scholarly journals REGULARITIES AS A SUBJECT OF SCIENCE OF EXECUTIVE PROCESS

2021 ◽  
pp. 116-123
Author(s):  
S. Shcherbak ◽  
Keyword(s):  
Scientific Development ◽  
Court Decisions ◽  
Legal Tradition ◽  
Stage Of Development ◽  
Natural Connection ◽  
Legal Science ◽  
Executive Process ◽  
Process Characterization ◽  
The Subject ◽  
The Law

The article analyzes the existing positions of scientists of general theoretical jurisprudence on legal laws as a fundamental and rather complex scientific category, which is undeservedly "forgotten" in our time, the interest in which is determined by the needs of practice and the essence of scientific knowledge. Based on the conceptual principles of general theoretical science, the branch concept of regularities as a subject of science of executive process is offered, taking into account the necessity of development of doctrinal provisions of science of executive process. It is proved that the formation and formation of the science of the executive process is ahead of the emergence of the relevant branch of law; the place of the executive process in the legal system continues to be considered, because the process of forming the branch of law must be complex and long and thus requires justification and awareness. The essence and features of legal regularities in the general theory of law are revealed, and also their display and value in the course of execution of judicial decisions and decisions of other bodies are defined; such regularities as a subject of science of executive process are specified. It has been clarified that the decisions and decisions of other bodies, have natural connections and relations concerning: creation, actions and improvement of the legislation regulating process of execution of court decisions and decisions of other bodies; practices of application of executive procedural norms (including rules of law enforcement in typical situations, overcoming gaps); use of historical experience of execution of court decisions and decisions of other bodies; use of foreign experience of enforcement of decisions of jurisdictional bodies; the provisions of international legal acts on enforcement (expediency of harmonization and implementation, which will require changes to national legislation); methodological problems of the science of the executive process. Characterization and classification of branch regularities, depending on criterion of sphere of action in science, of executive process on five kinds are given among which are: natural connection of the simplest phenomena – the executive document, executive procedural legal relations, executive actions; natural connection of complex phenomena, such as the system of executive procedural legislation, the model of the executive process, the methodology of the executive process; regularities inherent in the executive process as a whole (principles of the executive process, stages of the executive process, subjects of the executive process); the natural connection of the executive process with the economy, sociology and other social spheres. An assessment of new regular connections that arises in the modern executive process, taking into account the signs of dynamic patterns and examples of transformation of patterns that were manifested in the Soviet times and operate in modern times, in particular, fundamental regularities, (which are succession in law, the stability of the legal tradition), and the objective need for formal certainty in law are fragmentarily outlined in the example of the science of executive process, because the executive process was separated from the science of civil procedure and did not absorb its succession, but caused new, its own patterns, which arose simultaneously with the new phenomenon of legal life, and thus acquired a set of legal relations that are not embodied with justice (while the modern prototype of the executive process is associated "with a drone and tow truck", not with Themis, the goddess of justice). In turn, the subject of the science of executive process is proposed to understand the objectively determined, constant, necessary, and causal links that provide knowledge of the process of execution of court decisions and decisions of other bodies as a legal phenomenon, as well as reflect its deep, essential properties. The architecture of the subject of science should be determined primarily by the structure of the relevant law, in this case by the Law of Ukraine "On Enforcement", a significant disadvantage of which is the systematic revision and reformatting of its provisions by adopting the law or its new Version changes simultaneously the conceptual bases of activity of executors and considerably complicates formation of theoretical bases of executive process. It is substantiated, that coincidences, provided that they are repeated, can become a trend, and trends, in turn, can grow into a pattern. The importance of regularities lies in the fact that they are not only the subject of science of the executive process, but also have methodological significance for the executive process as a young branch of legal science, because it is on the basis of regularities that basic scientific provisions become especially relevant in the emergence and development of new branches of legal science. The paper identifies existing trends such as anthropologization, globalization and deformation and reveals them on the example of the executive process; it outlines the content of coincidences in the science of executive process. The need for further scientific development of both the actual legal laws and industry laws of the science of the executive. Process is predicted, taking into account the immensity of the category of laws and giving to it the weight at the present stage of development of the science of the executive process.

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

scholarly journals Operational and Intelligence Activities of the Law Enforcement Agencies in the System of Ensuring National Security

2021 ◽  
Vol 108 ◽  
pp. 03017
Author(s):  
Alexander Ivanovich Melikhov ◽  
Gennady Svyatoslavovich Pratsko ◽  
Victoria Aleksandrovna Chistova ◽  
Olga Dmitrievna Tyutyunik ◽  
Olga Aleksandrovna Nenakhova
Keyword(s):  
Law Enforcement ◽  
National Security ◽  
Legal Aspects ◽  
Information Support ◽  
Scientific Development ◽  
Russian Society ◽  
Law Enforcement Agencies ◽  
Stage Of Development ◽  
Human Need ◽  
The Law

The transition to the postmodern stage of development of Russian society, by the subsequent change of the system of civilizational values, required the scientific development of a new attitude to security as a basic human need with regard to changing the nature of traditional threats and interests and the emergence of completely new ones. The process of globalization being developed in the information age weakens traditional state institutions and requires a new look at national security not only as a category of foreign policy and military matters but also as an internal problem solved through operational and intelligence activities. The purpose of the study was to identify the current problems in the theory of national security by means of an analysis of scientific studies of the phenomenon of security in Russia; to consider security as a function and feature of the social system; to consider the Operational and intelligence activities of the law enforcement agencies as a mean for ensuring national security; to identify the conditions and factors of operational and intelligence activities that negatively affect the effectiveness of ensuring national security. In the course of the research, using computer indexing, about 1300 scientific, educational and methodological sources on national security and internal affairs issues have been processed and analyzed in the semantic, philosophical and legal aspects. The study examines modern theoretical and practical problems of ensuring national security as part of operational and intelligence activities of the law enforcement agencies. Operational and intelligence activities is considered in the national security system as a means of its information support, as well as as a tool for combating criminal, military and other threats. For the first time, considered are the conditions and factors of the operational and intelligence activities that negatively affect the effectiveness of ensuring national security.

scholarly journals methodological conflict between theory and philosophy of law

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Sergey S. Shestopal ◽  
Elena A. Kazachanskaya ◽  
Svetlana V. Kachurova ◽  
Evgeniy V. Kachurov
Keyword(s):  
Modern Philosophy ◽  
Ontological Status ◽  
Philosophy Of Law ◽  
Legal Science ◽  
Scientific Disciplines ◽  
The Subject ◽  
The Law ◽  
Theory Of Law

The subject of this research is the recently intensified competition in modern jurisprudence of two equally respectable scientific disciplines: philosophy of law and theory of law. The goal is to demarcate the meaning of these concepts. Their ontological status (essential significance) in relation to the existence of the law, the reflection of which they are, is also considered. Based on analysis of the existential criticism of the dominant forms of modern ideology, it is proved that the existing theories of law depend on these forms. A stable tendency in modern philosophy to return legal science to the origins of philosophical knowledge of legal reality is stated.

scholarly journals FORMALISM IN ROMAN CONTRACT LAW

2019 ◽  
Vol 34 (5) ◽  
pp. 1457-1463
Author(s):  
Shpresa Alimi-Memedi
Keyword(s):  
Developmental Stages ◽  
Essential Element ◽  
Contract Law ◽  
Roman Law ◽  
Legal Principles ◽  
Stage Of Development ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Accepted Form

The certain mode of production conditions certain legal expressions, determines the character and the forms of expression of the law, and depending on this, certain legal institutes and legal principles arise and change. The principle of formalism in a certain period of development of contractual relations is nothing but an expression of certain socioeconomic and other conditions present in that period. The subject of this paper is the principle of formalism as a feature of Roman contract law, the emergent forms of formalism in Roman law, the causes and functions of formalism in certain stage of development of Roman law. The influence of religion on the law and the low level of development of socioeconomic relations were the main reasons for the recognition of formalism in the first legal systems.The principle of formalism implies that the form of the contract as a means of expressing the consent of the will of the parties is a legally established imperative. The specific way of expressing the will to conclude a contract is an essential element of the contract. Infringement of the form is sanctioned by the nullity of the agreement.Formalism in Roman contract law is present and dominant in the period of the early Roman state and law, the late Roman Republic and pre-classical Roman law. The principle of formalism in these developmental stages of the Roman state and law does not mean that it excludes completely the opposite principle of consensualism which implies that contracts are created by a mere consent of the will of the contracting parties, which can be expressed in words or in writing, or with other behavior from which its existence can certainly be concluded. In Roman law, the consensual form has never succeeded in becoming a generally accepted form and Roman law has never formulated the general principle of consensuality.

scholarly journals THE SUBJECT AREA OF INFORMATIZATION OF COURT DECISIONS

2021 ◽  
pp. 462-487
Author(s):  
S. B. Polyakov ◽  
◽  
I. A. Gilev ◽  
Keyword(s):  
Information Technology ◽  
Law Enforcement ◽  
Object Oriented ◽  
Law Enforcement Officers ◽  
Subject Area ◽  
Object Oriented Programming ◽  
Court Decisions ◽  
Legal Method ◽  
The Subject ◽  
The Law

Introduction: we have created an information technology support program, named ‘LaserIP-GPK-2020’, designed to provide assistance in making reasoned court decisions according to the rules of the Civil Procedure Code of the Russian Federation in ordinary proceedings. With the help of this program, we demonstrate in the paper the complexity of the law enforcement process for a person and the assistance that software can provide to overcome this complexity. The paper shows the subject area of the information system created by us, outlines the ways of further enhancement of software intended to facilitate law enforcement, and challenges the myths about the robot judge. Purpose: to determine the possible types of software to be developed in accordance with the types of law enforcement operations, provided that the discretion function remains with law enforcement officers; to determine the directions of the formalization of law enforcement operations and the possibilities of gradual transfer of some of them to artificial intelligence. Methods: the universal dialectical-materialistic method, employed when converting the law enforcement process into the language of information technology; analysis and synthesis of the law enforcement process, the formal-legal method – for converting the requirements of law and legal science to law enforcement into software commands for the judge and the parties to the case; the object-oriented approach to modeling; the object-oriented programming methodology, a relational approach to database design. Results: the ‘Laser-IPGPK-2020’ computer program contains a sequence of law enforcement operations and rules for their execution, the multiplicity and complexity of which exceeds the capabilities of most law enforcement officers. This program is designed to prevent law enforcement errors resulting from the limited human capabilities with regard to retaining knowledge of the multitude of rules of law enforcement operations, and to obviate the expenditure of time required for each individual judge to solely produce a reasoned decision in a case. Conclusion: the selection and development of particular IT solutions to be applied in law enforcement practice when solving legal cases are determined by the analysis of the law enforcement process, which is the subject area of the program.

scholarly journals Novels and Innovations in law: concept and correlation

2021 ◽  
pp. 1-14
Author(s):  
Mikhail Yur'evich Osipov
Keyword(s):  
Legal System ◽  
Legal Process ◽  
Legal Norms ◽  
Legal Science ◽  
Improper Use ◽  
The Subject ◽  
The Law ◽  
Form Of Expression

Correlation between the concepts of “novel” and “innovation” in law is one of the topical problems faced by the modern legal science. Its relevance is substantiated by the fact that the improper use of one or another term in legal science (for example, the term "”innovation” instead of the term “novel” may lead to misperception and complicate the research of these legal phenomena. The goal consists in establishing correlation between the concepts of “novel” and “innovation”, as well as the criteria for their classification based on the analysis of the essence of these two concepts. The subject of this article is such principles of the novels and innovations in the legal system that impact the characteristics of these legal phenomena. In the course of research, it was determined that law incorporates both, novels and innovations, which should not be confused, and correlate with each other as a whole (legal novels) and as a part (legal innovations). The article provides classification of legal novels and legal innovations in accordance to various criteria, namely depending on the type of legal process, form of expression (of novels and innovations in law) and (legal novels and innovations). The latter are distinguished by the fact that they are reflected in the legal norms. At the same time, innovations in the law and legal system imply the fundamentally new and (or) significantly improved processes that take place in the legal system, as well as their results. Novelties, in turn, imply any amendments to the law and the legal system.

scholarly journals The dispute about law in urgent administrative cases at the appeal of the bodies of revenue and fees

2019 ◽  
pp. 85-90
Author(s):  
O.V Skochylias-Pavliv ◽  
N.V. Lesko
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Legal Definition ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
Definition Of ◽  
Judicial Procedure ◽  
Administrative Proceedings

The article deals with current issues related to the procedure of consideration and resolution of urgent administrative cases at the appeal of the bodies of revenue and fees. The peculiarities of the specified category of cases which are manifested in the urgency; subject composition; notification of the participants of the case on the date, time and place of the case; filing of the claim; calculation of procedural terms; announcement and service of court decisions; appeal and cassation appeal; the court fee are analyzed. It is noted that the statements of the case are a statement of claim, reaction a statement of claim, a response to a reaction, a protest, a third party’s explanation of the statement claim, or reaction a statement of claim. The form of the appeal of tax authorities to the administrative court is a claim. Obviously, that is why in these categories of cases there are often misunderstandings regarding the payment of court fees as evidenced by a large number of decisions on leaving without motion the claim of bodies of revenue and fees on the ground of failure to submit to the court a document on payment of court fees. Central to the article is the consideration of the issue of understanding of the dispute about law as one of the grounds for refusing to open proceedings at the appeal of the bodies of revenue and fees. The only form of administrative proceedings is the consideration of the case on the statement of claim. As is well known, a lawsuit involves conflict between the parties. The mutual rights and obligations of the parties to prove their claims and objections constitute the substance of the dispute. However, the peculiarities of disputes at the request of the bodies of revenue and fees due to the fact that they don’t have a dispute about the law. It is noted that there is no legal definition of the term «dispute about the law», which significantly complicates the consideration and resolution of this category of cases. The interpretation of this concept exists only in judicial practice, in particular in resolutions of the Supreme Court but they are also contradictory. That’s why we consider it necessary to supplement article 283 Code of Administrative Proceedings of Ukraine a note defining the concept of «dispute about the law», which should be understood as a claim of the taxpayer to the tax authority regardless of the subject of the claim which may be submitted to administrative or judicial procedure. Keywords: a dispute about law, administrative proceedings, administrative case, revenue, and fees, claim.

scholarly journals Legal science: development problems in the context of modern value and ideological realities.

2021 ◽  
pp. 89-98
Author(s):  
Sergiy Sunegin
Keyword(s):  
Public Life ◽  
Legal Knowledge ◽  
Liberal Democratic ◽  
Stage Of Development ◽  
Legal Science ◽  
The Social ◽  
Conceptual Problems ◽  
The Law ◽  
Current Stage

Introduction. The article investigates conceptual problems of legal science in modern values and ideological realities. The originality of the current stage of development of legal science in the context of global affirmation of liberal-democratic values of public life is manifested not only in the fact that the relevant political and legal phenomena are studied today taking into account the dominance of liberal values in democratic societies, that is, in the context of their relationship, interaction and interdependence with such values (for example, individual rights and freedoms, rule of law, free enterprise, private property, etc.). The aim of the article. The purpose of the article is to determine the conceptual problems of the development of legal science in the prevailing of modern value-ideological realities. Results. In our opinion, the main feature of the development of legal science in the context of the establishment of liberalism as a global ideology, which has unconditional supremacy over any other ideologies and their concepts, is that modern legal doctrine is increasingly detached from the deep philosophical, ideological, moral and religious ideas and principles aimed at ensuring the normal arrangement of relations in society. Thus, modern legal science gradually acquires the quality of a kind of «thing in itself», closed to the study of external forms of political and law phenomena regardless of their internal deep essence, complex nature, essential relationship and interdependence with other social phenomena that perform normative-and-organizing influence on society and citizens. As a result, modern legal science is gradually moving away from its main purpose - the search for true knowledge about the relevant state and legal phenomena, determining their objective nature, social purpose and objectives, and so on. Instead, legal knowledge today is either purposefully differentiated (fragmented) in different directions, which can provide mostly purely theoretical novelty, or serves as a justification for endless social and government reforms, the constant implementation of which, as practice shows, does not lead to any significant positive social changes or achieving high quality of law and order in the state. The liberal-democratic model of law, which is based on the idea that law itself is the most effective means of ensuring civilized relations between people, is usually actively substantiated by modern legal science. At the same time, such justification is usually carried out outside the context of the complex social nature of law, its objective relationship and interdependence with other equally important social regulators, its subjective perception by participants in public relations, in whose actions it is practically implemented. Of course, it should be agreed that the law is a mandatory and necessary attribute of the civilized life of any society, but its effectiveness depends, in particular, on the extent to which it and especially the mandatory, formally defined rules of law take into account relevant social laws. Conclusions. One of the main features of the current stage of development of legal science is a kind of entropy of doctrinal legal knowledge, which is expressed in the accumulation of uncertainty in the development of objects that are studied. At the same time, such uncertainty is associated with the loss of the necessary and at the same time essential relationship of legal science with the social laws of normal organization of public life and the transformation of science into a purely private matter, in which each researcher has the right to substantiate any ideas and concepts without taking into account the social experience of past generations. Legal science is only when it explores the relevant phenomena and processes, taking into account social laws or patterns of social life, that is, taking into account certain dependencies and reproducibilities. Legal science, like any other field of scientific knowledge, needs to record its best and most optimal results, which can be obtained only if in the process of doctrinal research the researcher takes into account objectively functioning social laws, including the law of social inheritance. These formally recorded results must be taken into account in the process of implementing public policy in the relevant field or sphere of life and reforming certain state and law institutions.

scholarly journals ACCESS TO JUSTICE

2020 ◽  
Vol 23 (45) ◽  
pp. 177-192
Author(s):  
Paulo Marcio Cruz ◽  
Bruno Makowiecky Salles
Keyword(s):  
Access To Justice ◽  
Proper Understanding ◽  
Stage Of Development ◽  
Legal Science ◽  
The Subject ◽  
The Universe

What should be understood, contemporaneously, by Access to Justice? This paper addresses the challenge of answering this question by describing the main elements that portray the stage of development of the theme in Legal Science. With no pretension to exhaust the subject, considering its scope and complexity, we seek to situate Access to Justice in the contemporary scene and present the approaches commonly attributed to it, providing the methodological and terminological clarifications necessary for a proper understanding. In this context, considerations are made about perspectives classified as legal-procedural and democratic-institutional, as well as the conceptions, included in the universe of Access to Justice (lato sensu), Access to the Judiciary and Access to Rights.

scholarly journals References to Common Law in the Reasons for Judgments by Polish Courts

2020 ◽  
Vol 40 (1) ◽  
pp. 131-161
Author(s):  
Grzegorz Maroń
Keyword(s):  
Comparative Studies ◽  
Common Law ◽  
Law System ◽  
Legal Science ◽  
Qualitative Nature ◽  
The Subject ◽  
The Law ◽  
The Given

The article presents the results of a study of the reasons for rulings of the Polish courts in terms of the presence in them of references to common law. The analysis of the title issue is mainly of a qualitative nature with descriptive, systematic, and explanatory features. The research has focused on determining the functions played by the references to common law in judgments and on recognizing the factors that rule or causally explain the practice of the courts referring to the given law system in their decisions. Some general regularities characterizing the discussed phenomenon have also been shown. Furthermore, quantitative findings on the scale, intensity, and dynamics of the references to common law in the reasons for judgments have been presented. Common law, which until now has been the subject of comparative studies of the Polish legal science, is increasingly drawing attention of the Polish courts as the law-applying bodies.

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