scholarly journals Judicial practice in the law reality of Russia: experience of a comprehensive research

2021 ◽  
Vol 25 (3) ◽  
pp. 545-561
Author(s):  
Andrey V. Skorobogatov ◽  
Alexandr V. Krasnov
Keyword(s):  
Feedback System ◽  
Integrative Approach ◽  
Legal Practice ◽  
Legal Norms ◽  
Organic Unity ◽  
Judicial Practice ◽  
Legal Nature ◽  
Unity Of Knowledge ◽  
Organizational Logic ◽  
Actual Formation

The legal nature of judicial practice in the context of legal reality is investigated through prism of phenomenological and axiological analysis. The purpose of the research is to form scientifically proved knowledge of the place and judicial practice role in the legal reality. Methodology is based on complex use of postclassical methods of investigation: integrative approach allows combining within the category both activity of courts on ensuring justice and gained experience. The findings are as follows. Judicial practice is analyzed as a part of social and legal practice. It shows organic unity of knowledge, activity and result. Judicial practice promotes formation of uniform rules of interpretation, formulation of legal norms and decision making in similar situations/cases that removes ambiguity in understanding of norms and clarity of their content. Correlation of ordinary, professional and doctrinal understanding of law as well as rapprochement of social expectations and judicial consciousness, which provide legitimacy to legislation and judiciary practice, is ensured. Conclusions are as follows. Judicial practice covers activity of judicial bodies in administering justice, taking in different values - pragmatist, organizational, logic-intellectual, and formal-legal in a combination of experience generalizations. Due to this, the feedback system between legal norms and individual acts that is reflected in actual formation of models of interpretation and realization of norms, and finally leads to refining legislation is ensured. Judicial practice, thereby, harmonizes legal reality, providing rapprochement of valuable orientations of addressees and senders of law communication.

scholarly journals DISCUSSION ISSUES OF LEGAL DISCRETION

2020 ◽  
Vol 30 (1) ◽  
pp. 165-169
Author(s):  
N.V. Kuznetsova ◽  
L.P. Lapshina
Keyword(s):  
Legal Norms ◽  
Judicial Practice ◽  
Legal Relationship ◽  
Legal Nature ◽  
Legal Position ◽  
Contractual Relations ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

The article presents an analysis of some issues of legal discretion. There is no unified approach either to the definition of discretion or to the legal nature of this phenomenon. There are difficulties in the evaluation of the legal discretion in acting legislature. In private law trial discretion comprises codified regulation. This phenomenon is particularly typical in contract law: the court’s assessment of the behavior of participants in contractual relations as lawful or unlawful, abuse of rights, determination of the nature of the legal norms governing contractual relations. The discretionary powers of the court in many respects make it possible to ensure uniformity in the consideration of cases of a certain category, to form judicial practice on the application of the relevant legislation. The main areas of judicial activity in this case are: making the right choice of the rule of law to be applied to qualify the relevant legal relationship, applying the analogy of law and as well as the legal position developed when resolving a certain category of cases.

scholarly journals CORRELATION OF LEGAL STRUCTURES OF A PRELIMINARY CONTRACT AND AN OPTION TO CONCLUDE A CONTRACT: ANALYSIS OF THEORY AND SYSTEM OF LEGAL PRACTICE

2021 ◽  
Vol 7 (73) (1) ◽  
pp. 270-280
Author(s):  
N.A. Ablyatipova ◽  
A.V. Adler
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Scientific Literature ◽  
Legal Practice ◽  
Judicial Practice ◽  
Legal Nature ◽  
Legal Structures ◽  
The Russian Federation ◽  
Similarities And Differences ◽  
Contractual Structures

In this article, based on the analysis of the current civil legislation, judicial practice and scientific literature, the problem of the correlation of a preliminary agreement with an option to conclude an agreement is considered. Their legal nature is analyzed, criteria for similarities and differences between the specified contractual structures are determined. The paper provides examples of cases of incorrect differentiation of a preliminary contract and an option to conclude a contract in practice, and also describes the features of their qualification as mixed contracts. The authors conclude that the design of a preliminary contract is different from an option to conclude a contract, despite some similarities. The necessity of legal delimitation of the specified contractual forms, as well as the inclusion of some mixed structures in the Civil Code of the Russian Federation, which will allow to avoid their misuse by the law enforcement officer, is noted.

Compensation for Infringement of Copyright and Related Rights: Essence and Primary Functions

2020 ◽  
Vol 5 ◽  
pp. 34-40
Author(s):  
N. V. Buzova ◽  
◽  
R. L. Lukyanov ◽  
Keyword(s):  
Russian Federation ◽  
Research Method ◽  
Comparative Law ◽  
Civil Code ◽  
Judicial Practice ◽  
Legal Remedy ◽  
Legal Nature ◽  
The Russian Federation ◽  
Judicial Protection ◽  
Exclusive Right

The Civil Code of the Russian Federation provides an opportunity to the rightholder in case of infringement of his exclusive copyright and related rights to demand in court instead of compensation for damages incurred by him to pay compensation. In most cases, when the rightholder applies for judicial protection of his violated rights, he requires the recovery of compensation. This article discusses the legal nature of compensation as a legal remedy of an exclusive right and its primary functions. When writing an article, a comparative law research method is used. As a result of the analysis of russian and foreign legislation, as well as judicial practice, it was found that compensation, in addition to restorative, also has a preventive function and can be considered an analogue of statutory damages.

Audientia sacerdotalis?—Remarks on the Legal Nature of Dispute Resolution by Ecclesiastics in Late Antiquity

2021 ◽  
Vol 25 (1) ◽  
pp. 108-149
Author(s):  
Marzena Wojtczak
Keyword(s):  
Dispute Resolution ◽  
Late Antiquity ◽  
Simultaneous Increase ◽  
Legal Practice ◽  
Legal Doctrine ◽  
The Past ◽  
Lower Rank ◽  
Literary Sources ◽  
Legal Nature ◽  
The Subject

Abstract The problem of audientia episcopalis in late antiquity has been the subject of extensive research in the past. Previous studies have usually focussed on the legal doctrine, as well as the picture of bishop courts in the light of the literary sources. In contrast, the question of how audientia episcopalis functioned in the legal practice as shown by papyri has caused scholars much difficulty, due to the limited material available as well as the obscure nature of the institution. One could therefore ask: how is it possible that such allegedly common practice of dispute resolution by the bishops—as literary sources make us believe—is so elusive in the papyri? How to explain the simultaneous increase for that period of the papyrological attestations regarding arbitration/mediation carried out by the clergy of lower rank? Could we be dealing with some sort of audientia sacerdotalis functioning in the legal practice? How widespread was in fact the audientia episcopalis, and was this institution homogeneous or rather heterogeneous in nature? The paper presents the attempt to answer these questions by confronting the imperial law with the evidence of legal practice.

To the Matter of Procedural and Legal Problems of Detaining a Person on Suspicion of Committing a Crime

2021 ◽  
Author(s):  
E.V. Bolshakov ◽  
◽  
I.D. Nazarov ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Judicial Practice ◽  
Procedure Code ◽  
Legal Nature ◽  
The Status ◽  
The Subject ◽  
The Russian Federation ◽  
The Moment

The subject of the research within the framework of the article is the criminal procedure institute for the detention of a person on suspicion of committing a crime. The legal nature of this institution is analyzed, and comments are given on the normative legal acts and judicial practice regulating the issues of detention. The theoretical basis of the research is based on the publications of the last two decades on this problem, in particular, reflecting the discussion of the process scientists S. A. Shafer, S. B. Rossinsky and A. A. Tarasov, the subject of which was the issue of the legal nature of a suspect detention in a criminal case. In the paper, the authors ask the following questions: What is the detention of a person on suspicion of committing a crime in accordance with the legislation of the Russian Federation? From what moment does the detained person acquire the status of a suspect? Is it possible to detain a person before initiating a criminal case? The study concludes that a person acquires the actual status of a suspect from the moment of direct detention, that is, before documenting this status and, as a result, before initiating a criminal case. Amendments to the articles of the Criminal Procedure Code of the Russian Federation are proposed, and the authors` versions of the definitions of the concepts «detention of a suspect», «the moment of actual detention» and «pre-trial proceedings» are given.

scholarly journals The protection of the preemptive rights of separate and pledge creditors in the case of sales of encumbered property by a direct agreement

2021 ◽  
Vol 38 (1) ◽  
pp. 1-12
Author(s):  
Marijana Dukić-Mijatović ◽  
Vladimir Kozar
Keyword(s):  
Purchase Price ◽  
Legal Practice ◽  
Damage Compensation ◽  
Legal Nature ◽  
Rules Of Procedure ◽  
The Subject ◽  
The Right ◽  
Secured Creditors

The article reviews the regulations of Republic of Serbia, domestic legal practice, as well as the opinions of jurisprudence on the exercise and protection of the preemptive rights of separate and pledge creditors in a bankruptcy proceedings. There has been clarified the legal nature of the preemptive right on the subject of the secured right or lien. There were also provided the details related to the significance of the right of a creditor to set off its secured claim with the purchase price, in the case of a creditor being the best bidder (credit bidding). The article aims to present the manner of exercise of preemptive rights in the case of the method of sales of encumbered property/assets by a direct agreement, as well as the legal instruments the secured creditors may use in the case of its violation. There have been analysed the rules of procedure per lawsuit for annulment of a sale due to the violation of the preemptive rights. The deadline for a lawsuit, the content of the lawsuit which protects the preemptive right as well as the damage compensation right were especially considered.

scholarly journals THE PROBLEM OF DETERMINATION OF THE PERSONAL CHARACTER OF TESTATOR’S OBLIGATIONS WITHIN THE FRAMEWORK OF THEIR INCLUSION IN THE MASS OF THE SUCCESSION

2021 ◽  
Vol 2 ◽  
pp. 29-32
Author(s):  
Olga S. Cherepanova ◽  
Keyword(s):  
Controversial Issues ◽  
Judicial Practice ◽  
Personal Character ◽  
Legal Nature

The article examines controversial issues related to the responsibility of the heirs for the obligations of the testator, which have a connection with his personality. The article analyzes the opposing legal positions developed by judicial practice to determine the legal nature of these obligations. The conclusion is substantiated that it is necessary to include in the hereditary mass of obligations to compensate for moral harm and to compensate for harm to life and health, as not having a personal character.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

scholarly journals Problems of defining legal concepts in laws and other normative legal acts

Legal Ukraine ◽  
2020 ◽  
pp. 30-41
Author(s):  
Volodymyr Klochkov
Keyword(s):  
The State ◽  
Legal Concept ◽  
Legal Norms ◽  
Legal Nature ◽  
State And Society ◽  
Word Representation ◽  
The Law ◽  
Definition Of ◽  
Legal Concepts ◽  
Laws And Regulations

Each legal concept has not only content (content), but also a form. The form requires compliance with the rules for the definition and construction of concepts. Improving legal terminology is impossible without deep development and observance of the rules of analysis and the precise construction of the conceptual apparatus. Gaps in legislation and regulations are derived from inaccuracy, lack of clarity and simplicity of conceptual constructions. The inconsistency of certain legal norms found in various laws and regulatory legal acts, the inconsistency of norms with the prevailing realities of legal life in the state and society impede the fulfillment by state authorities, including law enforcement, of their functional responsibilities. Mistakes made in the preparation of draft laws and regulations, methodological recommendations mainly boil down to the violation of the requirements of the unified laws of logic: the law of identity, the law of contradiction, the law of the excluded third and the law of sufficient reason. The use of inappropriate terminology causes complications in the application of legal norms. The Constitution of Ukraine assigns to the prosecutor the function of representing the interests of a citizen or state in court in cases specified by law. The term representation is not exactly chosen. The word "representation" means: the performance of the duties of a representative; an institution representing the interests of someone; elections, as well as the law, the procedure for the election of representatives to any bodies; representation is a legal relationship in which one party (representative) is obligated or entitled to make a transaction on behalf of the other party that it represents; representation means activity on behalf of someone, on behalf of a person. By its legal nature, a representative can only be authorized for transactions that the person he represents is entitled to carry out. The representation of the prosecutor's office in court is specific, since this body does not need instructions, contracts or other documents. The prosecutor or his deputy should act not on behalf of someone, but on behalf of the state in favor of the person and citizen, state or society, within the limits established by law. In the legislation there is a conflict (conflict) in the law regarding the term «representation». To eliminate such a conflict, it is necessary to amend the Law of Ukraine «On the Prosecutor's Office». Key words: definition of concepts, laws and regulations, accuracy, clarity, brevity of terms.

scholarly journals MEMBANGUN MORALITAS DAN HUKUM SEBAGAI INTEGRATIVE MECHANISM DI MASYARAKAT DALAM PERSPEKTIF HUKUM PROGRESIF

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Adam Ilyas ◽  
Dicky Eko Prasetio ◽  
Felix Ferdin Bakker
Keyword(s):  
Rule Of Law ◽  
Legal Practice ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Law And Morality ◽  
The Law

Abstract This study aims to analyze the application of morality to legal practice in Indonesia. This is because the reality of the rule of law today is dominated by a positivist-legalistic phenomenon that prioritizes text but darkens morality's meaning in law. Morality in law seems to be immersed in legal practice that deifies the textual law but neglects the law's moral essence. This research is juridical-normative research oriented towards coherence between the principles of law based on morality and legal norms and legal practice in society. This research's novelty is the development of morality in the rule of law practice by prioritizing two aspects, namely the integrative mechanism aspect of Harry C. Bredemeier with the progressive law of Satjipto Rahardjo. This study emphasizes that efforts to develop law must not forget the elements of morality development. This study's conclusions highlight that the development of law and morality will run optimally by upholding the law as an integrative mechanism and applying progressive law as a solution in facing the lethargy of the Indonesian nation.Keywords: integrative mechanism; morality; progressive lawAbstrak Penelitian ini bertujuan untuk menganalisis penerapan moralitas pada praktik berhukum di Indonesia. Hal ini dikarenakan bahwa realitas praktik berhukum saat ini didominasi oleh fenomena positivistik-legalistik yang mengutamakan teks tetapi menggelapkan makna moralitas dalam berhukum. Aspek moralitas dalam hukum seakan tenggelam dalam praktik hukum yang mendewakan tekstual undang-undang tetapi melalaikan esensi moral dalam undang-undang. Penelitian ini merupakan penelitian yuridis-normatif yang berorientasi pada koherensi antara asas-asas hukum yang bersumber pada moralitas dengan norma hukum serta praktik hukum di masyarakat. Kebaruan dari penelitian ini yaitu pembangunan moralitas dalam praktik negara hukum dengan mengedepankan dua aspek, yaitu aspek integrative mechanism dari Harry C. Bredemeier dengan hukum progresif dari Satjipto Rahardjo. Hasil dari penelitian ini menegaskan bahwa upaya membangun hukum tidak boleh melupakan aspek pembangunan moralitas. Simpulan dalam penelitian ini menegaskan bahwa, pembangunan hukum dan moralitas akan berjalan secara optimal dengan meneguhkan hukum sebagai integrative mechanism serta menerapkan hukum progresif sebagai solusi dalam menghadapi jagat kelesuan berhukum bangsa Indonesia.

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