scholarly journals Nullity of Administrative Acts: Grounds, Legal Regime, Discretion

2021 ◽  
Vol 18 (2) ◽  
pp. 228-242
Author(s):  
O. N. Sherstoboev
Keyword(s):  
Legal Doctrine ◽  
Judicial Practice ◽  
Legal Method ◽  
Administrative Procedures ◽  
Legitimate Expectations ◽  
Administrative Act ◽  
The Stability ◽  
The Moment ◽  
Legal Concepts

The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.

scholarly journals Sources of Formation of Legal Positions of Russian Highest Judicial Bodies

2021 ◽  
pp. 130-142
Author(s):  
Mariia Viktorovna Globa
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
Legal Method ◽  
The Supreme Court ◽  
The Russian Federation

The present study is devoted to determining the place and role of legal positions of higher judicial bodies of Russia (judicial legal positions) in the mechanism of legal regulation. Let us specify in advance that the author means the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation (taking into account the 2014 amendments made to the legislation concerning the liquidation of the Supreme Arbitration Court of the Russian Federation) as the higher judicial bodies of Russia. Establishing the meaning and role of judicial legal positions in the mechanism of legal regulation is carried out by the author of this study through the analysis and demonstration of the main sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. In this regard, the author of this work identifies as sources of formation of judicial legal positions: legal and non-legal. Non-legal sources of formation of legal positions of the highest courts of Russia differ from the legal ones in the fact that initially they do not have material expression, exist in the abstract, however, have no less importance for the process of formation of judicial legal positions. To the legal sources of creating legal positions of the highest judicial bodies of Russia the author includes: formal sources of law, current legal practice, legal doctrine. As non-legal sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation are: the inner conviction of a judge and professional legal consciousness of a judge. The author of this scientific research consistently reveals the importance and role of each source of formation of judicial legal positions. The conducted study of the most significant sources of formation of judicial legal positions allowed to better understand the place of legal positions of higher courts of Russia in the legal system and their role in legal regulation, which is reduced not just to the interpretation of judicial acts, but also to the formation of new legal provisions, which ultimately form a uniform judicial practice. Methodological basis of the study consisted of: analysis, synthesis, comparative-legal method, deduction, induction and other ways of knowledge used in science. Scientific conclusions and proposals contained in this work may serve as a basis for further theoretical study of the problems of judicial legal positions and used in the activities of legislative and law enforcement bodies.

The French Council of State: Its Role in the Formulation and Implementation of Administrative Law

1955 ◽  
Vol 49 (3) ◽  
pp. 673-692 ◽  
Author(s):  
Georges Langrod
Keyword(s):  
Administrative Law ◽  
Creative Task ◽  
Legal Thought ◽  
Judicial Practice ◽  
The Moment ◽  
Legal Concepts ◽  
Council Of State ◽  
Creative Construction ◽  
Administrative Tribunal

In order to understand the nature, evolution, and basic conceptions of French administrative law, it is essential to study the role of the Conseil d'État, the supreme administrative tribunal. Creative and dynamic, often even bold, the jurisprudence of this remarkable body remains nevertheless prudent and fundamentally evolutionary. One would search in vain for the major principle of French administrative law in the legislative texts; they have been developed by the jurisprudence of this Council as it proceeds, by a series of successive decisions, from specific cases to ultimate yet flexible generalizations, establishing basic legal concepts not only by the skillful interpretation of texts, but also by creative construction when the texts are silent. Together with its doctrinal achievements, the Council's usus fori or judicial practice forms a flexible source of principles applicable to specific cases. The legislator may regulate according to circumstances and the necessities of the moment, without concerning himself with general principles or even conforming rigorously to those created by jurisprudence and theory. But the administrative judge, in administering justice, performs a genuinely creative task and establishes bases for legal thought.

scholarly journals HENRI LÉVY-BRUHL’S DOCTRINE ON LAW AND ON THE FORMATION OF LEGAL SCIENCE OF A NEW TYPE

2017 ◽  
Vol 3 (4) ◽  
pp. 58-66
Author(s):  
Владимир Пужаев ◽  
Vladimir Puzhaev
Keyword(s):  
Scientific Discipline ◽  
Sociology Of Law ◽  
Legal Anthropology ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
True Source ◽  
History Of ◽  
New Type ◽  
History Of Law

The article is devoted to the investigation of legal ideas of Henri Lévy-Bruhl, a French lawyer and sociologist of the XX century, who is considered to be one of the founders of contemporary sociology of law, legal ethnography and legal anthropology. The author of the article analyzes the late articles of Henri Lévy-Bruhl. The author of the article examines the notion “juristique”, introduced by the French professor, and investigates its methodological and substantial peculiarities. As a scientific discipline, “juristique” was supposed to be shaped through the integration of sociology of law, history of law and comparative law into a body. The author also pays special attention to H. Lévy-Bruhl’s theoretical views on the question of law and mechanisms of its formation, on subjects of law-making and sources of law. In particular, the author considers Lévy-Bruhl’s views of collective opinion as the only true source of law, customs’ priority over legislation among all forms of law, judicial practice as the modality of a custom. The key role of Durkheim’s sociology in the shaping of Henri Lévy-Bruhl’s legal views is also highlighted. Henri Lévy-Bruhl’s particular ideas are compared with the doctrine of historical school of law. The final part of the article is devoted to formulating a series of theses which reflect the peculiarities of Henri Lévy-Bruhl’s legal views and his role in contemporary legal doctrine.

scholarly journals The Role of Cations of the Precipitant in the Interaction of Protein Molecules in the Lysozyme Oligomers in Crystallization Solutions

Crystals ◽  
2021 ◽  
Vol 11 (12) ◽  
pp. 1534
Author(s):  
Yuliya V. Kordonskaya ◽  
Vladimir I. Timofeev ◽  
Yulia A. Dyakova ◽  
Margarita A. Marchenkova ◽  
Yury V. Pisarevsky ◽  
...  
Keyword(s):  
Protein Crystallization ◽  
Structural Transformations ◽  
Atomic Mass ◽  
Crystal Formation ◽  
Noticeable Effect ◽  
Protein Molecules ◽  
The Stability ◽  
The Moment ◽  
Dynamics Method

At the moment, the main opinion is that protein crystallization depends mainly on the the precipitant anions, therefore, there have been only few works devoted to the problem of the influence of its cations. Using the molecular dynamics method, we investigated the stability, changes in the compactness and structural transformations of lysozyme dimers and octamers in solutions with different precipitants (LiCl, NaCl, KCl and CuCl2) in order to study the contribution of cations during crystal formation in more detail. As a result, we found that cations have a rather noticeable effect on the behavior of oligomers: the higher the atomic mass of the cation, the greater the changes in the dimers structures during its dynamics and, according to the data of SAXS experiments, the lower the concentration of dimers. However, for octamers, this dependence is more complicated.

scholarly journals PROTECTION OF CONSTITUTIONAL CULTURAL RIGHTS AND FREEDOMS OF CITIZENS BY THE CONSTITUTIONAL COURT OF UKRAINE

2018 ◽  
Vol 4 (4) ◽  
pp. 134-139
Author(s):  
Mykola Inshyn ◽  
Yurii Міroshnychenko ◽  
Yurii Paida
Keyword(s):  
Regulatory Compliance ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Scientific Methods ◽  
Cultural Rights ◽  
Legal Method ◽  
The Subject ◽  
Constitutional Justice ◽  
Legal Concepts

The aim of the article is to explore the place and role of the Constitutional Court of Ukraine in the mechanism of constitutional cultural rights and freedoms protection within the context of Ukrainian constitutional justice reforming. The subject of research is the protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine. Methodology. Scientific research is based on the use of philosophical, general, and special scientific methods and techniques of scientific cognition. The dialectic method allows examining the phenomenon of protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine within the dynamics of its evolution and interaction with other legal concepts. The systemic method made it possible to present the mechanism of protection of constitutional cultural rights and freedoms of citizens as a combination of interrelated elements. The formal-legal method was used to analyse the regulatory framework of protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine along with relevant decisions of this judicial body. Results obtained upon completion of the research give an opportunity to claim that the protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine may be performed on the basis of both direct and indirect access of persons to the constitutional jurisdiction body through the regulatory compliance assessment (constitutional recourse and initiation of legal action by certain state power bodies and its officials through constitutional claim filing). Practical outcomes. Research provides: examination of doctrinal and applicable aspects of the Constitutional Court of Ukraine activity on the protection of constitutional rights and freedoms of citizens; characteristics of general theoretical essence of constitutional cultural rights and freedoms of citizens with distinguished types; analysis of peculiarities of protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine in the course of its powers exercising. Value/originality. On the basis of a comprehensive study of constitutional doctrine, Ukrainian legislation and implementation practices certain proposals are elaborated regarding the improvement of the effectiveness of the Constitutional Court of Ukraine activity in the area of protection of constitutional cultural rights and freedoms of citizens.

scholarly journals Praktyka precedensowa w porządku prawa stanowionego. Podstawowe czynniki warunkujące

2017 ◽  
Vol 110 ◽  
pp. 159-175
Author(s):  
Leszek Leszczyński
Keyword(s):  
Political System ◽  
Social Acceptance ◽  
Active Role ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
Division Of Powers ◽  
Operational Interpretation ◽  
Democratic System ◽  
The Common

PRECEDENTIAL PRACTICE IN THE STATUTORY LEGAL ORDER.BASIC DETERMINING FACTORSThe purpose of the paper deals with the consideration of the several basic factors determining the development of the precedential practice in the statutory legal order. Such practice might be defined at the using the previous judicial decisions in the actual decisional process in the validation or derivative aspects of the operational interpretation of law, with potential adaptation of some so­lutions from the common law order. Among the favorable factors for the shaping of this practice one might find the maturity and the positive attitude of the judiciary, features of the specific decision-making process, the attitude of the legal doctrine, social acceptance of the active role of the judiciary bringing potentially ethical correction to the legislative regulations, the technical and informational skill in identification of the needed decisions, the reliable evaluation of the candidate for the position of judge, as well as the functioning of the principles of division of powers, rule of law and independence of judiciary, being elements of the democratic political system. On the contrary, the autocratic political system keeps the position of the strongest counter­-favorable factor to the precedential practice. One of the reasons deals with lack of the control of such practice from the center of political power, what brings the instruments that through the de­gradation of the above mentioned principles of democratic system, restrict the precedential judicial practice.

Formalism and Realism in Private Law

2020 ◽  
pp. 464-480
Author(s):  
Emily Sherwin
Keyword(s):  
Vital Role ◽  
Point Of View ◽  
Private Law ◽  
Reasons For Action ◽  
Legal Doctrine ◽  
Legal Realism ◽  
Judicial Decision Making ◽  
Private Rights ◽  
Legal Concepts

One feature of the renewed interest in private law is a willingness to study legal doctrine and to recognize the role of doctrine in judicial decision-making. In this respect, New Private Law stands in opposition to Legal Realism, which denies or at least minimizes the influence of doctrine on adjudication. New Private Law assumes that legal concepts, categories, and rules play a vital role in defining legal relations between parties interacting with one another. Yet even those who are open to the idea that doctrine plays a role in adjudication of private rights and duties tend to reject “formalistic” approaches to legal doctrine. The chapter offers a partial defense of serious, deductive formalism. From the point of view of a legal authority or an individual who imposes a rule on herself, deductive formalism is practically rational, even if it sometimes produces results that are wrong when judged by the purposes of the rule or the rule follower’s reasons for action. The chapter then discusses different approaches to problem of bad results in particular cases and suggests that the traditional method of equitable intervention has advantages over the Realist aversion to determinate rules.

scholarly journals The effect of microstructure of the surface, the design and dimension of dental implants on their stability and the process of osteointegration during immediate and delayed implantation. PartII

2021 ◽  
Vol 108 (4) ◽  
pp. 34-38
Author(s):  
P. Grishin ◽  
◽  
E. Mamaeva ◽  
E. Kalinnikova ◽  
A. Kozlov ◽  
...  
Keyword(s):  
Primary Stability ◽  
Implant Surface ◽  
Surface Design ◽  
Resonance Analysis ◽  
Delayed Implantation ◽  
Size Type ◽  
The Stability ◽  
The Moment ◽  
Immediate Implantation

Abstract. This article presents the results of a clinical study of the stability and process of osteointegration implants of 11 known implant dental systems. The effect of the microstructure of 3 types of implant surface (HSTTM, SLA and RBM) and their design features (shape, size, type of carving) on the indicators of their stability and osteointegration process during immediate and delayed implantation with immediate functional load is shown and analyzed. The stability of the implants and the dynamics of the quality of osteointegration were determined by the devices «Osstell Mentor» and «Periotest» in the process of treatment, starting from the moment of implant installation in different eras (2 weeks, 1 month, 2 months and 3 months). 414 patients between the ages of 20 and 70 were monitored. Of these, there are 249 and 165 male women. The average age of the operated patients was: for men – 54 years for women – 49 years. All patients were divided into two groups of the first – 109 patients who after extraction were directly implanted into the hole of the remote tooth with the subsequent immediate load, the second group – 305 patients who were delayed implantation with immediate load. A total of 1,302 implants were installed. The study revealed a link between the type of surface of the implant, primary stability and the time of its osteointegration during certain periods of clinical observation. The results of the study demonstrated the important role of combining microstructure of the surface, design and dimension features, the type of insertion of implants on their primary stability and the process of osteointegration in the conduct of both immediate and delayed implantation. Key words: frequency resonance analysis, damping, stability, osteointegration, fixation, implants, periotestometry, immediate implantation.

scholarly journals MAIN CHARACTERISTICS OF ADMINISTRATIVE ACTS FROM THE PERSPECTIVE OF ADMINISTRATIVE PROCEDURE LAW OF LATVIA AND JUDICIAL PRACTICE

2019 ◽  
pp. 133-147
Author(s):  
Kristine Kore-Perkone
Keyword(s):  
Kyrgyz Republic ◽  
Main Concept ◽  
Administrative Procedure ◽  
Judicial Practice ◽  
Legal Literature ◽  
Administrative Procedures ◽  
Administrative Act ◽  
The Law ◽  
Classic Form ◽  
Definition Of

An administrative act is the main concept and instrument of administrative procedure. Despite the availability of other forms of the performance of public administration (for example, practical step, public law agreement, legislative action etc.), an administrative act is considered as an activity in classic form. Consequently, as a rule, the concept of an administrative act is analysed more frequently in the Latvian administrative judicial practice and legal literature. The article provides an overview of the main characteristics of administrative acts from the perspective of Administrative Procedure Law in Latvia. In the article, the author elaborates on several main characteristics of administrative acts from the perspective of judicial practice and Latvian doctrine. The author also undertakes а comparative analysis between the Latvian Administrative Procedure Law and the newly adopted Law on Administrative Activities and Administrative Procedures of the Kyrgyz Republic. From the above, it follows that the positive part of the definition of an administrative act in the Administrative Procedure Law of Latvia is the same as in the Law of the Kyrgyz Republic. Thus, both laws provide for similar features that a decision must have to be recognized as an administrative act. It is noted that the Administrative Procedure Law of Latvia includes an exception to the general principle that an interim decision is not an administrative act, apart from cases when the decision itself substantially affects the rights or legal interests of a person or substantially limits them. The definition of an administrative act, which is stipulated by the Law of the Kyrgyz Republic “On Administrative Activity and Administrative Procedures”, does not indicate that an administrative act is not an interim or procedural decision. The above does not mean that even now in Kyrgyzstan in order to recognize the decision as an administrative act, there must be no features of a final character. The jurisdiction of administrative offenses cases was changed from the jurisdiction of administrative courts to the courts of criminal jurisdiction. Consequently, the competence of administrative cases doesn’t involve considering administrative offences cases.

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