◽  
Agricultural Land ◽  
Civil Law ◽  
Legal Regulation ◽  
Land Market ◽  
Private Land ◽  
Agricultural Enterprises ◽  
Legal Restrictions ◽  
The Right ◽  
Substantive Law

The result of the long existence of legal restrictions on the agricultural land market in Ukraine was the formation of a specific leasehold system of land use. Agricultural enterprises and farms do not have land owned. Instead, the peasants who became owners of land during the distribution of collective farms, mostly do not process these parcels of land on their own, but also deprived of the right to alienate them (to sell, give, change). The study shows the development of leased land use of agricultural enterprises in Ukraine, which currently covers 16.8 million hectares of private land and about 1 million hectares of state-owned land. Since 2003, the civil law of Ukraine permitted to apply not only the lease of agricultural land, but also the emphyteusis right (the alienated right to use someone’s land for agricultural purposes), the process of transformation of lease into emphyteusis was started, especially in large agricultural holdings. The main advantages of emphyteusis as a substantive law and its attractiveness for agribusiness are considered. The suggestions on improving the legal regulation of land use under conditions of emphyteusis are given.

scholarly journals On the issue of restriction of individual rights in civil law. Correlation between the concepts of restriction and encumbrance of civil rights

2021 ◽  
pp. 146-150
Author(s):  
V.M. Marovdi
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Fundamental Principle ◽  
Individual Rights ◽  
Basic Law ◽  
National Legal System ◽  
Definition Of ◽  
The Right ◽  
The Relationship ◽  
Work First

In this article the author considers the concept of restriction of individual rights in civil law, as well as the re-lationship between the concepts of restriction and encumbrance of civil rights. First of all, the lack of a legislative definition of the concept of restriction of individual rights in civil law, as well as the ambiguity of the position of the legislator on the use of the term restriction and its place among related conceptsIn writing this work, first of all, attention was paid to the Constitution of Ukraine, which is the Basic Law, which serves as a guide that establishes the general boundaries of human and civil rights. The connection of the provisions of the Constitution with the norms of the Civil Code of Ukraine within the framework of the chosen topic was presented. Emphasis is placed on the fundamental principle according to which the national legal system is built, namely: “everything is allowed that is not expressly prohibited by law.”The views of some scholars who adhere to their vision of the concepts under study are given. In addition, in this study, the relationship between the concepts of restriction and encumbrance of individual rights in civil law. In the process of writing this work, the positions of legal scholars who had relatively similar positions were given. They distinguish between the above concepts, and provide the relevant features. However, outside the scope of this study were many works of scientists who do not see a difference in these concepts.None of this was left out of the regulatory framework for the definition of the above concepts at the legislative level. In particular, it was found that in contrast to the concept of restriction of individual rights, including in civil law, the current legislation contains a definition of encumbrance. There are several acts that provide this definition. And in all cases, the definition is different.Based on the analysis of regulations, it was found that the legislator does not consistently approach the definition of encumbrance. In particular, in some cases the latter includes the encumbrancer’s right to the debtor’s movable property or restriction of such right, in others - prohibition or restriction of disposal and / or use of real estate, and in some cases the legislator identifies encumbrances and restrictions.According to the results of the study, the conclusions on the failure to define in national law the concept of re-strictions on the rights of persons in civil law, as well as the lack of a clear distinction between the concept of restric-tion of the right of person and encumbrance, in particular under civil law. There is a position on the need for further research on relevant topics, which will ensure clarity and clarity of the law, and promote its effective application, as well as consensus on this issue among scholars.

Temporal certainty of material civil legal relations. Some problematic issues

2021 ◽  
pp. 91-96
Author(s):  
P. Guyvan
Keyword(s):  
Civil Rights ◽  
New Right ◽  
Legal Relationship ◽  
Temporal Boundary ◽  
The Moment ◽  
Definition Of ◽  
The Right ◽  
Substantive Law ◽  
Real Essence ◽  
The Relationship

This article is devoted to the study of the scientific question of the temporal parameters of the certainty of the protection and legal relationship that arises in the case of violation of the subjective civil rights of the person. The author’s vision of the time of existence of the law is given, in this context the fundamental difference between the concepts of "duration of the legal relationship" and "time of exercise of subjective right" is substantiated. It is substantiated that the duration of the behavior of the contractors is not always equal to the duration of the legal relationship, because the moment of the relationship does not always coincide with the moment of its implementation. Along with the legal relationship arises not the behavior itself, but only the legal means of ensuring such behavior – a subjective right and legal obligation. So, on the other hand, the time for the exercise of a subjective right coincides with the period of its existence. Given that the temporal factors in the protection of law have a significant specificity of regulation, a fundamental separation of protective and regulatory material relations. The fact is that it is not always easy to establish a temporal boundary when an intact right passes to a disturbed state. This means that there are certain problems in accessing the appropriate protective tools. Examples of such substitution of concepts and criteria for their elimination are given. The paper also provides a scientific definition of the real essence of the protective relationship, which is that in the case of violation of subjective substantive law there is a different than before, the interaction, which is protective and legal in nature. It includes the material claim of the right holder to the infringer and the corresponding obligation of the latter. It is noted that the forms of implementation of the protection requirement of the holder of the new right may be different, each of them has its own time regulators. For example, a lawsuit is filed for a limited period of time – a statute of limitations, while for operational measures or other out–of–court claims there are special deadlines, or no time limit at all. Therefore, the need for a separate temporal mediation of each of these methods of protective response is emphasized.

scholarly journals Protection of civil property rights in case of recognition of the contract as not concluded

2021 ◽  
Vol 2 (20) ◽  
pp. 3
Author(s):  
O. A. Surzhenko
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Civil Law ◽  
Procedural Law ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Law ◽  
The Right ◽  
Legal Consequences

The article examines the problems of protecting civil property rights, one of the ways of which is to recognize the transaction as invalid. When analyzing this method of protection, violations by a transaction of the conditions of its action, the legal nature of invalid transactions, individual grounds and legal consequences of their invalidity are considered. Transactions that have certain drawbacks, and therefore do not meet the conditions that make the person’s actions legitimate, closely intersect with other actions that also do not lead to the purpose for which they were committed. These are not concluded contracts. The plane of intersection of these actions is quite significant, and the criteria for their delimitation are not regulated in the law, but in judicial practice are sometimes worked out contradictory. This applies to non-compliance with the requirements for the form of the transaction (in particular, the signature of the person), essential conditions, and other provisions of the law.Protection of civil rights is one of the most important categories of the theory of civil and civil procedural law, without clarification of which it is very difficult to understand the nature and characteristics of civil sanctions, the mechanism of their implementation and other issues arising in connection with the violation of civil rights. It is noted that the originality of regulatory civil law is that it arises from legitimate legal actions and is aimed at satisfying any property need. The force of coercion gives it the ability to be provided with legal measures. The right (entitlement) to protection in regulatory legal relations is one of the transactions of any subjective civil law, according to which the rightholder can, in the event of violation of the right, make a demand for the protection of the violated civil law

scholarly journals THE JURIDICAL NATURE OF TERMINATION OF SUBJECTIVE CIVIL RIGHT

2020 ◽  
Vol 33 (20) ◽  
pp. 47-52
Author(s):  
V.Ya. Pohrebniak
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Point Of View ◽  
Subject And Object ◽  
Definition Of ◽  
Structural Connection ◽  
The Right ◽  
The Relationship ◽  
Complex Influence

The article is devoted to the consideration of the essence of termination of subjective civil right as juridical possibilities of appropriate person ensured by provisions of civil law of Ukraine. Ignoring the widespread understanding of termination of subjective civil right as the termination of its belonging to a person the author proposes an alternative point of view on this problem. The independent character of appropriate phenomenon determines the necessity of designation the essence of its termination as an element of juridical reality. In this context, the termination not always mean the termination of belonging of appropriate subjective civil right to a person. The problem is researched by the author in the context of structural connection between elements of juridical construction of civil relationship and terminative influence of juridical facts over them. Particularly the order of termination of the subjective civil right related to its realization and to a waiver of it is analyzed. Considerable attention is paid to termination of the subjective civil right that is the result of the termination of a subjective civil obligation that corresponds to such right, termination of subject and object of relationship. The author also determines juridical schematizations related to the complex influence of terminative circumstances over civil relationships. The content of the sign of absolute termination of a subjective civil right is concretized in the article. It is defined that it means termination of subjective civil right absolutely, but not the only termination its belonging to bearer. The termination of subjective civil right doesn’t relate to its emergence at another person that is the transfer of the right. It is defined that termination of subjective civil rights also characterized by finality. This characteristic concretizes juridical situations in which appropriate juridical consequences appear. Finality means that the termination of the right doesn’t provide its renascence at the appropriate person in concrete circumstances of the juridical situation. The article contains the author’s definition of termination of subjective civil rights. Keywords: termination of right, termination of the relationship, waiver of a right, the realization of right, absolute termination, finality termination.

scholarly journals PROBLEMATIKA GENDER DALAM ISLAM (Telaah Pendekatan Kontekstual)

2020 ◽  
Vol 8 (3) ◽  
pp. 426-440
Author(s):  
Ahmad Sahal Mubarok ◽  
Saekhoni Saekhoni ◽  
Ahmad Sirfi Fatoni
Keyword(s):  
Descriptive Analysis ◽  
Green Revolution ◽  
Modern Science ◽  
Contextual Approach ◽  
Men And Women ◽  
Women In Islam ◽  
The Government ◽  
The One ◽  
The Right ◽  
The Relationship

This article examines about gender problem by using a contextual approach. This approach means understanding Islam in accordance with the current situation, in this corridor of course the situation will always change, the situation past, present and future will definitely experience differences. Need to know carefully, until now gender issues still has a serious impact on the global arena. Why is that, because this issue is often clashed with religion dogmas, especially Islam religion which is the tendency to not generalize in its laws has subordinate the woman’s party. It appears in the matter of legacy and testimony distribution. This type of research is a qualitative research which has a descriptive analysis characteristic. As for the research results among others: 1) By using the contextual approach, talking about the relationship between men and women in islam in principle can be considered the same as talking around the parallel between the both of them. Because in the religion of Islam in principle the relationship between the both of sexes is equal before Allah as is evident in the surah Al-Hujura@t verse 13. In addition, the great mission of Islam is rahmatan li al-alamin; 2) The government policies including in the world of work, should pay serious attention to equal opportunities for both men and women in the supply of available employment opportunities regardless of gender construction, so that it will produce a justice without inequality. For example, a green revolution program designed without considering gender aspects, in which to harvest the rice is used by a sickle cutting system, not by ani-ani, even though that tool is attached to the women; 3) The Koran as a reference to the principle of society recognizes that the position of men and women is equal. The both of them are created from one nafs, which is the one has no advantage over the other. Even the Koran doesn’t explicitly explain that Hawa was created from Adam’s rib so that her status was lower. On that basis, the principle of the Koran for men and women is the same, where the right of the wife is recognized as equal to the right of the husband, including inheritance and testimony. The action that must be needed now is to bulid a proportional synthesis between the Koran, classical Islamic literature and modern science in order to reinterpret gender issue in depth which is the majority of his understanding is marginalize the women.

Differentiation of the Legal Regulation of the Pledge Depending on from the Object

2021 ◽  
Vol 6 ◽  
pp. 39-44
Author(s):  
I. G. Zhabinsky ◽  
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Legal Regulation ◽  
Ongoing Debate ◽  
Intellectual Activity ◽  
Common Features ◽  
The Relationship ◽  
Legal Entities ◽  
Individual Objects

The article raises the question of differentiating the legal regulation of legal relations arising from a pledge, depending on the object of the pledge. Of course, the pledge as a way of securing the fulfillment of obligations is characterized by common features and general approaches to regulation, regardless of the object, at the same time, the features of individual objects require the specification of the relevant rules. The ongoing debate in science regarding the ratio of objects of civil rights, as well as the lack of unity on the issue of the ratio of individual objects, gives rise to a discussion regarding certain types of collateral, classified depending on the object. The author pays special attention to the pledge of property rights and proposes an approach on the relationship between certain types of property rights, in particular, rights of obligation, rights of participants in legal entities and exclusive rights to the results of intellectual activity.

scholarly journals THE PRINCIPLE OF PROTECTION OF HUMAN AND CIVIL RIGHTS AND FREEDOMS IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 31 (5) ◽  
pp. 917-923
Author(s):  
E.F. Tensina
Keyword(s):  
Civil Rights ◽  
Legal Regulation ◽  
Information Component ◽  
Criminal Proceedings ◽  
The Relationship ◽  
Current Mechanism

The article analyzes the reasons for the introduction of the principle of protection of human and civil rights and freedoms in the criminal procedural system of principles, including taking into account international legislation. The relationship between the concepts of "protection" and "protection" is revealed. The characteristic of its content is given with the allocation of elements. The content of the information component in the activities of officials carrying out criminal proceedings is analyzed. The concepts of witness immunity and witness privilege are defined, their significance for the content of the principle of protection of human and civil rights and freedoms. Particular attention is paid to the issues of legal regulation of the security program for participants in criminal procedural relations and the current mechanism of compensation for harm caused to the victim of a crime. Taking into account the analysis, the problems of legal regulation were identified and proposals were made to eliminate them. The importance of a serious and thoughtful attitude of officials carrying out criminal proceedings to ensuring human and civil rights and freedoms in criminal proceedings is emphasized.

scholarly journals Boundary between Religion and Social Conflict —Perspective from the Civil Rights Movement

2018 ◽  
Vol 1 (2) ◽  
pp. 135
Author(s):  
Qiong Li ◽  
Jie Yang
Keyword(s):  
Civil Rights ◽  
Civil Rights Movement ◽  
Social Conflict ◽  
Safety Valve ◽  
Social Stability ◽  
Politics And Religion ◽  
Religious Factors ◽  
The Right ◽  
The Relationship ◽  
Positive Force

<em>Based on the background of American civil rights movement in which religious factors participated, this study analyzes the function of religious factors in civil rights movement from the perspective of political participation and the principle of separation of politics and religion, in order to consider the research paradigm of the relationship between religion and social conflict. It is believed that religious participation is helpful to exert the positive force of social conflict, the right of religious freedom has, to a certain extent, become the “safety valve” of social stability, and the development of religion is the embodiment of social pluralism and symbiosis.</em>

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