Legal nature of individual proceedings in cases of granting the right to marriage

2021 ◽  
pp. 88-93
Author(s):  
T.M. Balyuk
Keyword(s):  
Family Law ◽  
Adoptive Parent ◽  
Intangible Asset ◽  
Scientific Article ◽  
Adopted Child ◽  
Legitimate Interest ◽  
Civil Proceedings ◽  
Legal Nature ◽  
Specific Material ◽  
The Right

The scientific article is devoted to the study of the legal nature of separate proceedings in cases of granting the right to marry.It is established that a separate proceeding as a type of non-litigious civil proceedings is characterized by: 1) the absence of a dispute about the right, which, at the same time, does not exclude the existence of a dispute about the fact; 2) a special object of judicial protection – a legally protected (legitimate) interest, which is the needs and aspi-rations to use a specific material and (or) intangible asset, which may or may not be mediated by a certain subjective right. Protection of legally protected (legal) interest is carried out by the court by deciding on the presence or absence of legal facts relevant to the protection of rights, freedoms and interests of a person or creating conditions for the exercise of personal non-property or property rights or confirmation of the presence or absence of undisputed rights.It is determined that a separate proceeding in cases of granting the right to marry is a type of non-litigious civil proceedings for consideration of applications for confirmation of the presence or absence of legal facts that are im-portant for creating conditions for a person’s right to marry. It is substantiated that the legal nature of separate proceedings in cases of granting the right to marry is a set of substantive grounds for granting the right to marry and features of the procedural form of consideration by the court of relevant applications that mediate changes in family law. The court, establishing the presence or absence of legal facts, decides to grant a person the right to marry, thereby expanding the family law capacity of such a person due to the ability to exercise the right to marry before reaching marriageable age or marry between the adopter’s adopted child and the adopted child, as well as between children who have been adopted by an adoptive parent.

Some Aspects of the Court Protection of Family Rights and Interests

2020 ◽  
Vol 27 (1) ◽  
pp. 71-83
Author(s):  
Hanna Churpita
Keyword(s):  
Family Relations ◽  
Scientific Article ◽  
Stage Of Development ◽  
Legal Relation ◽  
Legal Relationship ◽  
Legal Nature ◽  
Rights And Interests ◽  
Legal Fact ◽  
The Right ◽  
Judicial Protection

The scientific article is devoted to some aspects of judicial protection of family rights and interests. At the present stage of development of society, one of the priority areas of public policy in Ukraine is the protection of family rights and interests. Achieving this goal is ensured through various legal means, among which a special place is occupied by judicial protection. In connection with the duplication of the list of methods of judicial protection in family and civil legislation of Ukraine, one of the problems that attracts attention is the ratio of methods of civil and family protection, as well as clarifying the possibility of applying civil legislation to regulate family relations. Therefore, the purpose of this scientific article is to analyse the problematic aspects of family law and civil law regulation of judicial protection of family rights and interests. As a result of the study, it is substantiated that the only mandatory prerequisite for establishing a legal relation by a court decision is the prior establishment by a court of a relevant legal fact as a basis for the emergence, change or termination of the legal relationship. In view of this, the court, except for cases of adoption, as well as the establishment of a separate residence on the application of spouses, protects family rights and interests in a separate proceeding not by establishing a legal relationship, but by confirming the presence or absence of legal facts, which are the basis for its occurrence, change or termination. It is established that the legislator's regulation of such special methods of judicial protection of family rights and interests as establishing a legal relationship and its annulment is due to the special legal nature of family legal relations, which does not exclude the possibility of “subsidiary application” to protect the rights and interests of their subjects using civil protection methods (recognition of the right and invalidation of a transaction).

scholarly journals The right to a favorable environment as a constitutional and environmental right

2019 ◽  
pp. 165-175
Author(s):  
I. O. Krasnova
Keyword(s):  
Environmental Quality ◽  
Russian Federation ◽  
Environmental Legislation ◽  
Public Interests ◽  
Legitimate Interest ◽  
Favorable Environment ◽  
Legal Nature ◽  
The Russian Federation ◽  
Environmental Relations ◽  
The Right

The legal uncertainty of the right to a favorable environment revealed by science is noted, which impedes its implementation. Two positions of scientists are analyzed — recognizing the right to a favorable environment as a subjective right and as a legitimate interest. As the right to a favorable environment is proclaimed in the Constitution of the Russian Federation and enshrined in environmental legislation, the author comes to the conclusion about the double legal nature of law. As a subjective right, it is directly enshrined in the Law “On Environmental Protection” and extends to a narrow circle of environmental relations to ensure environmental quality, and as a constitutional one, it expresses public, public interests enshrined in the preambles and principles of laws, in political and legal acts.

scholarly journals Relations on Taxes Imposition as General Regulatory Tax Relations

Lex Russica ◽  
2019 ◽  
pp. 60-71
Author(s):  
S. A. Yadrikhinskiy
Keyword(s):  
Legal Status ◽  
Public Law ◽  
Regulatory Control ◽  
Active Involvement ◽  
Legitimate Interest ◽  
Legal Relationship ◽  
Legal Nature ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
The Right

In the paper the author attempts to define the legal nature of relations regarding establishment and introduction of taxes and fees in the Russian Federation. The author refutes the traditional ideas about the absolute model of such legal relations, as the alleged circle of obligated persons does not have the potential to prevent implementation of the sovereign right of the authorized party. It is concluded that relations concerning the imposition of taxes amount to general regulatory relations with broader legal relations, where the right of the authorized person corresponds to the legal status manifesting connectedness, dependence of the opposing subject as the actions of the authorized entity inevitably affect his or her interest. The author identifies the subjects (participants) in such relations and analyzes the peculiarity of their interaction that is manifested in a bilateral (mutual) legal relationship. The paper demonstrates the rights-obligations status of the participants of such relations through direct and reverse legal relations. The State acts not only as a holder of power, but also as the main guarantor of the rights and legitimate interests of all citizens. The article scrutinizes the content of the legitimate interest of the taxpayer based on the fundamental principles of tax law and determining the lawmaker’s behavior.Based on the analysis of the legal relationship between a public law entity and the taxpayer, the author outlines the boundaries of discretionary powers and criteria of discretion of the legislator in the process of imposition of taxes. The tools of reasonable deterrence of fiscal appetite include legal requirements, as well as constitutional and legal justification of legislative decisions.The author emphasizes the importance of active involvement of the taxpayer in the process of regulatory control of legislative provisions.

scholarly journals The concept and content of legal responsibility of spouses for failure to fulfill aliment obligations in family law

2021 ◽  
pp. 94-97
Author(s):  
A.M. Buryachenko
Keyword(s):  
Child Support ◽  
Scientific Literature ◽  
Family Law ◽  
Legal Responsibility ◽  
Scientific Article ◽  
Legal Doctrine ◽  
The Family ◽  
The Right ◽  
Family Code ◽  
Relevant Section

In a scientific article, the author conducted a scientific study of the concept and content of legal liability of spouses for non-performance of alimony obligations in family law. Based on the study, the author concluded that the Family Code of Ukraine does not contain a rule on the liability of the obligated spouse for failure to maintain an incapacitated spouse or a spouse in need of maintenance in connection with the upbringing of young children. From the content of Art. 196 of the Family Code of Ukraine, it is not clear whether it applies only to cases of non-performance of child support obligations, as follows from the finding of this rule in the relevant section of the Family Code of Ukraine. It is necessary to agree with the opinion expressed in the legal doctrine on the application of the provisions of Art. 196 of the Family Code of Ukraine for all alimony relations, in this regard, we propose to make appropriate changes to this article. In this case, in case of arrears due to the fault of the spouse, who is obliged to pay alimony by court decision or under the maintenance agreement, the spouse-recipient of alimony has the right to collect a penalty (penalty), and in case of late payment, due to illness or injury of the other spouse due to the payer’s fault, such payer is obliged to pay the amount of arrears at the request of the recipient of expenses, taking into account the established inflation index for the entire period of delay, as well as three percent per annum of the overdue amount. Although Art. 78 of the Family Code of Ukraine defines only three conditions of the spousal maintenance agreement: conditions, amount and terms of alimony, however, as stated in legal doctrine, such a condition as liability for non-performance of the maintenance agreement may also be determined by the parties. Unfortunately, the Family Code of Ukraine does not provide for a contractual procedure for determining alimony obligations to actual and former spouses, in this regard, in the scientific literature it is proposed to supplement the relevant provisions of Art. Art. 78 and 91 of the Family Code of Ukraine. In addition, the legislation of Ukraine in some cases provides for administrative liability for non-payment of alimony for the maintenance of one of the spouses, as well as liability in the form of one of the temporary restrictions set by the Law of Ukraine “On Enforcement Proceedings”.

Public administration in the activity of the court apparatus: approaches to the formation of concept

2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Gulac Olena ◽  
◽  
Shcherbak A.V. ◽  
Keyword(s):  
Public Administration ◽  
Organizational Support ◽  
Judicial System ◽  
Scientific Article ◽  
Judicial Reform ◽  
Administration Of Justice ◽  
Legal Nature ◽  
Definition Of ◽  
The Right ◽  
Independent Work

The article analyzes the scientific approaches to the content of the concept of «public administration», «public administration in the activities of the court staff». It is noted that the establishment of the essence of public administration, its features and the actual formulation of the definition of public administration in the court staff, which would fully reflect its legal nature, is the most pressing issue in the light of judicial reform. It is argued that a separate component of building the organizational structure of the court staff is the established practice of organizing activities in each court, taking into account which, the court administration develops and approves standard staffing schedules for each group of courts; on the basis of the maximum number of civil servants and technical staff, the staffing schedules of courts are approved by the heads of their staff and chairmen of courts. It is proved that public administration in the activity of the court staff has not been studied in detail. Doctrinal teachings on the understanding of administration in the judiciary are in many cases opposite and ambiguous. When characterizing public administration in the judicial system, the semantic load is focused on the characteristics of: «organizational support of the courts», «judicial management», «organizational management of courts», administrative relations that exist in the judicial system. Also, the scientific article analyzes the content of the concept of «public administration in the court staff», where we argue that public administration in the court staff is designed primarily for quality organizational support for timely, complete, public and independent work of the court. Therefore, ensuring the functioning of the courts is not only the procedure of justice itself, but first of all organizational support. Efficiency, efficiency, accessibility are a direct impact on the performance of judges directly, and this, accordingly, a positive reputation of the judiciary among the population. Creating the right regulator of the administration in the courts is the key to meeting the requirements of society and ensuring the smooth operation of the judicial system as a whole. Keywords: court, public administration, public administration, court apparatus, the administration of justice

scholarly journals ON THE STATE REGISTRATION OF A RIGHT: ON THE EXAMPLE OF THE RIGHT OF THE SURVIVING SPOUSE TO A SHARE IN JOINT PROPERTY PURSUANT TO PARAGRAPH 2 CLAUSE 4 ARTICLE 256 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION

2020 ◽  
Vol 3 ◽  
pp. 44-47
Author(s):  
Kamil M. Arslanov ◽  
Keyword(s):  
Russian Federation ◽  
General Rule ◽  
Civil Code ◽  
The State ◽  
Civil Proceedings ◽  
Legal Nature ◽  
The Russian Federation ◽  
State Registration ◽  
The Right ◽  
Joint Property

In the course of the ongoing reform of civil legislation the Civil Code of Russian Federation was amended in 2018, including Art. 256 (paragraph 2, item 4) regarding the legal fate of common joint property of spouses after the death of one of them. In the notarial practice the question arose in this regard as to whether the surviving spouse can be considered the owner of the property in the absence of state registration of the ownership right and, accordingly, in the future to be the heir to such property. This predetermines the question about the meaning of the state registration itself as a legal procedure in civil proceedings. It is concluded that the state registration for the case of paragraph 2, item 4 of Art. 256 of the Civil Code of the Russian Federation is not of a legal nature and has a procedural meaning of formalization of legal relations. Thus, this is one of the exceptions from the general rule on the need for state registration for the recognition of the existence of ownership of real estate.

scholarly journals Normative activities of local councils in Ukraine

2018 ◽  
Vol 6 (5) ◽  
pp. 33-40
Author(s):  
B. V. Kalynovskyi ◽  
T. O. Kulyk
Keyword(s):  
Executive Branch ◽  
Scientific Article ◽  
Judicial Process ◽  
Public Authorities ◽  
Legal Nature ◽  
Principles Of Justice ◽  
Democratic Principles ◽  
Judicial Procedure ◽  
The Right ◽  
High Level

The scientific article is devoted to the research of theoretical and practical aspects of normative activity of local councils in Ukraine. The scientific sources and legal acts are researched and the work of local councils in the development, adoption, entry into force and repeal of acts of local councils is analyzed. Thanks to the conclusions made, the suggestions and recommendations for improving the national legislation and the practice of functioning of local councils in the process of normative activity are formulated.The adoption by local councils of decisions not only on the basis of law but also with the obligatory consideration of the principles of justice testifies to a high level of legal awareness and legal culture of representative bodies of local self-government, comprehensive and full consideration of the interests of the territorial community, which they are authorized to represent. This will significantly contribute to the rule of law and civil society in Ukraine.It is the judicial procedure for the recognition of unlawful acts, including local public authorities, that reflects the implementation of democratic principles, the prevention of the concentration of power in one body or the abuse of powers, since the giving of a body, more likely to the executive branch, to abolish acts of lower organs or acts of local self-government in practice can only lead to a dishonest, not in the interests of citizens, the adoption of appropriate decisions. The judicial process, in accordance with its legal nature, obliges the parties to compete, to provide arguments and evidence, gives the right to the relevant body to defend the lawfulness of its position, and also with levers, in the event of violations of the law, to apply certain measures to bring the perpetrators to justice.By their legal nature, acts of local public authority are subordinate legal acts and, in accordance with the principles of the construction and functioning of the legal system of Ukraine, they belong to a unified system of normative legal acts in Ukraine.

scholarly journals THE GREAT MOVE TOWARDS OPENNESS IN ADOPTION

2010 ◽  
Author(s):  
N Da Rocha
Keyword(s):  
South Africa ◽  
South African ◽  
Adoptive Parents ◽  
Adoptive Parent ◽  
Adoption Process ◽  
Adopted Child ◽  
Major Step ◽  
Birth Parents ◽  
New Concepts ◽  
The Right

Many noteworthy changes have occurred in South African adoption law in the recent past: With the enactment of the Children’s Act, various new concepts have been provided for. A post-adoption agreement is one such concept. This provision allows the Children’s Court to grant an order confirming an agreement whereby the biological parent/s or guardian/s of a child would have the benefit of either communication or contact with the adopted child, or the right to be provided with certain information concerning such child. An application for judicial approval of a post-adoption agreement is brought before the court simultaneously alongside the adoption order. This is a major step towards the concept widely known in the international community as ‘openness’ in the adoption process, and away from the secrecy which dominated adoptions in the past. Currently in South Africa, adoption may be described as an ‘... order [which] has the effect of creating a legal relationship between the adoptive parent and the adopted child in the interests of the child.’ This involves the severing of legal ties between the birth parents and their child, relinquishing all parental rights and responsibilities and handing them over to the adoptive parents. Therefore in the eyes of the law, the adopted child is, for all purposes, the child of the adoptive parent/s. Due to the fact that this is the first time the South African legislature has sought to provide for and regulate post-adoption contact, this article serves as an exploration into the new possibilities and struggles South Africa may face in this regard.

scholarly journals The Applicability of the Right to a Fair Trial in Civil Proceedings: The Experience in Ukraine

2021 ◽  
Vol 4 (1) ◽  
pp. 199-222
Keyword(s):  
Case Law ◽  
Fair Trial ◽  
Protection Measures ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Legal Nature ◽  
Positive Duties ◽  
Judicial Procedures ◽  
The Right ◽  
Substantive Law

In this note, the author attempts to prove that the right to a fair trial is essentially a substantive right; that is, a right that combines the manifestations of a fundamental right. At the same time, this right imposes some positive duties on the State to provide for it. It has national and supranational regulations, and at the same time reflects subjective law and axioms, as well as elements of procedural and substantive law. Attention is drawn to the fact that in Ukraine the legal nature of this right is implemented only partially, since neither legislation nor judicial practice recognize it as an independent object of protection. Taking into account the provisions of Para 1, Art. 6 of the ECHRs and the case law of the ECtHR , the research proposes to define the scope of the applicability of the right to a fair trial proceeding from: (1) legally bound subjects, which may include not only courts within the judicial system of the country concerned on the basis of the law, but also other jurisdictional and quasi-judicial bodies; and (2) the procedures in which the guarantees of a fair trial must be observed. Depending on the existence or absence of a dispute over the rights in them the latter is divided into ‘disputed’, ‘conditionally disputed’ or ‘indisputable’. It is proved that the requirements of Art. 6, Para 1 of the ECHR do not apply to them, but that they are mandatory under the first two procedures. An attempt to analyse the recent positions of the ECtHR on the possibility of including protection measures in the scope of the application is made. Also, the author determines which of those protection measures provided in national law falls within the scope of this regulation. Furthermore, the author draws attention to the fact that the rights and duties to protect a person who is invoked must be ‘civil in nature’ in order to be covered by the guarantees of a fair trial. On the basis of certain criteria the author identifies procedures in the national legal system within which the right to a fair trial must be guaranteed. Keywords: a right to a fair trial, substantive law, scope of applicability of the fair trial right, court, established by law, judicial procedures, legal dispute, diversification of judicial procedures, ‘civilistic’ rights and duties.

scholarly journals Issues of person’s marriage age under the current Family Code of Ukraine

2021 ◽  
Vol 1 (1) ◽  
pp. 124-128
Author(s):  
Krystyna Rezvorovych
Keyword(s):  
Family Law ◽  
Legal Regulation ◽  
Scientific Article ◽  
Main Criterion ◽  
Marriage Age ◽  
The Family ◽  
Minimum Age ◽  
The Right ◽  
Age Of Marriage ◽  
Family Code

The scientific article analyzes the issue of marriage age of a person under the legislation of Ukraine. The historical retrospective of this issue and the experience of legal regulation of other countries are also explored. It is noted that the marriage age in all states is approximately the same. Although in some countries, as a whole, no minimum age is required for a marriage union. Marriage must be reached on the day the marriage is registered, which means that a person who has not yet reached the marital age but can reach it no later than one month after the date of application. Family law provides for the possibility of granting the right to marriage to a person who is not yet married. Marriage to a person under the age of 18 is a matter for the court. According to the law, the limit to which the marriage age can be clearly set, but the specified norm of family law does not even contain an approximate list of exceptional cases, which is the basis for granting the right to marriage to a person who has not reached the age of marriage. It is proposed to make provision in Article 23 of the Family Code of Ukraine, which would provide an approximate list of reasons why persons may marry before they reach the marriageable age, namely: birth of a child, pregnancy, cohabitation, serious illness, and any other circumstances that justify and make expeditious marriage expedient. Parental consent is not required to resolve the issue of reducing the age of marriage. However, their position on the matter should be clarified in the lawsuit. Parents' opinion may help to establish the true circumstances of the case and to determine whether the granting of this right is in the interests of the minor, since this is the main criterion for satisfying the application for the right to marry.

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