The restrictive function of legal responsibility and the limits of its action through the prism of proportionality principle

Author(s):  
Irina V. Kushnir

We draw attention to the problem of excessive restriction risk of human and civil rights and freedoms in the process of establishing and applying the institution of legal responsibility by the state. We consider general theoretical issues of the concept and functions of legal responsibility. We substantiate the position on the need to separate the restrictive function from legal liability. As an intersectoral institution of Russian legislation, legal re-sponsibility is characterized by the performance of the following functions: restrictive, preventive, guaranteeing, restorative and educational. We draw attention to the issues of legal liability proportionality in relation to its restric-tive function. We disclose the content of proportionality principle in relation to legal responsibility as an intersectoral institution of legislation. We imagine that the remedy actively used in the legal policy of the state in the form of legal punishment and legal responsibility in general should correspond to the maximum extent to proportionality principle in order to prevent arbitrary and excessive restriction of rights and freedoms. Various kinds of deviations, deviations from the principle of proportionality of legal responsibility are supposed to be interpreted in theory as one of the most important prerequisites for the formation of dysfunction and imbalance of the institution in question. Violation of proportionality principle of responsibility in law is proposed to be interpreted as its dysfunction.

Author(s):  
K. V. Trifonova

In the article, from the standpoint of legal science and practice of state regulation of migration relations, the author examines the application of legal liability to violators of the norms of migration legislation. The author conducts a theoretical and legal analysis of the institution of legal responsibility. The definition of legal responsibility as a legal reaction of society and the state to the unlawfulness of actions (inaction) allows us to conclude that the introduction by the state of special legal regulation is a form of disposition of state power. The implementation of legal responsibility in the dynamics of legal regulation is characterized by the intertwining of regulatory, substantive and procedural and legal aspects, which allow ensuring the passage of responsibility through all stages and procedures of legal regulation, which creates an ordering effect. In conclusion, the author points out that legal responsibility, being an element of the legal regulation mechanism, clearly demonstrates its specificity and features, as well as general efficiency in the law enforcement process of imposing punishment.


Author(s):  
Н.А. Мангильдина ◽  
С.А. Комаров

В статье рассматривается правовая политика в сфере юридической ответственности за экологические правонарушения; характеризуются виды юридической ответственности за экологические правонарушения; выявляются проблемы применения юридической ответственности за данную категорию преступлений. The article considers the legal policy of legal liability for environmental offenses, studies the types of legal liability for environmental offenses, identifies the problems of legal liability of the considered category of crimes.


2021 ◽  
Vol 4 ◽  
pp. 31-32
Author(s):  
Aleksandr A. Kitayev ◽  

The work examines parliamentary immunity in the context of administrative and legal responsibility. The current legislation is analyzed for problems in the legal regulation of the status of deputies of the State Duma, members of the Federation Council, deputies of legislative bodies of constituent entities of the Russian Federation, as well as the status of deputies in representative bodies of local self-government. Possible options for solving problematic issues on the topic of work are described.


2020 ◽  
pp. 166-174
Author(s):  
Ostap KRAVCHUK

The institution of oath is studied, the signs of oath-breaking are characterized. It is emphasized that a violation of the law (an offense) is not only a subjective guilty behavior, but also an internal psychological attitude, namely the offender’s negative attitude towards legal requirements and protected interests. Guilt stipulates for the subject’s awareness of the meaning of his actions and their consequences, not only as factual circumstances, but also in the sense of their socially dangerous illegal nature. If there is no guilt, there may not be any legal liability, and in this case, it may be a casus. It is noted that it is extremely difficult to determine the guilt in the offense of oath-breaking, and in some cases, it is even impossible, because it is often a subjective assessment. This is also due to the nature of the work performed by civil servants. It is emphasized that the criteria of punishability allows to make a clear distinction between different types of offenses, as each of them has the different degree of responsibility as consequence. Since the institution of oath is within the scope of those social relations that are fundamental in the civil service, given the content of the oath, it is obvious that the social danger of oath-breaking is quite significant and harmful to the state and to people. As can be seen, this act infringes on the foundations and organization of public power, civil service, human and civil rights and freedoms, and can lead to serious violations of certain aspects of functioning of the state, society, and any person. It is concluded that there are some characteristics of disciplinary case in oath-breaking case, namely public harm, which harms the object of the oath. However, it is not possible to state to determine what degree of gravity or harmfulness is inherent in this case, as there is no division of disciplinary cases in the legislation according to the degree of social danger. Although this division can be made on the basis of liability (gravity of punishment) for a particular disciplinary offense (for example, for some offenses the employee may get an admonition, and for others, he may receive a reprimand, and in case of re-offending he may be dismissed, although there are some offences the commitment of which immediately provides an opportunity to dismiss the offender from office and government agency). Keywords: oath, civil service, civil servant, oath-breaking, social danger, culpability, punishability, legal responsibility.


2021 ◽  
Vol specjalny (XXI) ◽  
pp. 465-477
Author(s):  
Iwona Gredka-Ligarska

In Art. 15 gf of the Act of 2 March 2020 on special solutions relating to the prevention, counteraction and combatting COVID-19, other infectious diseases and the resulting crisis situations, the legislator introduced a right to terminate non-competition agreements. The purpose of this article is to examine if that right does not interfere excessively with the interests of employees, mandatories and contractors, and if it does not disturb the balance between the parties to non-competition agreements. The research problem is analysed on several levels. The constitutional approach is adopted (in terms of compatibility with: the principle of a democratic state ruled by law; principle of proportionality; principle of equality before the law). Also, interpretation of the examined provisions is presented and complexities it may trigger in practice. Conclusions of the performed analysis are a basis for the presented amendment proposals intended to mitigate the negative consequences of the examined provisions.


Author(s):  
Oleh Boginich

Introduction. State responsibility to civil society is a topic that has already been the subject of research by some scientists. It was studied by political scientists, representatives of constitutional law, administrative law, theory of state and law. At the same time, there are still issues that require additional analysis, since, from the author's point of view, the conclusions drawn in previous studies did not contribute to increasing the state's responsibility to civil society. The aim of the article. To investigate the nature of relations between the state and civil society, to establish the grounds for the emergence of its responsibility to civil society, the forms and methods of its control over the activities of individual state bodies and officials. Results. Control functions are immanent to the vital activity of any system. The specifics of a state-organized society necessitate two functions of control – control by society over the state as a special authorized body for solving general cases of the first, and internal control of the state over compliance with the parameters of the system defined by society. From the content of Article 1 of the Constitution of Ukraine, it follows that Ukraine is a sovereign and independent, democratic, social and legal state. These principles constitute the characteristics of the state, which the society, through its representatives in Parliament, when adopting the basic law, authorized to observe in its activities. However, the practice of the activities of state bodies of Ukraine at the present stage indicates total violations of these principles. One of the reasons for this situation is incorrectly established ties between the state and society. Most authors refer to these relations as parity, where the state and society are equal subjects . From our point of view, they are not and cannot be parity, since the state is a function of society, and there is a functional connection between them. Contrary to these conclusions, the activities of the president of Ukraine and the Verkhovna Rada of Ukraine for violating their duties are not accompanied by the onset of legal liability for them. This, in particular, applies to such cases as the confrontation between the president of Ukraine and the Constitutional Court of Ukraine, where the former unconstitutionally attempted to resolve this confrontation in his favor, suggesting that the parliament dissolve the Constitutional Court of Ukraine. This, in addition to violating their obligations to comply with the Constitution of Ukraine, should also be interpreted as a violation of their oath, which contains similar requirements for their activities. In this regard, measures are considered necessary to apply measures of legal liability to the president for violating his duties and Oath. Similar conclusions should be drawn regarding the failure to fulfill election promises on the part of people's Deputies of Ukraine, as well as their violation of the oath they take in accordance with Article 79 of the Constitution of Ukraine. Conclusions. Summing up, we can conclude that without strengthening the legal responsibility of the state to civil society for non-fulfillment of its duties, the rights of citizens will be subject to systemic violations. Political responsibility is regulated by the norms of law, and therefore it is also a legal liability, it also contains the composition of an offense, in particular a constitutional tort as the basis for its occurrence, and therefore it should necessarily provide for the existence of sanctions for violating the obligations of the relevant authorized entities. Legal liability of officials who head or are members of state bodies should always be accompanied by bringing the perpetrators to justice (constitutional, criminal, administrative, civil, disciplinary).


Author(s):  
L. Ladina ◽  
M. Veselov

The legal responsibility of a notary is in its essence an important element of the legal regulation of public relations in the field of notarial activities, which is manifested in the purposeful influence of the state on the behavior of notaries through legal means. The purpose of this article is to formulate the concept and outline the characteristics of the main types of legal liability of a private notary. The legal liability of private notaries is proposed to be understood as a set of legal coercive restrictions provided by law and the suffering of subjects of private notarial activity of personal, organizational and property nature for the committed offense. At the same time, it is emphasized that the legal responsibility of a notary as a structural element of his legal status consists not only in the application of appropriate coercive measures against him for an offense (retrospective aspect), but also in his awareness of his responsibility for proper performance (prospective aspect). It is noted that the components of the system of legal liability of a private notary are its types, namely: civil (professional), criminal, administrative and disciplinary. It is emphasized that the institution of legal liability of private notaries should be considered not only as a guarantee of lawful and conscientious performance of their duties, a means of protecting the legitimate interests of the state and citizens related to the provision of notarial services, but also as a regime of private notaries. procedural relations arising from the application of coercive measures by the state to them. It is established that the legal responsibility of a private notary is complex, and provides for the imposition on him not only the actual legal responsibility, but also moral responsibility for actions before the state and society. The limits of legal liability of private notaries depend on the type of such liability. The administrative nature of the notary’s activity and his performance of actions on behalf of the state allows to draw a conclusion about the tortious nature of the notary’s liability for violation of the established procedure for performing notarial acts.


2016 ◽  
Vol 93 (2) ◽  
pp. 4-16
Author(s):  
Brian Kovalesky

In the late 1950s and early 1960s, during the height of protests and actions by civil rights activists around de facto school segregation in the Los Angeles area, the residents of a group of small cities just southeast of the City of Los Angeles fought to break away from the Los Angeles City Schools and create a new, independent school district—one that would help preserve racially segregated schools in the area. The “Four Cities” coalition was comprised of residents of the majority white, working-class cities of Vernon, Maywood, Huntington Park, and Bell—all of which had joined the Los Angeles City Schools in the 1920s and 1930s rather than continue to operate local districts. The coalition later expanded to include residents of the cities of South Gate, Cudahy, and some unincorporated areas of Los Angeles County, although Vernon was eventually excluded. The Four Cities coalition petitioned for the new district in response to a planned merger of the Los Angeles City Schools—until this time comprised of separate elementary and high school districts—into the Los Angeles Unified School District (LAUSD). The coalition's strategy was to utilize a provision of the district unification process that allowed citizens to petition for reconfiguration or redrawing of boundaries. Unification was encouraged by the California State Board of Education and legislature in order to combine the administrative functions of separate primary and secondary school districts—the dominant model up to this time—to better serve the state's rapidly growing population of children and their educational needs, and was being deliberated in communities across the state and throughout Los Angeles County. The debates at the time over school district unification in the Greater Los Angeles area, like the one over the Four Cities proposal, were inextricably tied to larger issues, such as taxation, control of community institutions, the size and role of state and county government, and racial segregation. At the same time that civil rights activists in the area and the state government alike were articulating a vision of public schools that was more inclusive and demanded larger-scale, consolidated administration, the unification process reveals an often-overlooked grassroots activism among residents of the majority white, working-class cities surrounding Los Angeles that put forward a vision of exclusionary, smaller-scale school districts based on notions of local control and what they termed “community identity.”


Author(s):  
Yaroslav Skoromnyy ◽  

The article examines the features of the formation (genesis) of legal responsibility of judges in Ukraine (from Kievan Rus to the present day). It has been proven that at present there are many problems regarding the criminal (legal) responsibility of judges. It was found that judges are insufficiently protected from manifestations of criminal prosecution, which, in turn, affects the increase in loyalty to the prosecution, in contrast to the defense in the criminal process. It has been established that today there are no perfect mechanisms for appealing the inaction of judges in court. It was determined that bringing judges to disciplinary responsibility in the High Council of Justice does not fully comply with the requirements of the European Charter on the Status of Judges. Based on the results of the legal analysis of the activities of the institutions of judicial responsibility, it was found that modern methods of bringing judges to justice in Ukraine are imperfect, often contradictory, and in some cases allow judges to avoid responsibility. It has been established that the issue of civil liability of judges for carrying out wrong actions against citizens today requires an urgent solution, since the legal literature does not fully disclose the provisions that govern the conditions, grounds and procedure for holding judges accountable for resolving unfair sentences and implementing illegal actions that entail material and/or moral damage to citizens. It has been determined that for harm caused as a result of an unjust court decision made by a judge, as well as due to the judge's inaction, property liability is imposed on the state, since the judge conducting the proceedings acts on behalf of the state, that is, Ukraine. It was found that today a judge can be brought to disciplinary responsibility in cases determined in accordance with the Law of Ukraine «On the Judicial System and the Status of Judges».


Sign in / Sign up

Export Citation Format

Share Document