scholarly journals Urgent applications in French administrative justice

2021 ◽  
Vol 25 (2) ◽  
pp. 482-503
Author(s):  
Stepan E. Zvyagintsev
Keyword(s):  
Legal Regulation ◽  
Administrative Claims ◽  
Judicial Decisions ◽  
Special Procedure ◽  
Wide Range ◽  
Legitimate Interests ◽  
Russian Law ◽  
Administrative Courts ◽  
Individual Decisions ◽  
Administrative Justice

The institute of urgent judicial decisions is a special procedure for administrative justice bodies in France, which allows to prescribe effectively and quickly a wide range of necessary measures (from the appointment of expert examinations to the suspension of normative administrative acts) and to protect the legitimate interests of individuals and organizations. There are two main categories of urgent judicial decisions, accordingly their functional purpose. The procedural features of urgent judicial decisions are related to the obligation of the French administrative courts to establish conditions for urgency and the need to prescribe certain measures as a matter of urgency. These criteria, being evaluative, are specified by the jurisprudence of the French administrative courts, according to which the judge determines whether there is a threat of causing immediate and sufficiently serious harm to the interests of the applicant and whether there is a need to take urgent measures, taking into account the circumstances of the case. At the same time, the urgent applications judge does not consider the case, but sets temporary measures that can be changed in the course of further proceedings. The article suggests creating mechanisms in Russian law that are similar to those existing in the French legal regulation of urgent judicial decisions in administrative cases. In particular, the author suggests expanding the powers of Russian courts to suspend normative administrative acts and individual decisions when courts take measures of preliminary protection in administrative claims.

scholarly journals LEGITIMATE PERMISSIONS AND SPECIFITY OF THEIR ENFORCEABILITY IN MODERN RUSSIA

2014 ◽  
pp. 180-187
Author(s):  
V. Subochev ◽  
A. Sheriev
Keyword(s):  
Qualitative Difference ◽  
Legal Regulation ◽  
The State ◽  
Northern Caucasus ◽  
Legal Rights ◽  
Legal Enforcement ◽  
Legitimate Interest ◽  
Legitimate Interests ◽  
Russian Law ◽  
Legal Right

Northern Caucasus Institute of Advanced Training (branch) of Krasnodar University of Ministry of Internal Affairs of Russia, 123, Malbahova Street, Nalshik, 360016, Russia. Abstract: The article investigates the basic legal permissions in Russian law - legal rights, freedoms and legitimate interests. Potential of these means of legal regulation is examined as well as their common features and essential differences. Authors argue that the effectiveness of the mechanism of legal regulation largely depends on the proper use of legal permissions. Particular attention is paid to such kind of legal mean as a legitimate interest. The article draws attention to the fact that if a legal right or freedom are such kind of permissions which are guaranteed by the law in order to sustain certain demands of subjects of law, the legitimate interest is qualitatively different mean of regulation. The authors suggest considering a legitimate interest as reflected in the objective law legal possibility of subjects of law to enjoy certain social benefits and to seek protection from the state authorities in order to meet their interests which are not contradictory to provisions of law. Qualitative difference between legitimate interest and legal right and freedom is that the legitimate interest is an opportunity, guaranteed to a lesser extent than the permitted behavior within a legal right or freedom. Legitimate interest is a mere permission, admitted by the state and to some extent supported by it. But legal right and freedom - are those means of regulation, which are directly approved and sanctioned by the state which presuppose duty of a person to a particular behavior. The author's vision of the specifity of legal enforcement of legitimate admissions is presented.

Administrative Procedure and Judicial Review in Italy

2021 ◽  
pp. 62-64
Author(s):  
Diana-Urania Galetta ◽  
Paolo Provenzano
Keyword(s):  
Judicial Review ◽  
Administrative Authority ◽  
Judicial Process ◽  
The Public ◽  
Appeal Court ◽  
Administrative Procedure ◽  
Legitimate Interests ◽  
Administrative Courts ◽  
Council Of State ◽  
Administrative Justice

This chapter illustrates administrative procedure and judicial review in Italy. According to article 113 of the Italian Constitution, 'the judicial safeguarding of rights and legitimate interests before the organs of ordinary or administrative justice is always permitted towards acts of the public administration'. In Italy, judicial review of administrative action is performed by specific courts: a court of first instance, called Tribunale Amministrativo Regionale (TAR), which is established in every Region, and the Consiglio di Stato (Council of State), which acts as an appeal court. The judicial process before these courts is now regulated by the Code of Administrative Process (CAP). Article 7 CAP provides that the administrative courts have jurisdiction over all acts that the public administrations and legal entities equivalent to them adopt in the exercise of their administrative authority. Since 1889, the Italian system of administrative justice has centred on the provision that administrative acts can be annulled by the administrative courts only in cases of 'breach of law', 'misuse or abuses of power', and/or 'lack of competence'.

scholarly journals ISSUES OF THE NOTARIAL SYSTEM IN THE RUSSIAN LAW ENFORCEMENT SYSTEM IN MODERN CONDITIONS

2021 ◽  
Vol 1 ◽  
pp. 17-20
Author(s):  
Georgiy I. Pescherov ◽  
Keyword(s):  
Law Enforcement ◽  
Rational Solution ◽  
Modern Society ◽  
Public And Private ◽  
Advantages And Disadvantages ◽  
Wide Range ◽  
The World ◽  
Legitimate Interests ◽  
Russian Law ◽  
The Law

The article is devoted to the analysis of the problems of notaries in the law enforcement system of Russia in modern conditions. The author adheres to the scientific position of a wide range of the “law enforcement system”, where any activity in society should be aimed at ensuring the rights, freedoms and legitimate interests of citizens. Based on this, identifying the problems of notaries and their causes is the key to finding a rational solution towards the formation of the institution of notaries that meets the requirements of modern society. The main disputes of specialists are concentrated in the fluctuations between public and private notaries, as well as in the choice of a direction of development like the Latin notary and the introduction of the model of an active notary, where each direction has its own advantages and disadvantages. However, the process of development of society is endless and the ongoing globalization processes in the world require the unification of the activities of the notary, taking into account the national, ethnic and historical characteristics of states, which, ultimately, will significantly simplify economic and business cooperation between peoples of different countries.

scholarly journals LEGAL INTERPRETATION IN RUSSIAN LAW: THE UNITY OF THE METHODOLOGICAL AND ACTIVITY APPROACHES

2019 ◽  
Vol 23 (2) ◽  
pp. 200-218
Author(s):  
Yulia A. Gavrilova
Keyword(s):  
Legal Regulation ◽  
The State ◽  
Legal Interpretation ◽  
Legal Analysis ◽  
Legal Norms ◽  
Wide Range ◽  
History Of ◽  
Russian Law ◽  
Scientific Attention ◽  
Modern Russian

The problem of legal interpretation in Russian jurisprudence is characterized by an extremely wide range of opinions: from formally dogmatic to postmodern. Every scientist tries to see in the interpretation something «his own». A number of scientists believe that it is possible to discuss the terminology of the question, in particular, the distinction between «interpretation» and «explain». Others consider that the purpose of studying the interpretation is to find the best ways to understand the laws published in the state. For the third, the interpretation is interesting in that it lies at the basis of the discretion of officials in the course of practical work on resolving legal disputes, and this raises questions of the limits of interpretation. For the fourth, the interpretation has the status of an ideological toolkit for solving social problems, for example, in constitutional judicial proceedings. The current doctrinal state of the interpretation problem lags behind the needs of legislation and legal regulation practice. Therefore, the changes in the passport of a scientific specialty 12.00.01 - the theory and history of law and the state; the history of the doctrine of law and the state, which singled out the legal interpretation as an independent method of the study of law, requires due scientific attention. The purpose of the article is to give the author's a generalized idea of the place and meaning of legal interpretation in modern Russian law on the material of available scientific literature. Research methods: formal legal, analysis and synthesis, modeling, extrapolation. The results of the study. The age-old disputes over legal interpretation among scholars and practitioners lawyers, philosophers, politicians are explained by the polysemy of the term «interpretation», which allows considering it, according to the author’s article, in two fundamental meanings: narrow and broad. In a narrow linguistic sense, interpretation is a combination of linguistic methods for analyzing legal texts. In a broadly discursive sense, interpretation is perception, translation (decoding) and extracting the meaning of any legal phenomena. Separately highlighted are the methodological and activity aspects of this problem, focusing respectively on modern approaches to interpreting the phenomena of the entire legal life of society, as an integral part of legal discourse, and traditional approaches to interpretation as special activities aimed at understanding the meaning of textually fixed legal norms using special technical-legal means. It is concluded that the generalized consideration of legal interpretation in modern Russian law is necessary in the unity of the methodological and activity aspects.

scholarly journals Administrative Legal Proceedings: The Ambiguity Of The Concept

2019 ◽  
pp. 118-126
Author(s):  
Yu.V. Kerniakevych-Tanasiichuk
Keyword(s):  
Social Relations ◽  
Academic Discipline ◽  
Legal Regulation ◽  
Science Field ◽  
Administrative Process ◽  
Specific Subject ◽  
Legal Proceedings ◽  
Legal Science ◽  
Administrative Courts ◽  
Administrative Justice

The key to effective implementation of the right to judicial protection is the proper functioning of the judicial system, an important element of which is the administrative courts that ensure the administration of administrative justice. Moreover, the protection of human and citizen’s rights and freedoms through the instruments of administrative justice is an important guarantee of protection against violations by public authorities and local self-government of the «weaker» side of public-legal relations - human and citizen. In the legal literature administrative legal proceedings is interpreted differently by different scholars, which makes it possible to conclude that this legal phenomenon is multidimensional. In addition to understanding «administrative legal proceedings » as a separate area of justice, scholars also view administrative law as meaning: administrative justice as an area of legal science; positive (objective) administrative justice as an area of law Administrative legal proceedings as a branch of legal science examines the current law and jurisprudence of its application, its history and theory, the legislation of other states governing certain legal relationships. The independence of the field of law is first of all indicated by the specific subject matter and method of regulation, which are the identifying features by which the branches of law are distinguished. Administrative legal proceedings is endowed with its specific subject (the set of social relations that determine the procedure for consideration and resolution by public courts of public law disputes) and the method of legal regulation of the relevant relations in the process of administration of justice, which is endowed with a complex character, that is, is positive. At the same time, administrative legal proceedings as a separate science, field of law and branch of justice is the subject of study of the same discipline. In addition, given the inaccuracy of the terms «administrative process» and «administrative legal proceedings» (the term administrative process is broader and more generalized term, which includes administrative justice), it is necessary to emphasize the need to teach «Administrative legal proceedings of Ukraine» separately from «Administrative Procedural Law of Ukraine» at the level of independent academic discipline. This will focus on the peculiarities of the procedure for the consideration and settlement of administrative cases by administrative courts at all stages of the judicial administrative process.

scholarly journals On the issue of optimizing the activity of administrative courts in the light of judicial and legal reform in Ukraine

2020 ◽  
pp. 98-104
Author(s):  
O.Y. Zvirko ◽  
O.O. Osipova
Keyword(s):  
Court System ◽  
Public Authorities ◽  
Judicial Control ◽  
The Supreme Court ◽  
Legitimate Interests ◽  
Administrative Courts ◽  
European Standards ◽  
Separate Subsystem ◽  
Administrative Proceedings ◽  
Administrative Justice

The article is dedicated to the problems of optimization of administrative court system of Ukraine in connection with the ongoing reform of the courts. The available arguments for and against reforming the acting model of administrative justice of Ukraine are discussed. It has been clarified that the system of administrative courts in force has been specially approved for the adoption of Ukrainian society. The results of the statistical analysis show how it can successfully cope with deliveries to its arrogance. Indicate that you must reinsert the court system and recapture the administrative courts with the common courts. At the same time, with healthy administrative conviction, there are a few significant problems, among them we can call access to administrative justice and delimitation of administrative courts jurisdiction from commercial and common courts jurisdictions. A closer look at the problems that need to be solved will require a farther and more thorough amendments to optimize the administrative courts activity. It has been concluded that the model of administrative justice in Ukraine since 2005 in the form of a separate subsystem of administrative courts of both the first and second links fully meets European standards and ensures the implementation of the rule of law, protection of rights and legitimate interests of individuals and legal entities, judicial control over legality and decisions of public authorities and their officials. There are no good grounds for its change (merger with courts of civil and criminal jurisdiction). Such reform will do more harm than good, negatively affect the quality of justice, the professional level of the judiciary. Prospects for further reform of administrative proceedings in Ukraine are in the area of introduction of modern mediation procedures, electronic proceedings, improvement of control over the legality of court decisions by higher courts (especially the Supreme Court of Ukraine), optimization of the burden on judges by establishing rational norms of their activity, depending on the number of cases received by the courts, the development and implementation of more effective mechanisms for the selection, training, retraining and accountability of judges.

scholarly journals Vliv organizace státní správy na (místní) příslušnost soudů ve správním soudnictví

AUC IURIDICA ◽  
2021 ◽  
Vol 67 (4) ◽  
pp. 117-129
Author(s):  
Lukáš Potěšil
Keyword(s):  
Case Law ◽  
Legal Regulation ◽  
The State ◽  
General Nature ◽  
Basic Question ◽  
The Public ◽  
State Administration ◽  
Administrative Courts ◽  
Practical Nature ◽  
Administrative Justice

This paper deals with changes that have taken place in the organisation of state administration from the perspective of administrative justice and its local jurisdiction. In order to do so, the paper answers the basic question of whether the organisation of state administration (in terms of the local jurisdiction of administrative authorities) and the organisation of administrative courts (also in terms of their local jurisdiction) are related or not. In this context, it is worth considering whether the organisation of administrative justice should follow the organisation of the public/state administration as such and its trends, or even the opposite, and whether the two phenomena should not be independent of each other. The paper summarises the issue of the criteria for determining the local jurisdiction of administrative courts, the legal regulation of which has undergone certain developments, similar to the development of the legal regulation of the organisation of the state administration. The question is whether any common indicators can be traced. The issue under examination is not only of a purely practical nature, such as the criteria for determining the local jurisdiction of an administrative court. It is related to the overall state of both the state administration and the administrative justice and their organization, and it offers a number of questions of a more general nature, such as the formal and informal impact of “its” regional court on the administrative authorities within its jurisdiction, the influence of their case law on “local administrative law”, the question of the availability of administrative courts, or access to them, as well as their caseload. Overall, the paper discusses whether it is possible to find any relationship, or rather consequences, arising from the local jurisdiction of administrative authorities, resulting of course from the form of the organisation of the state administration, and the (non)corresponding local jurisdiction of the administrative justice. Possible de lege ferenda considerations in terms of the organisation and local jurisdiction of the administrative justice are also mentioned.

Typologization of security regulation

2020 ◽  
pp. 20-27
Author(s):  
Denis Tikhomirov
Keyword(s):  
Social Relations ◽  
Scientific Literature ◽  
Legal Regulation ◽  
Procedural Understanding ◽  
Limited Ability ◽  
Methodological Basis ◽  
Wide Range ◽  
The Subject ◽  
Definition Of ◽  
Legal Understanding

The purpose of the article is to typologize terminological definitions of security, to find out the general, to identify the originality of their interpretations depending on the subject of legal regulation. The methodological basis of the study is the methods that made it possible to obtain valid conclusions, in particular, the method of comparison, through which it became possible to correlate different interpretations of the term "security"; method of hermeneutics, which allowed to elaborate texts of normative legal acts of Ukraine, method of typologization, which made it possible to create typologization groups of variants of understanding of the term "security". Scientific novelty. The article analyzes the understanding of the term "security" in various regulatory acts in force in Ukraine. Typological groups were understood to understand the term "security". Conclusions. The analysis of the legal material makes it possible to confirm that the issues of security are within the scope of both legislative regulation and various specialized by-laws. However, today there is no single conception on how to interpret security terminology. This is due both to the wide range of social relations that are the subject of legal regulation and to the relativity of the notion of security itself and the lack of coherence of views on its definition in legal acts and in the scientific literature. The multiplicity of definitions is explained by combinations of material and procedural understanding, static - dynamic, and conditioned by the peculiarities of a particular branch of legal regulation, limited ability to use methods of one or another branch, the inter-branch nature of some variations of security, etc. Separation, common and different in the definition of "security" can be used to further standardize, in fact, the regulatory legal understanding of security to more effectively implement the legal regulation of the security direction.

scholarly journals Innovations and Analogies in the Legal Regulation of Withdrawal from a Limited Liability Company under Current Russian Law

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 21
Author(s):  
Viktor A. Mikryukov
Keyword(s):  
Law Enforcement ◽  
Limited Liability ◽  
Fair Value ◽  
Legal Regulation ◽  
Business Climate ◽  
Positive Role ◽  
Freedom Of Contract ◽  
Study Find ◽  
Russian Law

The purpose of the study is to highlight the most significant legal gaps in the mechanism under study, find doctrinally relevant ways to overcome them casually in law enforcement, and propose options for generally filling the gaps in rulemaking. It is equally important to test the effectiveness of the analogy as a means to combat legal gaps. The methodological framework was formed by general (analysis, synthesis, abstraction, and concretization) and specific (comparative, formal, and technical legal) scientific research methods. The positive role of analogy as a method of combating legal uncertainty and the formation of legislative innovations was confirmed. The conclusion was made about the absence of a formal need for additional legislative authorization for Limited Liability Companies’ members to create a conditional or individualized withdrawal procedure. Backed by the legal analogy, the necessity to extend the freedom-of-contract doctrine in determining the fair value of a withdrawing shareholder’s share was argued. The achievements provided the basis for specific practical proposals to enhance existing Russian legislation and harmonize corporate relationships, which should improve Russia’s business climate.

Assisted-living for older people in Israel: market control or government regulation?

2003 ◽  
Vol 23 (6) ◽  
pp. 779-795 ◽  
Author(s):  
ISRAEL DORON ◽  
ERNIE LIGHTMAN
Keyword(s):  
Older People ◽  
Assisted Living ◽  
Government Regulation ◽  
A Priori ◽  
Self Regulation ◽  
Legal Regulation ◽  
Rapid Expansion ◽  
Assisted Living Facilities ◽  
History Of ◽  
Legitimate Interests

In recent decades there has been a rapid expansion of assisted-living facilities for older people in many different countries. Much of this growth has occurred with only limited or no government regulation, but many problems have arisen, typically around the quality of care, which have led to demands that governments act to protect vulnerable residents. This paper examines whether formal legal regulation is the optimal policy to protect the needs and rights of frail residents, while respecting the legitimate interests of others, such as operators and owners. It presents the case for and against direct legal regulation (as in institutions), and suggests that no overall a priori assessment is possible. The analysis is based on the case of Israel, where proposed regulations for assisted-living have been introduced but not implemented. After a brief history of assisted-living in Israel – its recent dramatic growth and why this occurred – the paper concludes that formal direct regulation is not the best route to follow, but that the better course would be to develop totally new ‘combined’ regulatory legislation. This would define the rights of residents and encourage self-regulation alongside minimal and measured mechanisms of deterrence. Such an approach could promote the continued development of the assisted-living industry in Israel and elsewhere, while guaranteeing that the rights, needs and dignity of older residents are protected.

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