The Proportionality Principle as a Tool for Achieving Balance of Interests in Tax Relations: Theory and Law Enforcement in Russia and abroad

In the article, on the basis of the analysis of doctrinal sources and materials of the judicial practice, are considered issues of protection of debtors’ interests in notarial legal relations in relation to executing inscription execution. The analysis of law enforcement practice shows that the lion's share of executed writs of execution is recognized as not subject to execution in court, and one of the main factors is ignoring the position of the debtor in the process of making a writ of execution. The unilateral process of making a writ of execution, based on documents and information submitted only by the debt collector, without taking into account the position of the debtor, forces the debtor to further apply to the court to protect their interests. Therefore, issues of protection of the debtor's interests need to be resolved as soon as possible in order to prevent the violation of the rights of the parties. The article argues that the formalism of the process and disregard for the interests and position of the debtor in the execution of the writ of execution, becomes the basis for the universal recognition of the writ of execution as unenforceable. This significantly affects the effectiveness of extrajudicial protection of civil rights by notaries, forcing debtors to go to court to protect their interests. Based on the study, the authors proposed to ensure the balance of interests of the parties to the obligation in the process of making a writ of execution, by introducing the obligation of a notary to send a written notice to the debtor of the claimant to make a writ of execution. According to the authors, establishing the obligation of a notary to send a written notice to the debtor of the claimant's application for a writ of execution will promote a more responsible attitude of both debt collectors and notaries to this method of protection of civil rights.

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ASAS PROPORSIONALITAS SEBAGAI MODERASI PANDANGAN HUKUM DIAMETRAL

Jurnal Yudisial ◽

10.29123/jy.v11i3.313 ◽

2018 ◽

Vol 11 (3) ◽

pp. 307

Author(s):

Faiq Tobroni

Keyword(s):

Human Rights ◽

Law Enforcement ◽

Civil Rights ◽

Research Problem ◽

Point Of View ◽

Court Decision ◽

Problem Statement ◽

Legal Principle ◽

The Right ◽

Proportionality Principle

ABSTRAKAdanya pandangan hukum diametral tidak bisa dihindari dalam penegakan hukum. Sebagai contoh terdapat dalam Putusan Nomor 0156/Pdt.P/2013/PA.JS. Kasus ini dianalisis dengan mempertimbangkan pandangan hukum diametral. Penelitian ini mempunyai rumusan masalah apakah asas hukum yang terefleksikan dari pertimbangan hukum yang dikonstruksikan hakim untuk menyikapi hak keperdataan anak hasil hubungan gelap, serta bagaimana kasus tersebut ditinjau dari asas tersebut? Penelitian ini menggunakan metode penelitian hukum normative. Pertimbangan hukum dalam Putusan Nomor 0156/Pdt.P/2013/PA.JS menunjukkan adanya penerapan asas proporsionalitas. Penerapan asas tersebut direfleksikan dari pertimbangan hukum yang mengkompromikan semangat liberalisasi dan pembatasan hak keperdataan. Semangat liberalisasi berakar pada kemutlakan hak asasi manusia yang didukung pandangan universalisme hak asasi manusia. Sementara semangat pembatasan berakar pada sakralitas munakahat Islam yang didukung pandangan relativisme hak asasi manusia. Dengan asas tersebut, majelis hakim menyetujui beberapa hak keperdataan yang termasuk hak sakral dalam munakahat Islam. Solusinya, majelis hakim hanya memberikan hak pemenuhan kebutuhan hidup dan wasiat wajibah kepada anak hasil hubungan gelap. Putusan dan pertimbangan hukum tersebut memenuhi empat indikator asas proporsionalitas sebagai moderasi pandangan hukum diametral, yaitu: necessity, legitimate goal of law, rational achievement, dan balancing.Kata kunci: asas proporsionalitas, hak keperdataan, hak asasi manusia, munakahat Islam, anak hasil hubungan gelap. ABSTRACTThe application of a diametric legal view cannot be avoided in law enforcement. For an example, the case of Court Decision Number 0156/Pdt.P/2013/PA.JS. This case is analyzed by considering the diametric legal point of view. This research problem statement is that what kind of legal principle reflected in the legal considerations of judges in order to address the civil rights of extramarital children and how the case is viewed from principles? This study uses normative legal research methods. Legal considerations in Court Decision Number 0156/Pdt.P/2013/PA.JS indicates the application of proportionality principle. Application of this principle is reflected from the legal considerations that compromise the spirit of liberalization and restriction of civil rights. The spirit of liberalization is rooted in the absolution of human rights supported by universalism view of human rights. Meanwhile, the spirit of restrictions is rooted in the sacredness of munakahat Islam, which is supported by the relativism of human rights. With this principle, the panel of judges approved several civil rights, including sacred rights in munakahat Islam. As a solution, the panel of judges only provide the right to fulfill the necessities of life and the obligatory will to the extramarital children. These judgements and legal considerations fulfill the four indicators of proportionality principle moderating the perspectives of diametric law, namely necessity, legitimate goals of law, rational achievement, and balancing.Keywords: proportionality principle, civil rights, human rights, munakahat Islam, extramarital children.

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The concept of “justice” in the legislation of Russia and France, implementation features

E3S Web of Conferences ◽

10.1051/e3sconf/201913504006 ◽

2019 ◽

Vol 135 ◽

pp. 04006

Author(s):

Vera Borshcheniuk ◽

Nina Semeryanova ◽

Uliana Filatova ◽

Valeriy Zhabskiy

Keyword(s):

Law Enforcement ◽

Rule Of Law ◽

Civil Procedure ◽

Effective Implementation ◽

Judicial Practice ◽

Procedure Code ◽

Administration Of Justice ◽

Balance Of Interests ◽

Principle Of Justice ◽

The Law

The relevance of the study is determined by the prevailing variety of approaches to understanding the essence of the concept of “justice”, which is characteristic of both Russia and France. Such variability leads to a persistent distortion of this concept in practice of law enforcement, which, in turn, affects the effectiveness of administration of justice. The aim of the authors is to study scientific theoretical views and practical issues associated with the implementation of the principle of justice in two states. In the work we used following methods: dialectics, analysis, synthesis, deduction, as well as the formal legal and comparative legal method.Based on the analysis of the doctrine, legislation and judicial practice of two states, Russia and France, the following conclusions are drawn. At present, “justice” is understood as a universal notion, which is not limited only by coverage of regulatory norms of the law, but is actively applied by judicial practice. The use of this concept allows the court to make fair decisions depending on specific circumstances of the case, thereby achieving a balance of interests of participants in the process by interpreting and clarifying the law, and in some cases by creating a new rule of law that allows the courts to ensure the effective implementation of the principle of justice. However, in order to avoid variability in understanding this notion, it is proposed to fix the concept of “justice” in the civil procedure code, this will reduce the percentage of judicial conflicts and will contribute to formation of a uniform judicial practice.

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Who will appraise the arrested property of a debtor?

Interactive science ◽

10.21661/r-497536 ◽

2019 ◽

pp. 22-25

Author(s):

Tamara Ivanovna Korsun

Keyword(s):

Law Enforcement ◽

High Quality ◽

Quality Of Work ◽

Balance Of Interests ◽

The Law

In the article the author pays special attention to the assessment of the debtor's property in enforcement proceedings. The presence of experts-appraisers in the law enforcement services will ensure on-time and high-quality execution of warrants of arrest, appraise and sale of property in order to pay off the alimony, taxes, loans. The author comes to the conclusion that the use of these recommendations can improve the quality of work in the appraisal of property in the course of enforcement proceedings and ensure a balance of interests of debtors, collectors, appraisers.

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Principle of Proportionality in Foreign Legal Doctrine and Practice and its Interpretation in Russia in the Context of Providing Protection of Subjects’ Rights and Legal Interests

10.35853/ufh-rmp-2019-l02 ◽

2019 ◽

pp. 159-167

Author(s):

Mikhail Semyakin

Keyword(s):

Anglo Saxon ◽

Legal Doctrine ◽

Public Interests ◽

Scientific Methods ◽

Balance Of Interests ◽

Private And Public ◽

General Scientific ◽

Public Character ◽

Principle Of Proportionality ◽

Proportionality Principle

The subject of this research springs from the fact that the principle of proportionality is extremely under-researched in the Russian jurisprudence. The main goal is identifying the essence of the proportionality principle and its properties compared to the American “balance of interests” method. Methodology: general scientific methods – dialectic, historical, formal logic, analytical; specific scientific methods – formal dogmatic, historical and legal, comparative jurisprudence. The research method is the method of interpreting legal texts, generalizing and analyzing the practice. Key findings: 1. The essence of the European principle of proportionality is identified; 2. Social, historic & cultural and other sources of the proportionality principle are demonstrated; 3. A comparative analysis is performed for the European proportionality principle and the American “balance of interests” method; 4. A contrastive analysis of the Russian principle of balancing private and public interests vs. the European principle of proportionality is conducted; 5. Its interpretation in the Russian legal doctrine and features of its practical application are demonstrated. Conclusions: the European principle of proportionality and the American “balance of interests” method are essentially non-contradictory; the proportionality principle and the method of balancing interests are different in a number of features like methods of inquiry, but these differences are not paradigmatic by nature and are most probably caused by historical and cultural features and other traditions characteristic of the development of Romano-Germanic and Anglo-Saxon legal systems; both of the above methods of inquiry are closely interconnected and quite comparable, which can hardly yield methodology grounds for contrasting them to each other as completely different conceptual approaches; the purpose of imposing limitations on certain basic rights must have a very important public character; the principle of proportionality should only be applied in practice as a systemic whole of all its elements.

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THE ROLE OF LEGAL FICTIONS IN MODERN LAW ENFORCEMENT PRACTICE

Bulletin of Udmurt University. Series Economics and Law ◽

10.35634/2412-9593-2020-30-5-697-705 ◽

2020 ◽

Vol 30 (5) ◽

pp. 697-705

Author(s):

E.A. Аnchishina

Keyword(s):

Law Enforcement ◽

Practical Aspect ◽

Main Attention ◽

Protective Function ◽

Legal Fiction ◽

Legal Relationship ◽

Balance Of Interests ◽

The Russian Federation ◽

Legal Fictions

This article is devoted to defining the role of legal fictions in modern law enforcement practice. To do this, the author reveals the content of this category, paying attention to the absence of the need to consider fiction as something false and contrary to objective reality. Further, the author defines the meaning of legal fictions, conducting a detailed analysis of their main functions on the example of the civil legislation of the Russian Federation and the corresponding law enforcement practice. At the same time, its practical aspect is mainly studied. The main attention is paid to the protective function of legal fiction, the essence of which, as the author shows, is to restore violated rights and establish a balance of interests of the parties to the legal relationship, as well as to protect the rights of third parties. The features of this function are considered on the examples of the following fictions: fiction of the occurrence of a condition or non-occurrence of a condition; fiction of the presence of powers; fiction of non-conclusion of a contract. The author comes to the conclusion that fiction as a method of legal technique is used not only by the legislator, but also finds independent application in practice, which is reflected in the explanations of higher courts considered in this article.

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View on the Restoration of Procedural Terms from the Perspective of the Theory of Legal Interests

RUSSIAN JUSTICE ◽

10.37399/issn2072-909x.2020.12.26-31 ◽

2020 ◽

Vol 12 ◽

pp. 26-31

Author(s):

S. A. Burmistrova ◽

Keyword(s):

Law Enforcement ◽

System Analysis ◽

Legal Regulation ◽

General Nature ◽

Judicial Discretion ◽

Discretionary Power ◽

Legal Doctrine ◽

Civil Process ◽

Legal Method ◽

Balance Of Interests

The General nature of legal regulation inherent in law is inextricably linked to the problem of implementing the discretionary powers of the law enforcement officer, including the court, which in modern Russian legal doctrine is proposed to be solved from the position of two approaches: judicial discretion and individual regulation, both of which are characterized by the unwillingness to offer a mechanism for developing the only. The use of certain provisions of the theory of legal interests can contribute to the solution of this problem. Disclosure abstract methods to achieve balance of interests of participants of the procedure relations the article contributes to the study of the mechanism for enforcement decisions in the process of implementing the court's discretion in the field of restoration of procedural deadlines. The research was carried out on the basis of using the method of system analysis, logical methods, special legal method of cognition of the phenomena of legal validity based on certain provisions of the theory of legal interests in the civil process (types of legal interests according to the mechanism of implementation; methods for determining the balance of interests; law enforcement basis for resolving conflicts of legal interests). It is proved that in the process of implementing the discretionary power, the only correct law enforcement decision should be developed. This decision expresses the balance of interests of participants in procedural relations, achieved on the basis of principles of law in combination with moral and ethical categories. The effectiveness of the described approach is illustrated by examples from law enforcement practice.

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Some Aspects of Implementation of the Principle of Integrity in Consumer Lending: in Search for the Balance of Interests

Lex Russica ◽

10.17803/1729-5920.2021.174.5.028-037 ◽

2021 ◽

pp. 28-37

Author(s):

P. L. Likhter

Keyword(s):

Law Enforcement ◽

Main Attention ◽

Loan Contracts ◽

Freedom Of Contract ◽

Consumer Lending ◽

Lack Of Information ◽

Balance Of Interests ◽

Legal Model ◽

Structural Methods

Threats to consumer and social security in the conditions of imbalance of interests of parties under consumer loan contracts result in the necessity to adjust the current legislation. The significant increase in litigation between borrowers and lenders confirms the need to find new approaches to the regulation of the area in question. The aim of the research is to analyze the most common forms of unfair behavior of credit and microfinance organizations in the light of the implementation of fundamental principles of civil law. The main attention is paid to the determination of essential criteria of the principle of integrity. The paper provides for the comparison between different approaches to understanding its content in fundamental jurisprudence, the possibility of their implementation in law enforcement.The paper uses methods of legal model analysis, formal-legal and system-structural methods. Comparative analysis of the norms of current Russian and foreign legislation, as well as the method of law enforcement monitoring. It allows us to offer tools to restore the balance between the interests in execution of consumer loan contracts.According to the results of the study, the author compiles a list of characteristics of the principle of integrity with due regard to such factors as lack of information about a difficult financial situation of the borrower or other circumstances preventing the conclusion of a contract, the prohibition of the inclusion of asymmetric and arbitrary terms of the contract, mandatory consideration of public interest, etc. The listed elements of the criteria will contribute to the balance of interests of the parties in the antinomy of the principles of integrity and freedom of contract. The author makes the conclusion that it is expedient to include algorithms of implementation of fundamental principles of regulation in special laws, which will contribute to harmonization of interests of participants of civil legal relations in the field of consumer lending.

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Pyrotechnic Residues in Gunshot Residue Analysis

Proceedings, annual meeting, Electron Microscopy Society of America ◽

10.1017/s0424820100117649 ◽

1985 ◽

Vol 43 ◽

pp. 128-129

Author(s):

H. M. Sagara ◽

S. A. Schliebe ◽

M. C. Kong

Keyword(s):

Law Enforcement ◽

Residue Analysis ◽

Gunshot Residue ◽

Particle Analysis ◽

Dry Skin ◽

X Ray ◽

Skin Cells ◽

Smokeless Powder ◽

Carbon Coated ◽

Detailed List

Particle analysis by scanning electron microscopy with energy-dispersive x- ray analysis is one of the current methods used in crime laboratories to aid law enforcement in identifying individuals who have recently fired or handled a firearm. During the discharge of a firearm, the high pressure caused by the detonation of the cartridge materials forces a portion of the generated gases through leaks in the firing mechanism of the weapon. These gases contain residues of smokeless powder, primer mixture, and contributions from the projectile itself. The condensation of these hot gases form discrete, micrometer-sized particles, which can be collected, along with dry skin cells, salts, and other hand debris, from the hands of a shooter by a simple adhesive lift technique. The examination of the carbon-coated adhesive lifts consist of time consuming systematic searches for high contrast particles of spherical morphology with the characteristic elemental composition of antimony, barium and lead. A detailed list of the elemental compositions which match the criteria for gunshot residue are discussed in the Aerospace report.

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