scholarly journals The Subject Matter of the Lawsuit as a Feature Individualizing the Lawsuit

Lex Russica ◽  
2021 ◽  
pp. 61-72
Author(s):  
V. N. Ivakin
Keyword(s):  
Subject Matter ◽  
Point Of View ◽  
Legitimate Interest ◽  
Legal Relationship ◽  
The Subject ◽  
The Law ◽  
Definition Of ◽  
The Right ◽  
Substantive Law

The question concerning the concept of the subject matter of the claim, which is one of the features that individualize the claim, is one of the most disputable and unsettled in the doctrine devoted to the claim. A number of legal scholars define the subject matter of the lawsuit as the substantive law claim of the plaintiff against the defendant. However, this definition cannot be accepted as correct, since, first, petitioners bring claims that cannot meet the above requirement (for example, claims for recognizing transactions as invalid), and, second, the statements of claim filed with the court contain demand (request) for the court, rather than a claim against the defendant.According to another point of view, the subject matter of the claim should be understood as the subjective right indicated by the plaintiff and the corresponding obligation or civil legal relationship in general, about which the court must make a decision. It is also impossible to agree with the above definition of the subject matter of the lawsuit in view of the fact that, as A. A. Dobrovolsky correctly noted, the law provides that the statement of claim must indicate the plaintiff’s claim rather than the disputed legal relationship. We should also agree with the argument given by G. L. Osokina, according to which the logic and practice of the statement of claim for the defense dictate the need to include a subjective right or legitimate interest in the basis of the claim, and not in its subject matter. According to the point of view of K. S. Yudelson, the subject matter of the claim is the requirement to the court to protect the right in the form that corresponds to the stated requirement. However, since this definition is too general, it cannot be used to resolve the issue of the equivalence of claims. The definition of the subject matter of the claim as protection (V.N.Scheglov) or a method of protecting the right (G.L. Osokina) also have the similar drawback. The most correct is the definition of the subject matter of the claim as the protection of a subjective right, freedom or legitimate interest through the specific application of one of the methods provided for by law or the direct exercise of the right that the plaintiff asks the court about.

Subjective Point of View of a Student on Ways of Subject Matter Structure Creation by the Teacher

2015 ◽  
Vol 5 (2) ◽  
pp. 148-171
Author(s):  
Denisa Gunišová ◽  
Jana Duchovičová
Keyword(s):  
Subject Matter ◽  
Point Of View ◽  
Subjective Perception ◽  
Cognitive Frames ◽  
Teacher Work ◽  
Approach To Teaching ◽  
The Subject ◽  
Definition Of ◽  
Level Of Understanding ◽  
Education Process

Authors in this contribution focus on issue of subject matter structure creation by the teacher as an important psycho-didactic domain of education process and how does a student perceive this structure. The aim of the teacher is not only to impart the knowledge to students but also to show them and teach them possible ways of how to understand the subject matter better and how to get to the fundamentals of it. Based on the structure of subject matter created by the teacher a student creates cognitive frames which become basis for his further learning. We pay attention to definition of epistemology of subject matter structure, questions of psycho-didactic approach to teaching, creating structure of subject matter and how does the teacher work with the text. Empirical part of the contribution investigates teachers' preferences of subject matter structure and statistically describes subjective perception of level of understanding of the subject matter by a student influenced by the particular subject matter structure realized by the teacher.

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 Prawo do opieki dyplomatycznej i konsularnej – przyczynek do rozważań w świetle standardu międzynarodowego

2019 ◽  
pp. 143-162
Author(s):  
Krzysztof Kozłowski
Keyword(s):  
International Law ◽  
Host Country ◽  
Standard Of Care ◽  
Point Of View ◽  
Legal Standard ◽  
The Subject ◽  
Definition Of ◽  
The Individual ◽  
The Right ◽  
Subjective Rights

This article aims at analyzing the right to diplomatic and consular protection in the context of the standard resulting from international law. It tries to give a definition of this institution, pointing to its public and subsidiary nature. It also points out that diplomatic and consular assistance is carried out in a situation of conflict between the interests of the individual and the country of origin, and that of the host country. The article also discusses the subject and subject matter of consular and diplomatic care.                 Moreover, the study comments on the specific features of this right from the point of view of the complexity and effectiveness of the protection of rights at the international level. In this context it was pointed out that the right to diplomatic and consular protection is not a classic right, but can be considered as an instrument for the operation of other rights or freedoms. The right to consular and diplomatic care is devoid of homogeneous regulation, but also depends on the legal standard of care offered by the home state and must be within the limits set by the host country. The scope of its application may be related to any legal event that may occur when the entity is in a situation of contact with the legal system of the receiving state.                 The discussions under consideration highlighted the subsidiarity of the right to diplomatic and consular assistance for the exercise by the individual of his or her rights and freedoms. However, There is no complete protection standard in this respect, which is conducive to the lack of exhaustive regulation at the convention level, which, in extreme cases, can jeopardize the exercise by the individual of his or her subjective rights, that is to ensure its adequate protection standard in the territory of the host country.

scholarly journals Recognition of right as a way to protect liability rights

2019 ◽  
pp. 76-84
Author(s):  
A. S. Starovoytova
Keyword(s):  
Civil Rights ◽  
Subject Matter ◽  
Practical Application ◽  
Legal Relationship ◽  
The Subject ◽  
The Right

The article substantiates the conclusion that recognition of the right is a universal way of protection of civil rights. This method of protection can be applied to liability rights. The article reveals the practical application of recognition of right as a way of protecting liability rights. The author states that the requirement to recognize the contract as concluded is a claim to recognize the obligations legal relationship. The structures similar to the recognition of liability rights are analyzed and the conclusion that such requirements are not claims for recognition, but are claims for award is reasoned. Claims for recognition of obligations are recommended to be divided into positive and negative. Particular attention is given to the legal design of the claim on recognition of obligations rights. In particular, the issues of the subject of the claim, its subjects, the conditions of presentation and satisfaction of the claim were considered. The claim for recognition of the right of obligation in its subject matter should be qualified as a requirement for confirmation of legal relationship.

scholarly journals The law applicable to objective arbitrability: 'Lex fori', 'lex arbitri' and their alternatives

2021 ◽  
Vol 59 (3) ◽  
pp. 397-422
Author(s):  
Stefan Jovanović
Keyword(s):  
New York ◽  
Subject Matter ◽  
Applicable Law ◽  
Uniform Solution ◽  
The Subject ◽  
The Law ◽  
Model Law ◽  
New York Convention ◽  
Definition Of ◽  
International Conventions

Bearing in mind that there is no uniform solution to the issue of arbitrability of the subject matter of a dispute in international conventions and the Model Law, as well as that different national legislations solve this issue in different ways, the great importance of correctly determining the applicable law for objective arbitrability is noticed. The paper first analyses the lex fori and lex arbitri as classic points of attachment, and then their alternatives such as the lex causae for contract, the place of potential enforcement of the award and the law applicable to the material validity of the arbitration agreement, as well as the proposal to abandon the collision technique. After concluding that for several reasons it is inadequate to apply the law applicable to the arbitration agreement to this issue, and that it is still early to consider that there is an autonomous notion of arbitrability from the New York Convention, the author recognizes that the definition of objective arbitrability encompasses several aspects. Accordingly, for each of them it is necessary to determine separately the applicable law.

A plea for rationality in the law of murder

Legal Studies ◽  
1990 ◽  
Vol 10 (3) ◽  
pp. 307-324 ◽  
Author(s):  
William Wilson
Keyword(s):  
Risk Taking ◽  
The Subject ◽  
The Law ◽  
Definition Of ◽  
The Right ◽  
Dividing Line

It is generally agreed that the law of murder is in need of reform. The scope of the reform necessary has however become the subject of increasingly robust debate. The retreat from Hyam, it has been argued, leaves us with a law of murder which is both too wide and too narrow to justify the continued bifurcation of murder and manslaughter. believe this objection to be justified but consider equally that the substantive aims of a two-tiered law of homicide are not, as some believe, incompatible with doctrinal rationality. The task of criminal lawyers therefore must be to attempt to effect the necessary reconciliation of substance with form. I shall argue that central to this enterprise is the maintenance of the dividing line between intentional and reckless killings but that a definition of intention must be adopted which incorporates certain categories of risk-taking. As the definition now stands, the wrong categories are incorporated at the expense of the right ones.

A Spanish Play on the Battle of Pavia (1525)

PMLA ◽  
1930 ◽  
Vol 45 (2) ◽  
pp. 516-531
Author(s):  
Joseph E. Gillet
Keyword(s):  
Subject Matter ◽  
Point Of View ◽  
Title Page ◽  
The Other ◽  
External Appearance ◽  
Left Group ◽  
The Subject ◽  
The Right ◽  
A Performance

The invasion of Italy by Charles VIII in 1494 became, shortly after, the subject of an égloga by Francisco de Madrid, and the peace of Cambray in 1529, which, it was fondly hoped, would end the Franco-Spanish wars in Italy, was celebrated dramatically by Hernán López de Yanguas. The battle of Pavia (Feb. 24, 1525), falling between these two events and marking the culmination of the struggle, is discussed, from the Spanish point of view, naturally, in the present little play which has not thus far been noticed by the students of early Spanish drama. Like the other two it is a festival-play, combining with a political preoccupation the bucolic tone of the dramatic égloga, a type of which the origin may well be the fifth égloga of Juan del Encina “adonde se introducen cuatro pastores, . . . . y primero Beneito entró en la sala adonde el Duque y Duquesa estaban, y comenzó mucho á dolerse y acuitarse porque se sonaba que el Duque, su señor, se habia de partir á la guerra de Francia; . . . . y despues llamaron á Pedruelo, el cual les dió nuevas de paz. . . . .” The play is short, however, and although possibly intended for a performance or actually performed, it is close, both in subject-matter and external appearance, to the news-sheets in ballad-form which were fairly common at the time. The print which is here reproduced formerly belonged to D. Pascual de Gayangos, and is now in the Biblioteca Nacional, in Madrid. It seems to have been mentioned only by Gallardo. On its title-page a vignette represents a battle fought under massive city- or castle-walls by knights in full armour, on foot, some wielding swords, some daggers, several carrying shields, one of which, on the right, is painted with a large human countenance. In the left group of four warriors one has already fallen, pierced by a sword. Behind the right group of three may be distinguished a throng of helmeted figures in a thicket of tall lances.

scholarly journals The Legal Nature of Public Service Disputes concerning the Legality of Imposition of Disciplinary Sanctions

Lex Russica ◽  
2021 ◽  
pp. 21-31
Author(s):  
E. L. Leshchina
Keyword(s):  
Public Service ◽  
Subject Matter ◽  
The Public ◽  
Legal Relationship ◽  
Legal Nature ◽  
The Subject ◽  
Definition Of ◽  
Administrative Proceedings ◽  
Process Structure

The paper examines the concept of a public service dispute as a type of a legal conflict, as a protective legal relationship and a juridical procedural activity. The author analyzes the modern terminology of a public service dispute enshrined in the legislation regulating public service, identifies the shortcomings of legal definitions. The author establishes and describes the mechanisms for the consideration of public service disputes provided for by the legislation.The main approaches to the definition of a public service dispute are analyzed. The author has highlighted its features as a complex protective legal relationship. The author shows the erroneous identification by some researchers of labor and public service relations and approaches to their determination of the legal nature of public service disputes, including the legality of the application of disciplinary sanctions. It has been substantiated that the legal nature of public service disputes in the civil service system is primarily determined by the content of the relations that underlie their occurrence—public service legal relations—and not by the forms of their consideration, which allows the possibility of applying labor and civil procedural legislation to disputed legal relations.The author defines a public service dispute and an official conflict, describes the signs of a public service dispute on the legality of the imposition of a disciplinary sanction, qualifies the subject matter of the dispute under consideration—substantive legal requirements (disagreements) of the parties that act as an element of the connection between the substantive legal relationship between the parties to the dispute and the procedure applied for the dispute consideration. It has been substantiated that the public service dispute consideration concerning the legality of imposing a disciplinary sanction, termination of a public service contract constitutes a type of law enforcement procedural activity that has its own basis, subject matter, goals, elements, procedural forms and stages, types of decisions, which makes it possible to single out such disputes as one of the administrative proceedings included in the administrative process structure.

scholarly journals Domestic Philosophy of Law as an Ideological Prerequisite of a Philosophical Type of Understanding of Law

2019 ◽  
Vol 2 (3) ◽  
pp. 51-67
Author(s):  
Vladimir Valentinovich Kozhevnikov ◽  
Anastasia Evgenievna Cherednichenko
Keyword(s):  
Social Sciences ◽  
Subject Area ◽  
Point Of View ◽  
Scientific Article ◽  
Russian Scientist ◽  
The Status ◽  
The Subject ◽  
Scientific Nature ◽  
The Law ◽  
The Right

This scientific article is based on the analysis of some,           from our point of view, basic provisions of the textbook for masters by the famous Russian scientist, professor Martysciin Orestes Vladimirovich "Philosophy of the law". The purpose of the article is to prove scientific character the Philosophy of the Law against the background of the contrary statements of philosophers and lawyers-theorists about its not scientific nature; to consider Philosophy of the Law as an ideological prerequisite of philosophical type of understanding of the right and to analyses the last. For the achievement of this purpose the following tasks were set: 1) to analyses various arguments of the scientists who are not recognizing the scientific nature of Philosophy of the Law, considering it as a method of the human relation to the world; 2) to consider views of the scientists giving to the Philosophies of the Law the status of science; 3) to show features of philosophical type to which it is not given in science of due attention; 4) to critically evaluate positions of those scientists who unreasonably identify moral (natural and legal) and philosophical types of understanding of the law; 5) to show distinction of moral (natural and legal) and philosophical types of understanding of the law. The result of the article's research are the provisions: 1) the legal philosophy is to be considered as the independent science having the subject, methodology, performing the specific functions, corresponding to other both legal, and social sciences; 2) the Philosophy of the Law is an ideological prerequisite of philosophical type of understanding of the law which defines the sphere or border of a measure of freedom of the person. In conclusion it is to emphasize that joint efforts of lawyers, philosophers, representatives of other social sciences concerning this subject area and a subject matter are necessary for overcoming the existing disagreements on the matters of principle concerning Philosophy of the Law, and for the decision, arising in the course of its development and improvement of problems.

scholarly journals Team of Co-Owners as a Subject of the Right to Joint Shared Property

2019 ◽  
pp. 49-56
Author(s):  
A. V. Zarubin
Keyword(s):  
Property Rights ◽  
Civil Law ◽  
General Rule ◽  
Point Of View ◽  
Actual Situation ◽  
The Subject ◽  
Shared Property ◽  
Definition Of ◽  
The Right ◽  
Joint Property

The author focuses on the similarity between relations of joint shared property and corporate relations, and proposes a “collective (a team of co-ownwers)” concept of joint property rights that is designed to solve the main problems of relations in question, including the definition of the subject of the right to joint shared property. From the point of view of the “collective” concept, the right to joint property is uniform. If the ownership of individual participants was extended to the whole thing, everyone’s will would be decisive in determining the fate of the thing, but the actual situation is not like this. In addition, possession is an external manifestation of ownership. At the same time, none of co-owners has the opportunity to appropriate the whole thing or even its part. He has only the right to claim possession. The general rule applies to the thing that is the object of the right to joint property. The right to joint property belongs to the team of co-owners as a non-entity community. There is no contradiction in the fact that the right belongs to an unauthorized association (a non-entity community), since the right can be attributed to the person whose will and domination is recognized by law, even if the law denies it as the subject (participant) of civil law relations.

Sign in / Sign up

Export Citation Format

Share Document