scholarly journals Determination of the judicial precedent in the system of sources of Ukrainian law

2021 ◽  
pp. 63-68
Author(s):  
L. Nikolenko
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Social Relations ◽  
Negative Impact ◽  
Positive Impact ◽  
Constitutional Court ◽  
Progressive Development ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Legal Position

The article analyzes and determines the place of judicial precedent in the system of sources of Ukrainian law. The relationship between judicial precedent and case law is analyzed. It was found that the precedent gives the court decision on a particular case of a normative nature, determining the legal position of the judge is mandatory when considering similar cases. It is proved that this feature distinguishes precedent from judicial practice, which is understood as a set of court decisions on specific legal issues. It is determined that the principle of unity of judicial practice is not absolute, as the Supreme Court is endowed with procedural legislation in the prescribed manner to deviate from the previously formed legal position. The establishment of any restrictions will have a negative impact on the development of procedural law and judicial practice, will exclude the possibility of progressive development of law and social relations. The activity of the Supreme Court as the highest body of the judiciary with the functions of ensuring the uniform application of legislation and ensuring the unity of judicial practice, the acts of which are of paramount importance, is analyzed. It has been proved that the introduction of the “exemplary case” and “typical case” institutes is a step towards the recognition of judicial precedent in Ukraine and the unification in the legal system of our state of features and peculiarities of both legal families, Anglo-Saxon and Romano-Germanic. The position of scholars who refer the decisions of the Constitutional Court of Ukraine to “quasi-precedents” is supported. It is noted that European Court of Human Rights judgments are used as precedents for Ukrainian courts to apply in their own cases. It is concluded that given the positive impact of precedent on court cases, as well as in general on the regulation of public relations and overcoming gaps in the legislation, it is necessary to implement it at the legislative level as an official source of law.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

Review of the Practice of Consideration of Cases of Administrative Offenses under Article 6.1.1 of the Administrative Code of the Russian Federation

2020 ◽  
Vol 5 ◽  
pp. 60-75
Author(s):  
T. V. Fedorova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Constitutional Court ◽  
Controversial Issues ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Administrative Code

The review examines the procedure for judges of courts of General jurisdiction in resolving cases of administrative offenses under article 6.1.1 of the administrative Code of the Russian Federation, and analyzes the practice of courts in various regions of the Russian Federation. The paper offers solutions to controversial issues of judicial practice, considers the positions of the constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on the circumstances to be clarified in the case of an administrative offense under article 6.1.1 of the administrative Code of the Russian Federation.

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.

CONSTITUTIONAL AND LEGAL STATUS OF THE SUPREME COURT AS A COURT OF LAW IN UKRAINE

2021 ◽  
Author(s):  
Ruslan Skrynkovskyy ◽  
◽  
Vasyl Khmyz ◽  
Svitlana Hlushchenko ◽  
Mariana Khmyz ◽  
...  
Keyword(s):  
Supreme Court ◽  
Legal Status ◽  
Judicial System ◽  
Professional Activity ◽  
Constitutional Court ◽  
Main Function ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Law ◽  
Grand Chamber

The article reveals the features of the constitutional and legal status of the Supreme Court as a court of law in Ukraine. It has been established that the constitutional and legal status of the Supreme Court is regulated by the provisions of the Constitution of Ukraine, the Law of Ukraine «On the Judicial System and the Status of Judges» and the Code of Administrative Procedure of Ukraine. Analysis of the legislation allows us to note that the Supreme Court is the highest court in the judicial system in Ukraine. The composition of the Supreme Court is formed by the Grand Chamber of the Supreme Court, the Administrative Cassation Court, the Criminal Cassation Court and the Civil Cassation Court. It has been established that the President of the Supreme Court is elected to office, and also dismissed from office based on the results of a secret ballot held by the Plenum of the Supreme Court. The constitutional and legal status of the Supreme Court makes it possible to single out such basic functions of the Supreme Court as: the function of administering justice, during which the Supreme Court acts as a court of cassation; the function of analyzing judicial statistics, as well as summarizing judicial practice; the function of providing conclusions on draft legislative acts directly related to the judicial system; the function of providing an opinion on the presence or absence of signs of committing high treason or other crime in the acts for which charges are brought against the President of Ukraine, for committing high treason or other crime; the function of providing appellate and local courts with proper methodological information on law enforcement issues, etc. It has been determined that the professional activity of the Supreme Court contributes to ensuring the observance of the principle of equality of all before the law and requires ensuring at the same time the achievement of the unity of judicial practice. It is noted that the prospects for further research in this direction are the study of the legal status of the Constitutional Court of Ukraine as a body of constitutional jurisdiction, the main function of which is to ensure the supremacy of the Constitution of Ukraine.

The Mechanism of Case Reopening Based on New and Newly Discovered Circumstances: Aims, Meaning, Judicial Interpretation (the final part)

2020 ◽  
Vol 10 ◽  
pp. 27-30
Author(s):  
Elvina I. Fagmanova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Judicial Review ◽  
Legal Issues ◽  
Final Part ◽  
Constitutional Court ◽  
Judicial Interpretation ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

The article is devoted to the research of the mechanism in the reconsidering judicial acts under reopened or new circumstances as providing the necessary deviation from the requirement of stability in judicial practice to correct an erroneous judicial act, an analysis of the grounds for reviewing and the importance of judicial review procedures in the system. The author pays an attention to discussions about the possibility of reconsidering a judicial act, due to the development of the position of the supreme court on legal issues, on its borders. The article also analyzes the most important judicial practice of the Constitutional Court of the Russian Federation, the ECHR, and the Resolutions of the Plenum of the Supreme court of the Russian Federation, which substantively reveal the approach of these courts to the mechanism in reconsidering judicial acts under reopened or new circumstances.

Hearing of Cases about Indemnification, Caused to the Environment: Procedural Questions ofJudicial Practice

2020 ◽  
Vol 4 ◽  
pp. 48-58
Author(s):  
M. A. Fokina ◽  
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Research Gaps ◽  
Supreme Courts ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

Research objective is the analysis of practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on cases of indemnification caused to the environment. Proceeding their concepts of integrative right understanding the author reveals the importance of legal positions of the supreme judicial authorities for law-enforcement practice of inferior courts by hearing of cases about indemnification, caused to the environment. During the research gaps in the current legislation and ways of their completion in judicial practice are revealed. Methods. As methods of a research the legallistic method, synthesis, the analysis, induction, deduction were used. Results. The research showed certain shortcomings and gaps of legal regulation of an order of the indemnification caused the environment. Legal positions of the supreme courts which allowed to meet lacks and shortcomings of the legislation are revealed and analysed and to provide appropriate protection of the rights of citizens and legal entities.

Review of the Practice of Application by Judges of Article 2.7 of the Administrative Code of the Russian Federation in the Resolution of Cases of Administrative Offenses

2021 ◽  
Vol 3 ◽  
pp. 66-80
Author(s):  
T. V. Fedorova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Constitutional Court ◽  
Controversial Issues ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Administrative Code ◽  
Relationship Of ◽  
The Relationship

The review examines the rules and procedure for judges actions in resolving cases of administrative offenses with the application of the provisions of Article 2.7 of the Administrative Code of the Russian Federation; analyzes the practice of courts in various regions of the Russian Federation. Proposed solutions to controversial issues of judicial practice, the position of the constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation on the content and the relationship of the terms to be clarified in the case of an administrative offense, with the purpose of application of article 2.7 of the Administrative Code.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

Theft and Fraud Committed Using Electronic Payment Systems (Regional Judicial and Investigative Practice)

2020 ◽  
Vol 2 ◽  
pp. 66-79
Author(s):  
S. L. Morozov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Analysis ◽  
Payment Systems ◽  
Criminal Cases ◽  
Electronic Payments ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

The advent of the electronic currency and the effecting of electronic payments has caused new forms of thefts and types of acquisitive crimes. The judicial investigative practice of criminal cases of embezzlement committed using bank cards and other types of electronic payments has encountered problems with the qualification of such acts. The author identifies the most common enforcement problemsand their causesby a retrospective study of judicial practice, the changing norms of the criminal law. At the same time, a ten-year period of work of the judicial investigating authorities was studied. On the basis of traditional general scientific methods of cognition, as a result of a system-legal analysis of the considered set of specific situations, the author gives an author's view of the complex of causes that cause a lack of uniformity in judicial investigative practice. Using the hermeneutic approach, the author paid special attention to the application by the courts of the interpretation of the criminal law by the Plenum of the Supreme Court of the Russian Federation in different years. In conclusion, ways of resolving contentious issues of qualification of thefts and fraud in the field of electronic means of payment are proposed. It has been ascertained that high-quality and uniform law enforcement can provide additional clarification on the delimitation of related and competing theft from the Plenum of the Supreme Court of the Russian Federation. It is concluded that in general, the current concept of the Plenum of the Supreme Court of the Russian Federation does not contain contradictions with the novels of the criminal law, but can be improved. The rationale and edition of possible additions to the relevant decision of the Plenum of the Supreme Court of the Russian Federation are given.

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