scholarly journals Abuse Issue in Labor Relations

2021 ◽  
Vol 16 (11) ◽  
pp. 133-141
Author(s):  
A. A. Luzik
Keyword(s):  
Law Enforcement ◽  
Labor Relations ◽  
Labor Law ◽  
Abuse Of Power ◽  
Legal Norms ◽  
Domestic Science ◽  
Judicial Practice ◽  
Type Of Abuse ◽  
The Law ◽  
Abuse Of Law

Based on an analysis of the provisions of the legislation, the law enforcement acts of the courts, the  essence of the legal phenomenon of abuse, as well as the problems associated with the application of provisions on abuse of law in the field of labor legal relations, are investigated. Based on examples from judicial practice, the  paper substantiates the absence of a formally defined approach to the application of the principle of inadmissibility  of abuse, as well as its superficial understanding. The paper reveals the issues of theoretical heterogeneity of the  intersectoral concept of abuse of law in domestic science, as well as the understanding of the concept of "abuse"  and its elements existing in the science of labor law. In addition, the possibility of highlighting this type of abuse  as abuse of power (opportunities) is being considered. The expediency of the development of an integrated cross[1] sectoral system of views and legal norms in relation to abuse in law is substantiated, giving answers to questions  about the place of abuse in the system of legal behavior, its means and the system of effective measures of  responsibility.

Hidden Labor Relations: Current Law-Making and Law Enforcement Issues

2020 ◽  
Vol 7 ◽  
pp. 57-68
Author(s):  
I. Yu. Voronov ◽  
Keyword(s):  
Law Enforcement ◽  
Labor Relations ◽  
Labor Law ◽  
Employment Relationship ◽  
Labor Rights ◽  
Labor Disputes ◽  
Judicial Practice ◽  
Legal Understanding ◽  
Civil Contract ◽  
Law Making

The article analyzes the positions of experts in the field of labor law regarding the nature and types of hidden labor relations from the positions of positivism and the scientifically based concept of integrative law understanding. The author criticizes the conclusions of experts based on a positivist legal understanding according to which an employment relationship arises on the basis of the reclassification of a civil contract into an employment contract or a civil relationship into an employment relationship. Based on the analysis of labor law norms, law enforcement practice in labor disputes and scientific points of view of experts in the field of labor law, which is based on a scientifically based concept of integrative law understanding, the author comes to the conclusion that hidden labor relations are a type of labor relations, have signs of labor relations, are common in the judicial practice of labor disputes and are the most urgent problem of Russian labor law. The author analyzes two modern types of hidden labor relations from the position of a scientifically based concept of integrative law understanding: the conclusion of civil contracts instead of labor contracts and the actual admission of an employee to work by the employer or with the knowledge or on behalf of the employer or its authorized representative in the case when the labor contract was not properly executed, within three days and later after the actual admission of the employee to work. The author analyzes the ways of protection of labor rights and legal interests in the field of labor from the position of a scientifically grounded concept of integrative law understanding and formulates law-making proposals for changing the norms of labor law.

Wage indexation as a means of ensuring that real wage levels are raised

2020 ◽  
pp. 40-47
Author(s):  
Е. A. Shapoval
Keyword(s):  
Real Wage ◽  
Labor Relations ◽  
Labor Law ◽  
The State ◽  
Judicial Practice ◽  
Wage Indexation ◽  
Definition Of

The article considers issues related to the state guarantee of ensuring an increase in the level of real wage content, the definition of the concept of “wage indexation”, the procedure for its implementation and the mechanisms for determining the amount based on the approaches developed in the science of labor law and judicial practice taking into account priorities in the field of social and labor relations.

scholarly journals Misconception on the Authority Abuse of Power in the Law Enforcement against Corruption

2017 ◽  
Vol 13 (9) ◽  
pp. 51
Author(s):  
Sadjijono Sadjijono ◽  
Bagus Teguh Santoso
Keyword(s):  
Law Enforcement ◽  
Good Governance ◽  
Government Officials ◽  
Legal Concept ◽  
Abuse Of Power ◽  
Government Administration ◽  
The Absolute ◽  
The Law ◽  
The Government ◽  
Administrative Jurisdiction

Law No. 30/ 2014 on Government Administration brings the strength and the averment on the performance of the governmental functions which include executive, legislative, and juridical in order to provide the public services (bestuurzorg). Such regulation also aims to prevent and to eliminate any kinds of the maladministration done by the government officials/organs in implementing their functions so that good governance can be realized. In implementing their function, the government should rely on the useful performance (doelmatigheid) and the effectiveness (doeltreffenhgeid) according to the norms of each authority. It is a sophism when the ‘authority’ and/or the ‘competence’ mentioned under the Law No. 30/ 2014 on Government Administration are defined differently in the letterlijk gramatikal wet without associating those terms with an understanding of bevoegheid in an administrative legal concept. An idea that distinctively defines the term ‘competence’ as a right and ‘authority’ as a power is considered as an inconsistent idea, which may cause dualism and distortion in the common law enforcement reffering to the administrative law, particularly related to the concept of the authority abuse of power mentioned under the Law No. 31/ 1999 amended by the Law No. 20/ 2001 on deeds against corruption. As the result, when the notion of ‘authority abuse of power’ is defined as a right (as mentioned in article 1, subsection 5 jo. article 17, Law No. 30/ 2014 on Government Administration), it will be characterized into the absolute competence of the administrative jurisdiction, and when the notion of ‘authority abuse of power’ is defined as a power (as mentioned in article 3, Law No. 31/ 1999 on deeds against corruption), it will be characterized into the absolute competence of the corruption-act jurisdiction. Meanwhile, implementing the government’s ‘competence’ and/or ‘authority’ is characterized into one concept based on the norms of the authority power.

scholarly journals ОПЕРАЦИЯЛЫҚ ІЗДЕУ ҚЫЗМЕТІНІҢ ЗАҢНАМАЛЫҚ РЕТТЕУЛЕРІН ЖАҚСАРТУ ЖОЛЫМЕН ҚЫЛМЫСҚА ҚАРСЫ КҮРЕС МӘСЕЛЕЛЕРІН ШЕШУ

2021 ◽  
pp. 163-169
Author(s):  
Ахметкали Шаймуханов
Keyword(s):  
Comparative Analysis ◽  
Law Enforcement ◽  
Legal Norms ◽  
Legal Literature ◽  
The Law ◽  
The Republic ◽  
Analysis And Study

В статье рассматриваются и анализируются некоторые положения действующего оперативно-розыскного законодательства Республики Казахстан. На основе сравнительного анализа и изучения юридической литературы поднимаются проблемы, возникающие в правоприменительной деятельности при реализации отдельных положений закона. Автором вносятся предложения и рекомендации по совершенствованию правовых норм, направленные на решение задач, связанных с профилактикой, предупреждением и пресечением наиболее опасных уголовных преступлений. Мақалада Қазақстан Республикасының қолданыстағы жедел-іздестіру заңнамасының кейбір ережелері талқыланып, талданған. Салыстырмалы талдау және заң әдебиеттерін зерттеу негізінде заңның белгілі бір ережелерін жүзеге асыру кезінде құқық қорғау органдарында туындайтын проблемалар көтеріледі. Автор аса қауіпті қылмыстық құқық бұзушылықтардың алдын алуға, алдын алуға және жолын кесуге байланысты мәселелерді шешуге бағытталған құқықтық нормаларды жетілдіру бойынша ұсыныстар мен ұсыныстар енгізеді. The article discusses and analyzes some of the provisions of the current operational-search legislation of the Republic of Kazakhstan. Based on comparative analysis and study of legal literature, the problems arising in law enforcement activities in the implementation of certain provisions of the law are raised. The author makes suggestions and recommendations for improving legal norms aimed at solving problems related to the prevention, prevention and suppression of the most dangerous criminal offences.

Interstitial rules and the contested application of human rights law and the laws of war in counterterrorism

2016 ◽  
Vol 5 (2) ◽  
pp. 207-237 ◽  
Author(s):  
MICHAEL E. NEWELL
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
International Law ◽  
War On Terror ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Laws Of War ◽  
Legal Norms ◽  
Drone Strikes ◽  
The Law

Abstract:The laws of war and international human rights law (IHRL) overlap, often with competing obligations. When two or more areas of the law overlap, political agents attempt to address these areas of ambiguity with interstitial rules. However, a lack of consensus on interstitial rules can destabilise the law, leading to increased contestation of legal norms and principles. Such is the case for international law in counterterrorism. Prior to the 11 September 2001 attacks (9/11), international agreements and US domestic practices placed counterterrorism within the framework of law enforcement. After 9/11, the Bush Administration replaced law enforcement with armed conflict and the laws of war as the dominant paradigm for counterterrorism, but this decision, among other legal justifications in the War on Terror, has been contested by the international legal community. As IHRL still applies in law enforcement operations, international law in counterterrorism now sits within a contested overlap of IHRL and the laws of war. The contestation of US policies in the War on Terror, including the use of drone strikes in particular, is a product of this unresolved overlap and the lack of clear interstitial rules. Lacking these rules, US counterterrorism policies risk undermining the rule of law.

scholarly journals Role of the Plenum of Russian Supreme Court in the judicial practice formation

2022 ◽  
Vol 5 (4) ◽  
pp. 209-225
Author(s):  
Yu. S. Pestereva ◽  
I. G. Ragozina ◽  
E. I. Chekmezova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Complex Analysis ◽  
The Other ◽  
Judicial Discretion ◽  
Dialectical Theory ◽  
Judicial Practice ◽  
Other Hand ◽  
The Law

The subject. The article considers the role of the Plenum of Russian Supreme in forming judicial practice on the example of giving qualification to the crimes committed against sexual freedom and inviolability, as well as against property and public health.The objective of the article is to conduct a complex analysis of the function of the decisions, taken by the Plenum of Russian Supreme Court, in the formation of a unified vector of judicial practice. The authors dare to refute the hypothesis hat judicial practice can be recognized as a source of law.The methodological basis of the research is the dialectical theory of development and interrelation of phenomena. Historical, formal-logical, systematic methods of knowledge have been identified as relevant to the topic of the study.The main results, scope of application. The authors draw attention to the problem of evaluative features used in the process of law enforcement when interpreting the norms of the Special Part of the Criminal Code of the Russian Federation. A norm with such signs acquires an unformalized essence from the point of view of the boundaries of criminalization of a particular phenomenon. On the other hand, the nature of crimes is so diverse that without the flexibility of criminal law regulation (allowing the use of evaluative features), the application of the norm taking into account specific circumstances in a particular case may not be possible. The authors also consider issues related to the characteristics of the objective side, the end time of these crimes, the application of the formula of a single ongoing crime and its separation from related compounds. The process of law enforcement is based on such guidelines as the norms of law, judicial discretion, established judicial practice, the position of the Plenum of Russian Supreme Court. Attributing an explanatory role to the decisions of the Plenum of Russian Supreme Court does not completely eliminate the shortcomings inherent in legal technology. Correcting the current situation with the help of judicial discretion is not always justified, since this is possible only if there is a legitimate alternative. Assigning the status of a precedent to a judicial decision may lead to the substitution of the law by decisions taken in a particular case.Conclusions. The judicial practice concerning these issues is completely different. Despite the existence of similar situations, courts, as a rule, qualify an offense using various norms of the law, which negatively affects compliance with the principle of legality. The issue related to the function of the decisions of the Plenum of Russian Supreme Court in the formation of a single vector of judicial practice has been and remains debatable. The continued addition of new articles to criminal legislation, on the one hand, indicates the desire of the legislator to bring it to perfection, but, on the other hand, forms a mechanism for clarifying the rules of its application, which sometimes leads to their contradictory interpretation. At the same time, crime and punishment should be determined only by legislation.

scholarly journals General issues of the exercise of jurisdiction in the process of application of law enforcement measures at sea

2020 ◽  
pp. 106-118
Author(s):  
A. P. Glazova
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Research Process ◽  
The State ◽  
Customary Law ◽  
Research Approach ◽  
Legal Norms ◽  
Application Of Law ◽  
Territorial Jurisdiction ◽  
The Law

INTRODUCTION. Currently, states can apply a whole range of law enforcement measures at sea in order to prevent such unlawful phenomena as piracy, slave trade, drug trafficking, migrant smuggling, etc. However, the problem of the exercise of jurisdiction by states within various maritime areas is the main sticking point during the implementation of these measures. In an attempt to exercise the law enforcement function at sea, the state can't ignore the fact that its ability to create legal norms and ensure their effective implementation depends not only on its will as a sovereign, but also on the restrictions imposed by international law. Therefore, maintaining a balance between limiting the “territorialization” of maritime areas and the need to carry out a law enforcement function logically entails the need to determine the nature and content of the concept of “jurisdiction of the state” within different maritime areas, as well as to identify specific features of this legal category. The present article focuses on this and other related issues.MATERIALS AND METHODS. Historical and comparative analysis along with dogmatic research approach were used in the research process and the entire research is well grounded in focusing on the norms of international treaty law and customary law. In addition to that this research focuses on the norms of national law governing issues related to the application of law enforcement measurement at the sea. Apart from those given material and methodical inputs, the doctrinal works of the relevant jurists have been used in this research.RESEARCH RELULTS. The author comes to an alternative conclusion that territorial jurisdiction within the maritime territory is not absolute, which is due, apparently, the principle of freedom of the high seas which have a longer support by the international community. The definition of jurisdiction as extraterritorial is not self-sufficient, since in case of conflict of jurisdictions, additional legal criteria are required to resolve such a conflict. The classification of extraterritorial jurisdiction depending on the principles on which it is based also does not solve the problem, since some principles, such as protective or universal, in turn, require additional criteria in order to become a self-sufficient tool to overcome legal uncertainty. The author notes that the ability to exercise territorial jurisdiction within maritime areas, as a rule, determines the ability to exercise legislative and executive jurisdiction, which are also not absolute. The exercise of extraterritorial legislative or executive jurisdiction at sea is potentially permissible only on the basis of international law to solve a specific function, for example, law enforcement.DISCUSSION AND CONCLUSION. The main problem of the varieties of jurisdiction proposed by in- ternational legal science is that each of them only supplements each other, describing a possible choice, but not explaining why a particular choice should be preferred in case of conflict. It is obvious that current uncertainty has created some severe impacts upon the institution of law enforcement measures at sea as a result of the absence of standards for enforcement measures that could make a balance to the mechanism. Hence the law enforcer has to be cautious with a number of factors in deciding the implementation of law enforcement measures within the sea.

scholarly journals SUBSIDIARY APPLICATION OF LEGAL NORMS: CIVIL STUDIES

2021 ◽  
pp. 44-52
Author(s):  
Надежда Николаевна Тарусина
Keyword(s):  
Conflict Resolution ◽  
Labor Relations ◽  
Civil Law ◽  
Labor Law ◽  
Legal Regulation ◽  
The Other ◽  
Legal Norms ◽  
Social Principle ◽  
Judicial Lawmaking ◽  
Systemic Nature

Субсидиарное применение правовых норм является одной из технологий усмотренческой деятельности суда и других компетентных субъектов - наряду с конкретизацией норм и правоотношений, аналогией права и закона, разрешением коллизии и судебным правотворчеством. В отличие от аналогии, необходимость в которой возникает в связи с пробелом в законодательстве, означенный вид деятельности обусловлен системным характером связей между отраслями права и целесообразностью экономии нормативно-правового материала. В пространстве цивилистики взаимодействие трех отраслей (гражданского, семейного и трудового права) по линии субсидиарности осуществляется в основном с акцентом на использование гражданско-правовых конструкций для двух других цивилистических блоков. Это обусловлено как характером «генетических» связей между указанными тремя отраслями законодательства, так и ключевыми позициями гражданского права в цивилистической семье в настоящее время. Однако субсидиарное воздействие последнего существенно ограничивается онтологическими характеристиками семейных и трудовых отношений и присутствием в методах их правового регулирования ярко выраженной публичной компоненты, социального начала. Приводятся наиболее яркие образцы взаимного обогащения нормативным материалом на основе технологии субсидиарности - при очевидном доминировании предложений со стороны гражданского законодательства Subsidiary application of legal norms is one of the technologies of the judgmental activity of the court and other competent subjects - along with the specification of norms and legal relations, the analogy of law and law, conflict resolution and judicial lawmaking. In contrast to the analogy, the need for which arises in connection with a gap in legislation, this type of activity is due to the systemic nature of the links between branches of law and the expediency of saving regulatory material. In contrast to the analogy, the need for which arises in connection with a gap in legislation, this type of activity is due to the systemic nature of the links between branches of law and the expediency of saving regulatory material. In the space of civil law, the interaction of three branches (civil, family and labor law) along the line of subsidiarity is carried out mainly with an emphasis on the use of civil law structures for the other two civil law blocks. This is due to both the nature of the «genetic» links between these three branches of legislation, and the key positions of civil law in the civil law family at the present time. However, the subsidiary impact of the latter is significantly limited by the ontological characteristics of family and labor relations and the presence in the methods of their legal regulation of a pronounced public component, social principle. The most striking examples of mutual enrichment with normative material based on the technology of subsidiarity are given - with the obvious dominance of proposals from civil legislation.

scholarly journals Features of bringing drivers to administrative responsibility under art. 124 of the Code of Ukraine of Administrative offences in the context of damage of a component of road service objects: problems and solutions

2021 ◽  
Vol 1 (1) ◽  
pp. 138-143
Author(s):  
Rostyslav Molchanov ◽  
Maksym Shevyakov
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Police Officers ◽  
Fundamental Principle ◽  
Law Enforcement Agencies ◽  
Legal Norms ◽  
Applicable Law ◽  
Problems And Solutions ◽  
The Law ◽  
Substantive Law

The dynamic development of social relationships, in particular on transport, requires immediate and timely regulatory and legal improvements. First of all, it is necessary to prevent violation of the Constitution by law enforcement agencies and laws of Ukraine in the process of law enforcement. Very often the representatives of Themis, due to the normative unregulated aspects of public relations, apply the existing legal norms of the law, which in certain unprecedented circumstances of the case are not applicable, although they are, at first glance, true. Existing gaps in regulations violate the fundamental principles of responsibility of the perpetrators in particular, the principle of "inevitability of punishment", which is the beginning of the formation in society of nihilistic sentiments, stereotypes of anomie. In this work, we will consider the facts of non-compliance by courts with the task of proceedings in cases of administrative offenses in the field of road safety the central of which is non-compliance with the resolution of the case in strict accordance with the law, and also the ways to resolve this issue. Making detailed analysis of situations regarding breakaway (damage) of the refueling pistol at the gas station by drivers of vehicles due to the vital factors (inattention, haste, etc.) we find out the defects in law enforcement activities of police officers who at the scene of the accident qualify the actions of the perpetrator as a traffic accident. After the procedural registration of this delict, the materials of the administrative case, according to the jurisdiction, are sent for consideration to the court of first instance, where judges incorrectly operate the rules of applicable law, erroneously apply substantive law and violate procedural rules. The consequence of this is a violation of the fundamental principle of "rule of law", the provisions of which are enshrined in in Art. 8 of the Constitution of Ukraine.

scholarly journals OVERCOMING LEGAL NIGILISM, RESOLUTION OF LEGAL CONFLICTS AND RESTRICTION OF LAW ABUSING- VALIDITY BASIS OF LAW FORMATION

2020 ◽  
Keyword(s):  
Civil Society ◽  
Legal System ◽  
Legal Status ◽  
Legal Culture ◽  
Exclusion Zone ◽  
Legal Norms ◽  
Legal Principles ◽  
The Law ◽  
Real Assets ◽  
Abuse Of Law

The aim of the article is to investigate the reasons of legal nihilism and abuse of law origin, to find the optimal ways of overcoming these negative legal phenomena and, as a result, to solve legal conflicts in the activity of state authorities and local self-government, their officials, providing recommendations on introducing liability for law abusing. The process of establishing respect to the law is primarily connected with overcoming legal nihilism, legal conflicts and abuse of law limitation. Legal nihilism retards the decent development of the legal system, encumbers the access of society members to legal values and becomes a serious obstacle on the way of the formation of civil society. Specificity of any legal conflict lays in the fact that is its features and peculiarities are shown, seen and characterized from the position of law, specific legal norms and their requirements, decrees, orders to be perceived and evaluated differently by subjects of law A sense of respect together with legal awareness allows a person logically, reasonably, rationally evaluate and find the most suitable way of behavior and legitimate actions. When manifesting real respect here operates one of the important legal principles of civil society - respect for the rights and freedoms of others as their own. This principle is based on the necessity to keep away from any actions (inaction) so directly or indirectly worsening social or legal status of an individual. We mean here exclusion of not only unlawful actions, but also the facts of rude misuse of law. Factors of rude misuse of law are real assets of law practice, therefore, when understanding problems related to the establishment and development of legal awareness, legal culture, and respect for the law, it is necessary to consider the fact that legislation doesn`t forbid to do evil and is the abuse of law in its purest form. And it cannot be avoided, since law shouldn`t be ubiquitous, otherwise a person would be completely deprived of freedom. However, a civil society, betaking spiritual and moral potential capabilities, can create a certain exclusion zone for people challenging law abusing.

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