ABANDONMENT OF MOTHERHOOD IN THE SYSTEM OF LEGAL FACTS: PROBLEMS OF DISCREPANCY BETWEEN THEORY AND PRACTICE

2021 ◽  
pp. 126-136
Author(s):  
Natalya A. Ablyatipova ◽  
Keyword(s):  
Law Enforcement ◽  
Adoptive Parents ◽  
Theory And Practice ◽  
Parental Rights ◽  
Inappropriate Use ◽  
Judicial Practice ◽  
Parents And Children ◽  
Imple Mentation ◽  
The One ◽  
The Right

The problem of improving the norms of family law in terms of protecting the rights and interests of parents and children is long overdue. At first glance, the current Russian family legislation sufficiently regulates the issues of establishing the origin of children, the issues of birth registration and the rules for specifying the child's parents. However, one of the gaps is the voluntary refusal to exercise parental authority. In the legislation, the term "abandonment of a child" does not exist, but in fact, in practice, it is possible to perform this action. The issues of the legal nature of the parents ' rejection of the child, its content and legal conse-quences are not given sufficient attention, while the lack of a theoretical basis not only hin-ders the improvement of legislation, but also leads to a "free" interpretation of the current norms by law enforcement entities. In this regard, this study highlights the right to mother-hood and aims to consider it in the context of the legal possibilities of the mother of the child not to fulfill the obligations provided for by law by refusing them. The article examines the refusal procedure, identifies individual forms of refusal imple-mentation and their legal consequences. Based on the analysis of legislation and judicial practice, it is highlighted that in the course of law enforcement practice, situations are identified that are not covered by the existing norms. The analyzed norms testify to the inappropriate use of the term “abandonment of motherhood”. Refusal to exercise the powers of motherhood, fulfillment of duties, as well as granting consent to adoption are not a manifestation of the right to dispose of parental rights, which are inherently inseparable from the person. The author has established that the actual mechanism of this procedure is expressed in two possible forms: 1) the absence of the fact of the emergence of a legal connection between the mother and the child; 2) deprivation of parental rights in the manner prescribed by law. Based on the analysis of the materials of judicial practice, certain problems of the procedure for abandoning the child by the mother, as well as the consequences of the placement of children, depending on the form of refusal, were identified. It is established that on the one hand, if the mother of the child leaves the child without expressing the intention of further placement, the law establishes the basis for the deprivation of her parental rights after six months. On the other hand, if consent to the adoption is given with the indication of potential adoptive parents, the time period during which such adoption should be implemented and how the legal connection between the mother and the child will be severed is not established procedurally. The author identifies a number of typical problems associated with the refusal of the mother to take the child and exercise parental rights, and therefore offers recommendations aimed at improving the legislation, taking into account the needs of the current law enforce-ment practice.

Joint bankruptcy of spouses: theory and practice issues

2021 ◽  
pp. 271-280
Author(s):  
Irina E. Belova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Scientific Literature ◽  
Theory And Practice ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject ◽  
The Russian Federation ◽  
The Right

We research the issue of the current law enforcement practice of considering cases of joint bankruptcy of spouses in the framework of insolvency procedures of individuals. We emphasize that at the legislative level, joint bankruptcy of spouses and multiple persons on the debtor’s side is not provided for. Initially, this resulted in a lack of courts’ uniform approach, which has become a subject of discussion in the scientific literature. In this context, we pay attention to the importance of adoption by the Plenum of the Supreme Court of the Russian Federation of position on the combining admissibility of spouses’ banknote cases. In turn, the permissibility of combining cases did not resolve the issue of possibility of accepting a joint bankruptcy application, which again led to discrepancies in judicial practice. Special attention is paid to the admissibility of combining cases, which is the right of the court, and not its duty. We note that the arbitration courts, when solving this issue, study such circumstances as the subject composition of the persons participating in the cases of debtors, the volume and nature of prop-erty that is part of the bankruptcy estate of each debtor’s property, the per-formance of duties of financial manager by the same person. Despite the de-veloping judicial practice of joint bankruptcy of spouses, justified by the ex-planations of the Plenum of the Supreme Court of the Russian Federation, we believe that it expedient and necessary to establish the grounds, procedure and conditions for joint bankruptcy of individuals who are spouses at the legislative level.

REGARDING THE REGULATORY REGULATION OF TERMS AND PROCEDURE FOR ADMINISTRATIVE DETENTION OF OFFENSERS FOR DOMESTIC VIOLENCE

2021 ◽  
Vol 2 (2) ◽  
pp. 161-167
Author(s):  
Andrіy Shulha ◽  
◽  
Olha Peresada ◽  
Tetyana Khailova ◽  
◽  
...  
Keyword(s):  
Domestic Violence ◽  
Law Enforcement ◽  
Physical Nature ◽  
Law Enforcement Officers ◽  
The One ◽  
Administrative Proceedings ◽  
The Right ◽  
National Police ◽  
Current Code ◽  
Administrative Detention

The article deals with the issue of normative regulation of the terms and procedure of administrative detention of offenders committed domestic violence in order to justify increasing the detention period for domestic brawlers for more than three hours. It is proposed to supplement Article 263 of the Code of Ukraine on Administrative Offenses with the fourth part of the following content: “Persons who have committed domestic violence, i.e. the intentional commission of any act of a physical nature (use of violence that did not cause bodily harm; threats; insults or persecution; deprivation of housing, food, clothing, other property or funds that belongs to the victim, who has the right on it guaranteed by law, et.) must be detained for up to 72 hours for referral to trial if the physical or mental health of the victim was damaged or could be damaged. This applies to cases if the urgent injunction was not executed by the person in respect of whom the order was issued or if person did not notify the authorized units of the National Police of Ukraine of the place of his/her temporary stay”. It was proposed to detain domestic rowdies after administrative detention in special rooms for arrestees. The proposal of legal scholars and law enforcement officers regarding the possibility of administrative proceedings without the obligatory presence of a person who was brought to administrative responsibility for committing domestic violence has been also supported. This provision of the current Code of Ukraine on Administrative Offenses already in its content has certain precedents for increasing the term of compulsory detention of a detained person for committing certain administrative offenses. Thus, there is a certain procedural precedent, which makes it possible to increase the terms of administrative detention for other administrative offenses, which in their content have more significant harmful consequences for society, such as Article 10 of this Code. Thus, among the administrative offenses, such as those listed in paragraph 1 of part 2 of Article 262 of the Code of Administrative Offenses of Ukraine, for which administrative detention is provided for no more than three hours, domestic violence is the one that, on our opinion, has the most serious harmful consequences for society.

scholarly journals CONTRACTUAL BASIS FOR TERMINATION OF CIVIL LEGAL OBLIGATIONS: PROBLEMS OF THEORY AND PRACTICE OF APPLICATION

2021 ◽  
Vol 31 (6) ◽  
pp. 1054-1058
Author(s):  
N.V. Kuznetsova
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Code ◽  
Theory And Practice ◽  
Freedom Of Contract ◽  
Judicial Practice ◽  
Legal Obligations ◽  
Problematic Issue ◽  
The Russian Federation

The article considers contractual grounds for termination of civil obligations: compensation, innovation, debt forgiveness. The paper notes some problems of the application of Articles 409, 414, 415 of the Civil Code of the Russian Federation in judicial practice, analyzes the issues of the ratio of compensation and innovation, the differentiation of these contracts. The problems of qualification of agreements on the grounds for termination of obligations in law enforcement practice and the question of applying the principle of freedom of contract to the relations under consideration are considered. It is noted that at present the practice of applying the legislation on compensation has changed significantly. Despite the restrictions established by the norm of Article 409 of the Civil Code of the Russian Federation, judicial practice allows the possibility of using works and services as a subject of compensation, which leads to problems of distinguishing such contractual grounds for termination of obligations as compensation and innovation. With regard to the innovation, an analysis of the provisions on the possibility of novating the penalty into a loan obligation is given. A problematic issue is the legal qualification of debt forgiveness as a basis for termination of an obligation. It is noted that the contractual nature of debt forgiveness should be taken into account. Acceptance of notification by the debtor's creditor of his release from the performance of his duty is the silence of the debtor (clause 2 of Article 438 of the Civil Code of the Russian Federation). The article also considers the question of the ratio of debt forgiveness and donation. The analysis of judicial practice shows that the courts do not consider debt forgiveness as a gift, except in cases when the creditor released the debtor from the performance of the obligation free of charge. In this case, the norms of Article 168 of the Civil Code of the Russian Federation and paragraph 4 of Article 575 of the Civil Code of the Russian Federation are subject to the application of debt forgiveness.

scholarly journals Legal doctrine as a result of courts’ enforcement activity

2020 ◽  
pp. 54-62
Author(s):  
Parkchomenko Natalia
Keyword(s):  
Law Enforcement ◽  
The Other ◽  
Legal Doctrine ◽  
Standard Case ◽  
Judicial Practice ◽  
Legal Effect ◽  
Judicial Doctrine ◽  
The One ◽  
Definition Of ◽  
Enforcement Activity

The conceptual approaches to determine the essence and a concept of a legal doctrine as a source of law were found. The value of generally accepted principles of State’s and law development in the process of legislation activity and enforcement, including the interpretation rules of law, was highlighted. Although, the legal doctrine could change in nature, that determines its essence, content and mission. So the purpose of this research, accordingly, is to figure out the essence and concept of legal doctrine that is emerging in a result of the consolidation of courts’ enforcement and law interpretation practice. On the one hand, law enforcement and law interpretation by judicial authority must be based on the achievements in the legal science. On the other hand, it serves as a court-made doctrine. It creates the conceptual approaches to overcome gaps in a law and to improve a law enforcement. It influence on the development of legal system and system of law. It was concluded that judicial doctrine is formed by a formulation of typical approaches, established to solving specific cases. Introduction to the Ukrainian legislation such notions as “exemplary case” and “standard case”. This above mentioned is an important step to the increasing importance of judicial doctrine and recognition of its role as a source of law in Ukraine. Thus the perception of law, judicial practice, judicial legislation in society is changing. Also, in our review, the legal construction of the definition of The Supreme Court’s conclusions legal effect requires the enhancement. That is due to their binding nature, as enshrined in the Constitution of Ukraine. Only on that condition, the increasing of effectiveness of judicial enforcement and perception of judicial doctrine as a source of law may be expected.

Federal Accounting Standard 5/2019 – Inventories: An analysis of conceptual changes

2020 ◽  
Vol 23 (8) ◽  
pp. 844-863
Author(s):  
M.A. Gorodilov
Keyword(s):  
Law Enforcement ◽  
Conceptual Framework ◽  
Theory And Practice ◽  
Accounting Standard ◽  
Internal Standards ◽  
Accounting Practice ◽  
Initial Cost ◽  
Conceptual Changes ◽  
Business Entities ◽  
The One

Subject. This article investigates the conceptual developments in the Russian theory and practice of accounting for inventories due to the adoption of the new standard. Objectives. The article identifies and substantiates critical changes in the conceptual framework, classifications, law enforcement practice during the integration of Federal Accounting Standard 5/2019 – Inventories into the accounting theory and practice of the Russian companies. Methods. The study is based on a comparative analysis. Results. The new standard was found to not only supersede the one approved in 2001, demonstrate a greater compliance with the identical standard. However, it does have some distinctions, which are very specific by nature. The new standard enriches the conceptual framework, adds new items of expenditures, both current and future, which can be attributed to the initial cost of inventories due to the profitable nature of inventories as assets. I point out eight different changes that seem conceptual and constituting the novelty of the study. Conclusions and Relevance. The application of Federal Accounting Standard 5/2019 – Inventories will induce the revision of corporate accounting policies, setting up new internal standards of business entities. What does make them beneficial is the convergence of the national accounting practice and IFRS.

Actions in the Interest of Others Without Commission: Problems of Theory and Practice

2021 ◽  
pp. 34-37
Author(s):  
Piskunova N. I. ◽  
Keyword(s):  
Comparative Analysis ◽  
Theory And Practice ◽  
Unjust Enrichment ◽  
Judicial Practice ◽  
The Right

The article discusses the conditions for qualifying actions in someone else’s interest without a mandate and the requirements that must be met in order to obtain the right to reimburse the expenses incurred. The problems that arise in judicial practice during the qualification of these actions are identified. A comparative analysis of obligations arising from actions in the interest of others, and obligations from unjust enrichment. The author concluded that obligations from actions in the interests of others and obligations from unjust enrichment should not be mixed, and therefore there was a need to develop more clearly defined criteria to distinguish between the scope of these obligations.

scholarly journals Appealing against Decisions on Reimbursement of Procedural Costs Made in accordance with Part 3 of Art. 131 of the Criminal Procedure Code of the Russian Federation

2021 ◽  
Vol 16 (11) ◽  
pp. 155-166
Author(s):  
S. R. Zelenin
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
The Body ◽  
Constitutional Court ◽  
Judicial Practice ◽  
Procedural Costs ◽  
The Russian Federation ◽  
The One ◽  
Judicial Procedure ◽  
The Right

The legality and validity of the decisions of the investigator, inquirer and the prosecutor on the payment  of the amounts related to procedural costs remain problematic due to the absence in the law of a mechanism  ensuring the judicial procedure for their appeal.  In order to fill this gap, the author studies the possibilities of introducing a procedure similar to the one enshrined  in Art. 125 of the Code of Criminal Procedure of the Russian Federation. The paper analyzes the positions of the  Resolution of the Constitutional Court of the Russian Federation No. 18-P dated May 13, 2021. It concerns the  victims’ appeal against the decisions of the investigator and the head of the investigative body regarding the  reimbursement of expenses for a representative. Some examples of judicial practice for resolving other disputes  related to the reimbursement of procedural costs are also analyzed.  It is concluded that the right of a person claiming to receive the amounts provided for in Part 2 of Art. 131 of the  Code of Criminal Procedure of the Russian Federation against a judicial appeal made at his request is universal  and does not depend either on his status in a criminal case, or on the type of the indicated amounts, or on the  body or official that made the contested decision.  Taking into account the practice of applying other norms on appealing against decisions of the investigating  bodies, it was proposed to introduce Art. 125.2. The author formulate its content given the characteristics of the  participants in the proceedings and the powers of the court to resolve the complaint.

scholarly journals THE ELIMINATION FROM THE RIGHT TO INHERITANCE: THEORY AND PRACTICE

2020 ◽  
pp. 5-9
Author(s):  
M. Bondareva ◽  
S. Rabovska
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Case Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Theory And Practice ◽  
Systematic Analysis ◽  
The Supreme Court ◽  
Legal Position ◽  
The Right

The article deals with the legal regulation for removal from the right to inheritance and law enforcement of the norm of Art. 1224 of the Civil Code of Ukraine. The study aims at developing the theoretical foundations of the application of this legal norm on the basis of analysis of legislation and case law. Such methods and approaches as systematic analysis and competent legal interpretation have been applied. The Civil Code of Ukraine regulates cases and removal of grounds for the right to inheritance. Article 1224 of the Civil Code of Ukraine is applied to heirs at law; it distinguishes cases and grounds for exclusion from the right to inheritance by various criteria. However, what is typical for the countries of the continental group, the law needs to be clarified, first of all at the level of law enforcement practice. The highest jurisdiction of Ukraine – the Supreme Court of Ukraine and the Supreme Court, made appropriate clarifications and interpretations of relevant legal norms at the general theoretical level (decision of the Plenum of the Supreme Court of Ukraine) and at the level of unification of general practice through expressing a legal position in specific cases. Such interpretation should be considered clearly and sufficiently for further processing. However, judicial interpretation is not competent to correct legislative inaccuracies. And the case law itself is characterized by a tautology and inconsistency, when the departure from the previously adopted legal position is disguised under the difference of legal and factual grounds of the claim. The results of such miscalculations include variability of methods of judicial protection for the heirs of the first turn (paragraph 2, part 3 of Article 1224 and part 5 of Article 1224 of the Civil Code of Ukraine) and procedural difficulties in proving claims – proving the testator's helplessness, address need assistance from the defendant, etc. In addition to legal uncertainty, which results in the poor functioning of institutions of exclusion from the right to inherit, this state of affairs creates grounds for abuse of rights. The authors propose measures to solve the problem, which can be divided into several groups. The first concerns amendments to Paragraph 2, Part 3 of Art. 1224 and Part 5 of Art. 1224 of the Civil Code of Ukraine: in terms of the subject composition, in particular, the permission of the heirs of other than the first turn, the order of inheritance, to sue on the basis of Paragraph 2 of part 3 of Article 1224 of the Civil Code of Ukraine. The second is aimed at intensifying the institution provided by Paragraph 2 of Part 3 of Article 1224 of the Civil Code of Ukraine, inter alia, due to the uniformity and consistency of judicial practice. The introduction of the principle of participation in inheritance by bona fide heirs as a reward for their care of the testator, and the relatively easy removal of the right to inherit those who did not show such care, will also contribute to the revival of law enforcement. Finally, the third group of measures is related to the promotion of inheritance through wills, which will limit the number of disputes in inheritance cases (mainly cases of invalidation of the will) and put an end to the issue of exclusion from the right to inherit.

scholarly journals The problem of violations and abuses of the right of the employer when reducing the staff in the organization: through the prism of judicial practice

nauka.me ◽  
2021 ◽  
pp. 37
Author(s):  
Elena Fed'ko
Keyword(s):  
Law Enforcement ◽  
Research Work ◽  
Employment Contract ◽  
Judicial Practice ◽  
Labor Legislation ◽  
The Right

The research work is devoted to the issues of termination of an employment contract in connection with offenses and abuse of rights on the part of employers. The purpose of this work is to identify violations and abusing of rights for the part of employers in a law enforcement practice, as well as to amend the labor legislation in order to minimize illegal actions of employers to protect the rights of employees.

scholarly journals ON CERTAIN PROBLEMS OF CONFERMENT OF THE TITLE «LABOR VETERAN»: ANALYSIS OF LEGISLATION AND LAW ENFORCEMENT PRACTICE

2020 ◽  
Vol 6 (4) ◽  
pp. 38-42
Author(s):  
A. A. Elaev
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Russian Federation ◽  
Labor Relations ◽  
Labor Rights ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Long Time ◽  
The Russian Federation ◽  
The Right

The right to free work and choice of activity is enshrined in the Constitution of the Russian Federation. At the same time, ensuring and protecting the labor rights of citizens is one of the main categories of the rule of law. The legislation of the Russian Federation regulating labor relations is aimed at encouraging a conscientious attitude to work for a long time, and one of these types of encouragement is the title Veteran of labor. However, in practice, quite often there are certain difficulties that arise due to departmental and regional rulemaking. The article attempts to analyze the current situation based on judicial practice.

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