scholarly journals Silence and tacit consent in Armenian public law: Legal fiction, presumption or substitution?

2021 ◽  
Vol 12 (3) ◽  
pp. 728-751
Author(s):  
Artur S. Ghambaryan ◽  
Keyword(s):  
Public Law ◽  
Legal Issue ◽  
Presumed Consent ◽  
Positive Law ◽  
Legal Fiction ◽  
Tacit Consent ◽  
The Will ◽  
The Subject ◽  
Definition Of ◽  
Legal Consequences

In the article, the author researches the problematic aspects of silence in law, in particular, the definition of silence is provided, its meaning at various stages of historical development is outlined, the types of silence are described, the legal consequences of silence are discussed, and the place of silence in the sphere of legal conventions (legal presumptions, fictions, substitution). The author provides the following definition of silence: silence is a legitimate or unlawful inaction of the subject of legal relations, from which the conditional content of the subject’s will on a legal issue follows and (or) with which a positive law (transaction) directly connects the occurrence of legal consequences. Since silence can be interpreted as a sign of agreement or disagreement, it can be argued that it creates uncertainty. Given the fact that legal certainty in modern life is a constitutional value, positive law should exclude or mitigate this uncertainty, or the content of the will arising from silence should be predetermined by positive law or transaction. The result arising from the silence falls within the realm of legal conventions and in order to find out whether silence is a legal presumption, legal fiction or substitution, the article compares these categories. The author concludes that the legislator can formulate the same provision regarding silence both with the help of legal fiction (fictitious consent) and with the help of a legal presumption (presumed consent). At the same time, the article provides a justification for the impossibility of considering tacit consent as a legal substitution, in view of the fact that in objective reality there is no conditional silence, which is an essential reason for excluding the basis of legal substitution.

scholarly journals CONTRADICTIONS BETWEEN SCIENTIFIC TERMINOLOGY AND THE TERMINOLOGY OF THE LEGISLATION ON THE DEFINITION OF SUBJECTS AND PARTICIPANTS IN THE ADMINISTRATIVE PROCESS

2019 ◽  
pp. 70-73
Author(s):  
I. L. Zheltobriukh
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
Public Law ◽  
Administrative Process ◽  
Scientific Terminology ◽  
Procedural Law ◽  
The Subject ◽  
State Of Affairs ◽  
Definition Of ◽  
Enforcement Activity

This paper explores the existing contradictions between the scientific terminology and the terminology of legislation regarding the definition of subjects and participants in the administrative process. It is noted that acquaintance with the scientific and educational- methodological literature shows that even today there is no clear justification of the relation between the terms “subject of administrative process” and “participant of administrative process”. The main reason for this state of affairs is due to differences in the laws of development of national administrative procedural legislation and the laws of development of science of administrative procedural law. It is concluded that there is a long-standing need to offer the scientific community and practitioners such a concept of relation between the terms “subject of administrative process” and “participant in administrative process”, which would reconcile the contradictions of the otological and epistemological terminology used in the CAS. The necessity to use in the science of administrative law and process justifies the concept according to which the administrative process should be considered as law enforcement activity of administrative courts related to the consideration and resolution of public law disputes. In such a case, the administrative court will always be the subject of the administrative court, whereas the parties, third parties, representatives, assistant judge, court secretary, court administrator, witness, expert, law expert, translator, specialist are only participants in the administrative process that is, persons involved in the enforcement of administrative law.

scholarly journals ADMINISTRATIVE OFFENCE IN THE FIELD OF INTELLECTUAL PROPERTY AS THE GROUND FOR ADMINISTRATIVE LIABILITY

2020 ◽  
pp. 19-29
Author(s):  
Andrii Khridochkin ◽  
Petro Makushev
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Public Relations ◽  
Intellectual Property Rights ◽  
Social Harm ◽  
The Subject ◽  
Definition Of ◽  
Objective Side ◽  
Subjective Side ◽  
Legal Consequences

The article deals with homogeneous group of administrative offences - administrative offences in the field of intellectual property as a basis of administrative liability. It is emphasized that the objective features of this administrative offence are its social harm, wrongfulness and punishment, and subjective ones are guilt and subjectivity. It is emphasized that only in the presence of all these features can one speak of qualifying an individual’s act as an administrative offence and resolving the issue of bringing him to administrative liability. The definition of the term “administrative offence in the field of intellectual property” is proposed as envisaged by the legislation on administrative liability of socially harmful, unlawful, guilty act, committed by the subjects of such unlawful acts that encroach on the set of property and personal non-property rights to the intellectual results. It is established that all warehouses of administrative offences in the field of intellectual property (art. 51-2, 107-1, 156-3 (in the part concerning intellectual property objects), 164-3, 164-6, 164-7, 164-8, 164-9, 164-13) there are such elements as objective signs and subjective features, which in their unity form the composition of administrative offences of this group. It is noted that the only generic object of these administrative offences is the group of public relations of intellectual property, which are protected by the law on administrative liability, and the subject of this group of public relations are objects of intellectual property. It is proved that the objective side of administrative offences in the field of intellectual property is a set of ways of infringement of intellectual property rights. Attention is drawn to the fact that in practice the violation of intellectual property rights to different objects has different economic, social and legal consequences, and therefore the degree of their social harm is different, and therefore there is a need to differentiate administrative liability depending on the intellectual property. Subjective signs of the administrative offences of this group, which are represented by their subject, are established, and the subjective side is characterized by the fact that they are committed only intentionally.

scholarly journals Responsibility of monks in the context of law and society

2020 ◽  
Vol 59 (89) ◽  
pp. 247-262
Author(s):  
Sanja Gligić
Keyword(s):  
Canon Law ◽  
Fundamental Principle ◽  
Law And Society ◽  
Positive Law ◽  
The Social ◽  
The Status ◽  
The Will ◽  
The Subject ◽  
The Church ◽  
Life Function

In the course of history, ecclesiastical life has been imbued by secular beliefs, embodied in human endeavour to get a strong foothold in the Church. Since Emperor Constantine's era, the idea that matured in the ecclesiastical consciousness was that the fundamental principle underlying the organization of ecclesiastical life lay in the domain of law. Nevertheless, in contrast to positive law, canon law is not an expression of the will of an individual or the congregation; instead, it comprises rules deriving from the nature of the Church. The Church, just like any other organism, is governed by two tenets: the static organization, and its dynamic life function. Thus, the responsibility of monks can be perceived either in line with canonic law or within the social context, whereby these tenets are inalienable since there can be no life without organization, nor can there be organization without life. In case a member abandons an organization, regardless of the reasons behind such action (be it voluntary or through the power of law), positive law prescribes that all ties between the said organization and its former member are to be dissolved. On the other hand, in case a penalized monk is obliged to leave the monastery due to the gravity of the pronounced sanction, he is entitled (as a former member) to preserve the status of a Christian. This point derives from the fact that baptism constitutes an indelible fact of spiritual life. This paper examines the subject matter of monks' responsibility for violation of canon law, by comparing the mediaeval and contemporary sources of the Serbian canon law, in view of identifying changes in the said period and drawing the most accurate conclusions.

scholarly journals Passive Capacity To Perform Juristic Acts As An Element Of Civil Active Capacity Of Minors

2020 ◽  
pp. 10-22
Author(s):  
R.M. Heints
Keyword(s):  
Additional Requirement ◽  
The Will ◽  
Definition Of ◽  
A Minor ◽  
Legal Consequences ◽  
Biological Nature

The article analyzes the definition of civil active capacity of natural persons, reveals the existing approaches in the doctrine to its definition and understanding of passive capacity to perform juristic act as an element of civil active capacity. The author positively perceives the position of the legislature on the formulation of the concept of civil active capacity through the term «ability», because the process of forming the will of natural persons has a biological nature and, accordingly, the basis for granting of natural persons an active capacity is its natural ability to adequately perceive and evaluate the surrounding reality, own actions, make independent decisions, implement them through own actions and be aware of the responsibility for such actions. Given that the basis of active capacity is the ability to independently perform legally significant lawful acts, the key element of active capacity is passive capacity to perform juristic act. According to the results of the study, the author proposes to classify all juristic act performing by a minor by the criterion of «coordination of their commission with parents (adopter) or trustees» into three groups: 1) juristic act that can be performing without the consent of parents (adopter) or trustees; 2) juristic act that can be performing with the consent of parents (adopter) or trustees; 3) juristic act that can be performing with the consent of parents (adopter) or trustees and with the permission of the guardianship authority. The consent of parents (adopter) or trustees to perform a juristic act by a minor should be considered as an additional requirement established by the legislature to the procedure of its performing by a minor and an additional guarantee to protect the interests of a minor who cannot fully assess the need to perform the juristic act and its legal consequences. According to the current legislation, the consent of the parents (adopter) or trustees to perform a juristic act by a minor may be made orally, for default, or in writing by a notarized form.

METHODOLOGICAL PARADIGM OF MODERN LEGAL SCIENCE IN UKRAINE

2020 ◽  
Vol 10 (4) ◽  
pp. 12-20
Author(s):  
Vladimir Yashchenko ◽  
◽  
Olha Balynska ◽  
Keyword(s):  
Law Enforcement ◽  
General Theory ◽  
Social Relations ◽  
Positive Law ◽  
Legal Science ◽  
The Will ◽  
Definition Of ◽  
The Individual ◽  
The Relationship ◽  
Interacting Components

The leading idea of the article is the application of the most appropriate methodology for disclosing the essence and content of law, its origin, evolution, contradictions and their coordination in the context of the relationship between natural and positive law, social and individual paradigms, in particular, in the context of nationalizing the individual, and, on the contrary, individualizing the collective in a wide humanistic plane. This aspect synthesizes approaches to the disclosure of individual and collective through the categories of �self�, where dialectical, phenomenological, existential and other approaches are qualified as communicative and dialogic paradigm, which today finds its practical embodiment in lawmaking and law enforcement. Feeling the controversy of these views, the authors emphasize the deepening of the humanistic content of the legal regulator of social relations. Domestic modern legal science in its development should focus on deepening the humanistic content of the normative regulation of social relations. This actualizes the need to solve such scientific problems as the methodology of research and functioning of law, achieving a harmonious relationship between individual and collective in law, the connection of its natural and positive aspects, etc. A fundamentally new definition of the essence of law is proposed, not as the will of a certain class or majority, but as the will to self-existence, which is expressed in the phenomenon of self as a harmonious synthesis of individual and social. In this context, to investigate the legal phenomena dialectics can be effectively used not as a materialistic or idealistic methodology, but as the most general theory and way of ascending to the truth. After all, opposites in law are not necessarily antipodes, but can act as interacting components of legal reality

scholarly journals Juridical Implementation of Distribution Assets for the Inheritance to Adopted by Islamic Law Compilation

Jurnal Akta ◽  
2020 ◽  
Vol 6 (4) ◽  
pp. 763
Author(s):  
Noor Handayani ◽  
Akhmad Khisni
Keyword(s):  
Islamic Law ◽  
Adopted Children ◽  
Literature Analysis ◽  
Legal Certainty ◽  
Adopted Child ◽  
Inheritance Law ◽  
Positive Law ◽  
The Will ◽  
Legal Consequences

The purpose of this study was to: 1) analyze the position adopted child's inheritance rights in Islamic Law Compilation (KHI). 2) to analyze the implementation of the division of property as inheritance to an adopted child Compilation of Islamic Law (KHI). 3) Analyze the legal consequences of the implementation of the division of property as inheritance to an adopted child Compilation of Islamic Law (KHI).This study was prepared using the type of normative juridical research, the research focused on reviewing the application of the rules or norms of positive law. This study uses the approach of legislation (statute approach) And the approach of the case (case approach). The data collection was obtained by interview and literature. Analysis of data using qualitative descriptive.The research results are: 1) Position Adopted in the Compilation of Islamic Law that adopted children may not be recognized to be the basis and cause of inherited, because the basic principle in Islamic inheritance law is their blood relations / nasab / descent. So as the solution according to Islamic law compilation is by jalam Award "was borrowed" on condition should not be more than 1/3 (one third). 2) The division of property as inheritance to an adopted child Compilation of Islamic Law (KHI) must meet two requirements that are required to accept the will not the beneficiary, the person who died both the grandfather and the grandmother has not provided to the child that must be made a will, the amount with other roads, such as grants for example, and if he has less than the sum was borrowed, then it should enhanced the will. 3) The role of the Notary in deed was borrowed for a foster child is doing what desired heir and explain all that heir to all the heirs, it is intended to provide clarity and legal certainty for all heirs of things execution of wills which heir to all his heirs.Keywords: Inheritance, Adopted, Compilation of Islamic Law.

scholarly journals Certain issues of protection of the rights of citizens in concluding a transaction under psychological duress

2021 ◽  
pp. 61-68
Author(s):  
Roman Borisovich Kulichev
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Physical Violence ◽  
Comprehensive Analysis ◽  
Legal Issues ◽  
Practical Implementation ◽  
The Will ◽  
The Subject ◽  
The Individual ◽  
Legal Consequences

This article is dedicated to the legal issues of protection of the rights of individuals who have concluded civil transactions under psychological duress, namely hypnosis. The object of this research is civil law relations that emerge in conclusion of transaction by individuals. The subject of this research is the person’s will and its characteristics in deciding to conclude a transaction under psychological coercion unrelated to physical violence, as well as legal consequences of concluding such transactions. The author examines the factors that contribute to conclusion of transactions under psychological coercion and possible reasons for psychological coercion. The article examines civil and criminal law methods of protection of the rights of citizens who concluded transactions with a defect of volition, but are legally capable and aware of their actions. The conclusion is made that the only effective way to protect the individual from concluding such transaction lies in cultivation of the will. It is noted that the key evidence in challenging such transactions is forensic psychiatry evaluation; however, its commission depends solely on the judge’s decision on a particular dispute. The author assumes that the implementation of punitive measures for coercing into conclusion of such transactions is improbable, since the law enforcement authorities would refuse to initiate a criminal case due to civil nature of the dispute. The scientific novelty of consists in carrying out a comprehensive analysis of both, civil and criminal law methods of protection of the rights of citizens who have concluded transactions with the defect of volition, and the possibility of their practical implementation.

scholarly journals Prawo do poznania matki biologicznej według krajowego prawa rodzinnego

2014 ◽  
pp. 129-154
Author(s):  
Dorota Krekora-Zając
Keyword(s):  
Germ Cells ◽  
Legal Regulation ◽  
Biological Mother ◽  
Civil Status ◽  
The Subject ◽  
Definition Of ◽  
Polish Code ◽  
Legal Consequences ◽  
In Vitro Treatment

The subject of this article is an analysis whether on the grounds of Polish Code on Family and Guardianship it is possible to determine the one's right to recognize his/her mother. Introduction to the Polish Code on Family and Guardianship a legal definition of mother and claims for establish or denial of one's motherhood was legislator's attempt to regulate the civil status of child. Development of the in vitro treatment may lead to situation where one women would be donor of a germ cells while other women would bear a child. The article therefore provides an analysis of legal consequences of this amendment to the code in respect to legal regulation on motherhood. In particularly the issues of admissibility of claims for recognize one's genetic and biological mother as well as evidence limitation in this kind of cases would be addressed in the article.

scholarly journals Hesitantly towards mutual recognition of “vaccination passports”. A survey on potential ubiquity in administrative law

2021 ◽  
Vol 11 (special) ◽  
Author(s):  
Jakub HANDRLICA
Keyword(s):  
Mutual Recognition ◽  
Legal Framework ◽  
Administrative Law ◽  
Public Law ◽  
Administrative Authority ◽  
The Subject ◽  
Second Year ◽  
Written Law ◽  
Theoretical Considerations ◽  
Legal Consequences

The problem of potential ubiquity emerged in administrative law because of transboundary circulation of various certificates, licences and permits. These documents, approving certain facts, may appear before an administrative authority of another State. Thus, the applicable regime of public law must qualify the legal consequences of such documents in the realm of the applicable administrative law. This article aims to discuss this problem with regard to the challenges arising in the second year of the COVID-19 pandemics. Prospective introduction of “immunity certificates” and “vaccination passports” in various jurisdictions and the need to establish mutual recognition of such “passports” and “certificates” is the subject of attention. The article points out existence of several dogmatic approaches to the fact that foreign administrations have either approved a fact, or granted a right. Some of these dogmatic approaches have been reflected in the written law. However, at the same time, in theory, other solutions than those provided by the current legal framework would also be theoretically possible. The importance of these theoretical considerations is demonstrated regarding the very current discussions on the introduction of “immunity certificates” and “vaccination passports”.

scholarly journals The concept of criminal procedural legal relations: definition of concept

2019 ◽  
pp. 185-196
Author(s):  
V. Vinnychenko
Keyword(s):  
Critical Analysis ◽  
Public Law ◽  
Axiomatic Method ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
European Court ◽  
The Face ◽  
The Subject ◽  
Theory Of Law ◽  
Definition Of

The concept of criminal procedural legal relations in the context of modern globalism of criminal proceedings is considered in the article. Scientific approaches to definition of concept of legal relations, subject of criminal procedural law, method of criminal procedural law are investigated. The purpose of the article is to define the concept of criminal procedural legal relations under modern criminal proceedings. The author is investigated: Approaches to defining the concept of legal relations and Criminal procedural legal relations; Subject of criminal procedural law and method of criminal procedural law. During the research, a critical analysis of the mentioned scientific material is made and its own scientific approach to the definition of the criminal procedural legal relations is developed. During the copyright it is investigated a number of methods of scientific cognition, in particular, how: the method of scientific formalization; Axiomatic method; Hypoolytic-Deduktive method. The concept of the theory of Law on definition of notion and signs of legal relations was investigated, the analysis of these concepts was made and the concept of criminal procedural legal relations was chosen. The concept of criminal procedural legal relations provided by Ukrainian scientists and the critically-critical analysis of these concepts is investigated. It is given that existing approaches are not correct for modern legal reality and cannot be flexible in the face of progressive globalized development of the modern criminal procedural law. Scientific approaches to the subject of criminal procedural law as signs of criminal procedural legal relations are investigated. Scientific approaches to definition of criminal procedural law method as signs of criminal procedural legal relations are investigated. The analysis of the criminal procedural legislation and precedents of the European Court of Human Rights as a source of international public law is carried out. Generalized and scientifically deduction method output the concept of criminal procedural legal relations, which may be applied under the conditions of modern globalized criminal proceedings. The study has an interdisciplinary character. The author conducts research using the scientific base of Globalistics, Furturilogy, international relations.

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