scholarly journals The role of judges' assessment of legally significant circumstances in civil and administrative proceedings: on the example of Kaliningrad Oblast

2020 ◽  
pp. 1-17
Author(s):  
Valentin Valentinovich Balanovskii
Keyword(s):  
Mathematical Methods ◽  
Legal Proceedings ◽  
Civil Proceedings ◽  
The Supreme Court ◽  
The Subject ◽  
Kaliningrad Region ◽  
Administrative Proceedings ◽  
Court Of First Instance ◽  
Empirical Material

The main purpose of the article is to demonstrate on the matter of empirical material the importance of judges’ assessment of legally significant circumstances of the case for Russian civil and administrative proceedings. The subject of the research is the norms of the current procedural Russian legislation, the texts of the appellate rulings on cancellation of the decisions of the courts of first instance in civil and administrative cases of the Kaliningrad region, which entered into force in the period from 01.01.2017 to 31.12.2020, and the data of judicial statistics of the Judicial Department at the Supreme Court of the Russian Federation for 2017-2019. The author uses sociological and mathematical methods, as well as methods of content analysis of the texts of appeal rulings on the cancellation of decisions of the courts of first instance in civil and administrative cases. The novelty of the study is due to the fact that nobody has previously collected and analyzed statistical data on specific grounds for the complete cancellation of decisions of the courts of first instance in appeal order in civil and administrative cases in the Kaliningrad region. As a result of the analysis of specific empirical material, the author establishes that the judges' assessment of legally significant circumstances plays a key role for contemporary Russian legal proceedings. This is especially true for civil proceedings. This conclusion follows from the fact that every 25th decision of the court of first instance in civil proceedings is subject to complete cancellation. In 80% of such cases, the court's incorrect assessment of the legally significant circumstances of the case is the only or one of several grounds for cancellation.

scholarly journals Principles of legal proceedings in the Code of administrative proceedings and in the Civil procedure code

2020 ◽  
Vol 4 (3) ◽  
pp. 139-147
Author(s):  
Lydia A. Terekhova
Keyword(s):  
Characteristic Feature ◽  
Civil Procedure ◽  
Independent System ◽  
Legal Proceedings ◽  
Administrative Procedure ◽  
Procedure Code ◽  
Civil Proceedings ◽  
Rules Of Evidence ◽  
The Subject ◽  
Administrative Proceedings

The subject. The system of principles of legal proceedings is one of the indicators of the independence of the type of legal proceedings. The article analyzes the general and distinctive features of the principles enshrined in the Russian Civil Procedure Сode and the Code of Administrative Procedure. The purpose of the article is confirmation or confutation of the hypothesis that there is no independent system of principles of administrative proceedings that differs from the system of principles of civil proceedings. The methodology of the study includes the formal legal method, analysis, synthesis. The main results. All of the principles enshrined in the Code of Administrative Procedure are also enshrined in the Civil Procedure Code except some minor characteristics. So, the active role of the court, involving a number of exceptions to the usual rules of evidence, was also characteristic of the regulation of the consideration of cases arising from public legal relations in the Code of Civil Procedure. The court’s active actions to determine the subject of evidence, to recover evidence are general rules of evidence for all types of proceedings. These rules existed both before the adoption of the Code of Administrative Procedure and after it. But the specifics of the execution of judicial acts adopted in cases of administrative proceedings require special attention. A characteristic feature in the consideration and resolution of most administrative cases is the immediate execution of decisions enshrined directly in the Code of Administrative Procedure. Such a rule can be considered as a priority of immediate execution, which is a characteristic feature of administrative proceedings. The author doubts about the need for normative consolidation of the principles, as well as the need for a special list of principles of administrative legal proceedings in separate article of the procedural code. Conclusons. The absence of an independent system of administrative procedural principles confirms the thesis that administrative proceedings cannot be considered an independent branch of law separated from civil proceedings law. However, the priority of immediate execution of a court decision is a characteristic feature (perhaps even a principle) of administrative proceedings.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

On the issue of the adversarial process in modern civil proceedings

2021 ◽  
pp. 537-549
Author(s):  
Lyudmila A. Volchikhina
Keyword(s):  
Trial Procedure ◽  
Civil Proceedings ◽  
Definition Of ◽  
Court Of First Instance ◽  
Three Components

The study attempts to expand the content of the definition of the adversarial process in civil proceedings. Conclusion: the adversarial process in civil proceedings includes three components, which include the pre-trial activities of the parties to resolve the material legal conflict that has arisen, the direct judicial consideration of the material legal conflict that has arisen, and the activities of the parties after the judicial resolution of the conflict. Examining the content of the adversarial process when considering and resolving the material legal conflict that has arisen by the court, it is concluded that, by managing the process, the court is the organizer of the adversarial process at all stages of the consideration of the case in the court of first instance. The role of the parties in the adversarial process is limited to their participation in the proving process. Examining the adversarial process of the parties to resolve a substantive conflict before going to court, it is proposed to the legislator to expand the list of categories of cases in which the use of the pre-trial procedure for resolving a dispute is mandatory. Investigating changes in the procedural form of civil proceedings concerning the obligation of the plaintiff to refer other persons involved in the case, copies of the statement of claim and the actions of the parties to disclose evidence, we consider it expedient to secure by the legislator the application of these rules in the adversarial process of the parties before they apply judicial forms of pro-tection.

The Origins of Judicial Review in Canada

1983 ◽  
Vol 16 (1) ◽  
pp. 115-134 ◽  
Author(s):  
Jennifer Smith
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The Supreme Court ◽  
The Subject

abstractThe origins of judicial review in this country have been the subject of debate among legal scholars. This article examines the conflicting accounts provided by W. R. Lederman and B. L. Strayer, and attempts to assess them in the light of the Confederation debate, 1864–1867, and the debate surrounding passage of the Supreme Court Act in 1875. It arrives at these considerations: that the intentions of the founders are of greater significance than has hitherto been suggested; that both the founders themselves and the legislators in 1875 held conflicting expectations on the role of the Supreme Court in constitutional matters; and that this conflict has left its mark on the court. The article concludes that reflection on the origins of judicial review ought to temper the enthusiasm with which many Canadians have greeted the advent of the Charter of Rights and Freedoms.

scholarly journals Instruments for adjusting Algeria's fiscal policy to market economy

2020 ◽  
pp. 31-44
Author(s):  
Anna Vladimirovna Bobrova ◽  
Abderraouf Abassi
Keyword(s):  
Market Economy ◽  
Oil And Gas ◽  
Tax Revenue ◽  
Mathematical Methods ◽  
Vertical Data ◽  
State Tax ◽  
Fiscal System ◽  
The Subject ◽  
Oil And Gas Sector

The subject of this research is the fiscal system of Algeria, namely the principles and methods of formation of consolidated budget of the country and the role of tax revenue in development of market economy. The author describes the factors that influence the country’s fiscal system, as well as highlights the priority conditions for economic development of Algeria. The goal of this work consists in formulation of recommendations on improvement of the processes of budgeting and state tax planning in Algeria, as well as on overcoming the problems of a resource-oriented and state-regulated economy. The methodological framework contains the principles and methods of factor analysis that reveal the external and internal causes of establishment of the modern fiscal system in Algeria, mathematical methods of horizontal and vertical data analysis of consolidated budget; methods of induction and modeling in advancing proposals on the development of Algeria’s fiscal system. The novelty of this work lies in the suggestions on diversification of the economy by reducing the share of the oil and gas sector and sequestering budget deficit by reducing military spending, as well as shifting budget tax revenue towards direct taxes. The results of the research demonstrate the democratic model of fiscal system in Algeria, oriented towards market economy.

scholarly journals The Procedure of the Court Appealing the Actions of Officials Carrying out Operative-Investigative Activity: Regulation Problems and Perspectives of Improvement of Legal Procedure

2020 ◽  
Vol 16 (1) ◽  
pp. 84-92
Author(s):  
Vasilii V. Semenchuk
Keyword(s):  
Legal Regulation ◽  
District Court ◽  
Legal Proceedings ◽  
State Secret ◽  
The Subject ◽  
The Russian Federation ◽  
Closed Procedure ◽  
Administrative Proceedings ◽  
Appeal Procedure ◽  
Investigative Activity

The article deals with the issues of legal regulation and the actual implementation of the procedures for appealing against the actions of officials carrying out operative-investigative activity. It is noted that there is uncertainty in the choice of the type of legal proceedings (criminal or administrative) also as a level of the court for such complaints (court of the subject of the Russian Federation or district court). Another problem is related to the actual assignment responsibility for the plaintiffs to substantiate complaints about covert operative-investigative measures which, as a rule, leads to a refusal to consider them. The authors are invited to introduce a universal appeal procedure in the framework of administrative proceedings. The secret nature of the operative-investigative activity does not allow the plaintiff to fully substantiate the essence of his claims, so this task may be performed by the court. In order to preserve information constituting a state secret, it is necessary to introduce a closed procedure for dealing with such complaints.

scholarly journals Judicial Interpretation of the Tax Law Provisions and Protection of the Subjective Rights of Taxpayers – In the Light of Art. 153 of the Act on Proceedings Before Administrative Courts in Poland

2013 ◽  
Vol 33 (1) ◽  
pp. 77-99
Author(s):  
Anna Dumas ◽  
Piotr Pietrasz
Keyword(s):  
Crucial Role ◽  
Tax Law ◽  
Judicial Interpretation ◽  
Administrative Authority ◽  
Legal Assessment ◽  
The Subject ◽  
Administrative Courts ◽  
Administrative Proceedings ◽  
Subjective Rights

Abstract This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and the administrative authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland.

scholarly journals The Practice of Introducing Restrictions on the Right to Freedom of Peaceful Assembly within Administrative Proceedings and the Place of the Judicial Branch of Power in Determining the Admissibility of Such Restrictions

2020 ◽  
Vol 90 (3) ◽  
pp. 162-176
Author(s):  
М. А. Самбор
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Constitutional Court ◽  
Administrative Discretion ◽  
The Supreme Court ◽  
Executive Agencies ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Understanding

The author has researched the practice of the executive branch of power of Ukraine in establishing a collective (general) ban and restriction of the right to freedom of peaceful assembly under quarantine, as well as the place and role of the judicial branch of power represented by the Supreme Court and the Constitutional Court of Ukraine in determining the constitutionality of such restrictions and prohibitions. The powers of the Supreme Court on the constitutional submission to the Constitutional Court of Ukraine on the constitutionality of the Resolution of the Cabinet of Ministers of Ukraine “On quarantine to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2 and stages of weakening of anti-epidemic measures” dated from May 20, 2020 No. 392 on the establishment of a ban on the exercise of the right to freedom of peaceful assembly within administrative proceedings during the introduction of quarantine in Ukraine, as well as the justification of such a constitutional submission. It is important to analyze and form a legal understanding of the Decision of the Constitutional Court of Ukraine on the unconstitutionality of restricting and prohibiting the exercise of the right to freedom of peaceful assembly during quarantine within administrative proceedings – by adopting the relevant resolution by the Cabinet of Ministers of Ukraine, which was the result of administrative discretion of the highest agency in the system of executive agencies of Ukraine. In this regard, the study focuses on the motivation and validity of the decision of the agency of constitutional jurisdiction and understanding of those legal and social values that were the basis for the judges of the Constitutional Court of Ukraine while adopting the decision dated from August 28, 2020 No 10-r/2020.

On the issue of understanding administrative proceedings

2020 ◽  
pp. 135-140
Author(s):  
Valentin Nazarov ◽  
Tat’yana Akimova
Keyword(s):  
Russian Federation ◽  
Practical Implementation ◽  
Public Interests ◽  
Legal Norms ◽  
Legal Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of ◽  
Judicial Procedure ◽  
Administrative Proceedings

We point out some trends observed in the development of Russian justice. We note the features of the historical development of the state that have influenced the legislative consolidation of administrative legal proceedings. Exploring the main approaches to the definition of administrative legal proceedings, we conditionally combine them into three large groups and characterize each of them. The various positions of legal scholars on the legal nature of administrative legal proceedings are illustrated. It is indicated that with the adoption of the Code of Administrative Judicial Procedure, there was a separation of administrative proceedings from other types, the result of which is the creation of administrative and legal means to ensure and protect public interests as well as the practical implementation of constitutional legal norms on administrative legal proceedings. We specify that the independent nature of administrative legal proceedings is determined by the specifics of this process. The features characteristic for this type of legal proceedings are analyzed. We express an opinion on the need for a more clear and unambiguous formulation of the subject of regulation of the Code of Administrative Judicial Procedure of the Russian Federation and its normative consolidation. Despite the fact that more than four years have passed since the adoption of the Code, the controversy surrounding the subject of regulation of the Code of Administrative Judicial Procedure of the Russian Federation continues to this day. In addition, we reveal the most important results of the adoption of the Code of Administrative Judicial Procedure.

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