GAP IN THE LEGISLATION AND WAYS TO OVERCOME

2017 ◽  
Author(s):  
Olena Dashkovska ◽  
◽  
Vasily Demchenko ◽  
Vitalii Yavorskyi ◽  
◽  
...  
Keyword(s):  
Law Enforcement ◽  
Social Relations ◽  
Legal Regulation ◽  
Legal Norm ◽  
Private Law ◽  
Basic Principles ◽  
The Law ◽  
Law And Legislation

The article analyzes the concepts of "gaps in law" and "gaps in legislation", outlines the general features of these concepts, identifies the main causes of the emergence and existence of gaps in legislation and law. Emphasis is placed on the fact that gaps in the law take place in the legal regulation of only those social relations that have the character of legal. The main ways to eliminate and overcome gaps are considered, their differences are considered, it is concluded that gaps in law and legislation can be overcome by analogy of law and analogy of legislation. The main characteristics of the application of these means of overcoming gaps are determined. Attention is paid to the analogy of law as an exclusive means of legal influence. It is noted that by means of analogy the rights are not eliminated, but only gaps in the law are promptly overcome. It is concluded that it is used only when it is not possible to find such a legal norm. The analogy of the legislation is considered as a specific means of making a legally significant decision in case of gaps in the legislation relating to the specific case. The conclusion about the universality of such a method is made. The basic principles of application of analogy of legislation are stated. It is determined that the analogy of the law applies to relations that are not regulated by law, but should be in the field of legal regulation. It is emphasized that the analogy of legislation is used mainly by judicial bodies in their law enforcement acts, usually to clarify and supplement legislative provisions in the areas of legal regulation, which have gaps. It is noted that the analogy must comply with the fundamental principles of law. It is noted that the analogy of law, as well as the analogy of legislation, are inherent exclusively in private law areas of legal regulation. The article concludes that gaps in law and legislation can be overcome by analogy of law and analogy of legislation, respectively. Certain postulates of application of these means are defined.

scholarly journals Forms of Operative and Service Activities of the Ukraine’s State Border Guard Agencies (Units): Concepts and Legal Regulation

2019 ◽  
Vol 74 (3) ◽  
pp. 18-23
Author(s):  
V. V. Polovnikov
Keyword(s):  
Law Enforcement ◽  
Social Relations ◽  
Legal Regulation ◽  
The State ◽  
State Official ◽  
Individual Concepts ◽  
Service Activities ◽  
The Law ◽  
Definition Of ◽  
Enforcement Activity

As the objective of this article, the characteristics of the concept and legal regulation of the Ukrainian state border guard agencies’ (units) operative and service activities forms are chosen. Such activity is a type of law enforcement activity. The level of the rule of law compliance of such agencies (units) officials and official persons’ service activities depends on the state of its legal regulation. Based on the analysis of the current Ukrainian legislation and scientific views, the author characterized such forms of operative and service activities as border guard and border control. The author's definition of individual concepts is formulated. In particular, according to the author, Ukraine’s state border guard unit is SBGSU state border guard agency’s structural unit, which is responsible for the state border’s certain section protection. The operative and service activities of such units is one of the forms of its state (official) external activity, which is implemented in the border guard service process and carrying out other measures, in accordance with the law enforcement and other SBGSU credentials, concerning persons and legal entities not subordinate to this unit, which implies the origin of all kinds of social relations. The form of operative and service activities of the respective unit is a system of interrelated measures reflecting the content of law enforcement and other credentials of the State Border Guard Service of Ukraine in a certain direction of its state (official) external activities. The forms of operative and service activities are categorized. It is offered to regulate these concepts at the level of the Law of Ukraine “On the State Border Guard Service of Ukraine” and by-laws.

scholarly journals Organizational and technical peculiarities of presenting for identification

2021 ◽  
pp. 40-52
Author(s):  
Vitaliy Viktorovich Pomazanov ◽  
Sergei Ivanovich Gritsaev ◽  
Sergei Grigorevich Stepanenko
Keyword(s):  
Law Enforcement ◽  
Social Relations ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Criminal Investigation ◽  
Effective Implementation ◽  
Criminal Procedure Law ◽  
Detailed List ◽  
The Russian Federation ◽  
The Law

The research object is social relations connected with the legal regulation, organization and the tactics of identification. The authors consider the types of identification mentioned in the criminal procedure law, and those used during criminal investigation. Having compared their volume and contents, the authors note that the number of types of identification used in the work of law-enforcement bodies is larger than that of those formalized in the Criminal procedure Law of the Russian Federation. This situation doesn’t violate the law, since such types of identification as the identification of animals, territories, etc. are the components (subtypes) of the types of identification formalized in the law. The authors study the correlation between the organization and tactics of presenting for identification and attempt to systematize the investigator’s actions during the preparation and organization of various types of presenting for identification. The scientific novelty of the research consists in the formation of tactical techniques of presenting for identification through the lens of registration and correlation of subjects of the forensic tactics (the most rational ways of organizing an investigation  - the problem scope) and the organization of criminal investigation (the creation of a structure of the investigative activities, the conditions for its effective implementation, and the investigation management - the organizational and administrative scope). This approach helps to create a detailed list of tactical recommendations for the organization, preparation and realization of various types of presenting for identification with account for the specificity of the object of identification, and their classification in accordance with the stages of this investigation.   

scholarly journals Imposition of cumulative administrative penalty: technical-legal defects and law enforcement problems in the sphere of forest conservation

2021 ◽  
pp. 1-13
Author(s):  
Anna Viktorovna Korepina
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Social Relations ◽  
Legal Regulation ◽  
Scientific Article ◽  
Simplified Approach ◽  
The Russian Federation ◽  
The Law ◽  
Administrative Penalty ◽  
Administrative Responsibility

The subject of this research is the social relations arising in the context of application of administrative sanctions for violating forestry legislation. The object of this research is the legislation on administrative offenses of the Russian Federation and foreign countries, law enforcement and judicial practice. The author observes the ambiguity of application of legislation on administrative offences by the state forestry departments in some constituent entities of the Russian Federation. Therefore, this scientific article indicates one of the relevant issues that stir up disputes among the law enforcement agencies – imposition of cumulative administrative penalty for violating forestry legislation. Using the universal dialectical, descriptive, and hermeneutical methods, the author analyzes the current administrative legal norms that regulate the procedure for imposition of cumulative administrative penalty. Special attention is given to the factors of ambiguity in law enforcement practice in terms of imposition of cumulative administrative penalty, which has developed due to the flaws in legal writing: 1) the absence of conceptual scientific developments dedicated to imposition of administrative penalty for cumulative administrative offenses; 2) simplified approach towards legal regulation of certain institutions of administrative responsibility that generates gaps in the legislation on administrative responsibility, which must filled in by law enforcement practice; 3) inappropriate interpretation of norms of the Article 4.4. of the Code of the Russian Federation on Administrative Offences by the law enforcement, and namely, judicial bodies. The scientific novelty consists in recommendations for improving the provisions of the Code of the Russian Federation on Administrative Offenses in this sphere. The conclusions are based on the formal-legal and logical methods of research.

Zur Frage der doktrinellen Auslegung des Artikels 61 Pkt. 3 der Verfassung der Republik Kasachstan

2021 ◽  
Vol 67 (2) ◽  
pp. 133-144
Author(s):  
Ermek B. Abdrasulov
Keyword(s):  
Public Relations ◽  
Social Relations ◽  
Legal Regulation ◽  
Legislative Process ◽  
Legal Norms ◽  
The Law ◽  
The Republic ◽  
Definition Of ◽  
The Relationship ◽  
National Business

This article examines the issues of differentiation of legislative and subordinate regulation of public relations. It is noted that in the process of law-making activities, including the legislative process, practical questions often arise about the competence of various state bodies to establish various legal norms and rules. These issues are related to the need to establish a clear legal meaning of the constitutional norms devoted to the definition of the subject of regulation of laws. In particular, there is a need to clarify the provisions of paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan in terms of the concepts "the most important public relations", "all other relations", "subsidiary legislation", as well as to establish the relationship between these concepts. Interpretation is also required by the provisions of p. 4 of Article 61 of the Constitution in terms of clarifying the question of whether the conclusion follows from mentioned provisions that all possible social relations in the Republic of Kazakhstan are subject to legal regulation, including those that are subject to other social and technical regulators (morality, national, business and professional traditions and customs, religion, standards, technical regulations, etc.). Answering the questions raised, the author emphasizes that the law and bylaws, as a rule, constitute a single system of legislation, performing the functions of primary and secondary acts. However, the secondary nature of subsidiary legislation does not mean that they regulate "unimportant" public relations. The law is essentially aimed at regulating all important social relations.

scholarly journals IMPLEMENTATION OF LEGAL RESPONSIBILITY I N THE LAW ENFORCEMENT BLOCK OF THE MECHANISM OF LEGAL REGULATION

2020 ◽  
pp. 101-114
Author(s):  
И.А. Кузьмин
Keyword(s):  
Theoretical Model ◽  
Law Enforcement ◽  
Legal Liability ◽  
Legal Regulation ◽  
Legal Responsibility ◽  
Legal Remedies ◽  
The Law ◽  
Problematic Situations

В статье приводятся промежуточные результаты исследования вопросов реализации юридической ответственности. Сформулированы подходы к пониманию механизма правового регулирования и его содержания. Установлены закономерности взаимодействий между правовыми средствами в процессе реализации юридической ответственности. Предложена общетеоретическая модель реализации юридической ответственности в правоохранительном блоке механизма правового регулирования. Проанализированы проблемные ситуации, при которых нарушаются принципы юридической ответственности и разрушаются системные связи между правовыми средствами. Annotation: The article presents the interim results of research on the realization of legal liability. Approaches to understanding the mechanism of legal regulation and its content are formulated. The patterns of interactions between legal remedies in the process of realization legal liability have been established. A general theoretical model of the realization of legal liability in the law enforcement block of the mechanism of legal regulation is proposed. The author analyzed problematic situations in which the principles of legal liability are violated, and the cases in which the systemic connections between legal remedies are destroyed.

scholarly journals ADMINISTRATIVE AND LEGAL REGULATION OF THE FUNCTIONING OF JUVENILE JUSTICE IN THE ENSURING OF CHILD RIGHTS

2020 ◽  
Vol 33 (20) ◽  
pp. 77-81
Author(s):  
N. Yu. Veselov
Keyword(s):  
Juvenile Justice ◽  
Social Relations ◽  
Legal Protection ◽  
Legal Regulation ◽  
Main Body ◽  
Criminal Proceedings ◽  
Rights Of The Child ◽  
The Law ◽  
Keywords Child ◽  
Legal Mechanism

Problem setting. Legal regulation is an integral component of the administrative and legal mechanism for ensuring the functioning of juvenile justice, through which the state regulates relevant social relations through law and the totality of legal means. Recent research and publications analysis. The following Ukrainian scientists tried to conceptually solve these issues: Ya. Kvitka, V. Levchenko, O. Maksimenko, N. Lesko, I. Ishchenko, O. Navrotsky. Paper objective. The purpose of the study is to obtain scientific and applied results on the presentation of options for legislative support of juvenile justice in other countries and to formulate proposals for improving the administrative and legal regulation of juvenile justice in Ukraine. Paper main body. The analysis of the legislation of other countries indicates that there are several conditional models of legal regulation of the peculiarities of ensuring the rights of the child in the exercise of juvenile justice. This division is based on the following criteria, such as the existence of a law in the country that establishes the general principles of the judicial and extrajudicial, administrative and legal protection of children’s rights; the existence of a separate law on juvenile justice, which codifies all the rules of law that determine the peculiarities of criminal proceedings against children; the existence of a separate law on juvenile justice, but which establishes the general principles of the operation of juvenile justice, public administration in this area, prevention of offenses, etc. Conclusions of the research. The expediency of adopting the Law on Juvenile Justice in Ukraine, which, in its content, will mainly be an act of administrative and legal nature, the Law «On Ensuring the Rights of the Child in Ukraine», the Law «On the Ombudsman of Ukraine» is substantiated. Keywords: child, minor, legal regulation, administrative law, juvenile justice, justice.

scholarly journals The positive legal uncertainty as a technical and legal method of exposition of law

2021 ◽  
Vol 21 (4) ◽  
pp. 437-444
Author(s):  
Ekaterina Yu. Arkhipova ◽  
Keyword(s):  
Social Relations ◽  
Self Regulation ◽  
Historical Analysis ◽  
Legal Regulation ◽  
Russian Society ◽  
Legal Method ◽  
Legal Uncertainty ◽  
The Law ◽  
Market Relations ◽  
Law Making

Introduction. In modern Russian society with high rates of development of market relations, digitalization of the main spheres of life, popularization of the ideas of self-organization and self-regulation, legal uncertainty acts as a bipolar phenomenon, which is not only a consequence of law-making errors, but an effective technical and legal way of presenting regulations. Theoretical analysis. The historical analysis of the formation and development of ideas of certainty and uncertainty in jurisprudence showed that these categories are considered as universal phenomena characteristic of any matter. It was established that absolute certainty is unattainable and not always in demand, while legal uncertainty is inherent in the very nature of law. Еmpirical analysis. It was revealed that the need to ensure mobility and flexibility of legal regulation imposes the task of a reasonable use of legal uncertainty as a technical and legal way of presenting law on the law-making subject, which is reflected in the current legislation. Results. Legal uncertainty is an objective and inevitable phenomenon, and the total regulation of social relations is not always justified. The law is being improved on the basis of the principle of transition from the casuistic to the abstract, which proves its universality.

DIGITAL FINANCIAL TOOLS FOR SOCIALIZING PRIVATE LAW

2021 ◽  
pp. 208-224
Author(s):  
Julia S. Kharitonova ◽  
◽  
Larisa V. Sannikova ◽  
Keyword(s):  
Public Relations ◽  
The United States ◽  
Legal Regulation ◽  
Private Law ◽  
Property Relations ◽  
The World ◽  
The Law ◽  
Private Investors ◽  
The Way

Nowadays, the law is being transformed as a regulator of relations. The idea of strengthe-ning the regulatory role of technologies in the field of streamlining public relations is making much headway in the world. This trend is most pronounced in the area of regulation of private relations. The way of such access to the market as crowdfunding is becoming increasingly widespread. The issuing of the so-called secured tokens is becoming popular for both small businesses and private investors. The trust in new ways of attracting investments is condi-tioned by the applied technology - the use of blockchain as a decentralized transparent data-base management system. Under these conditions, there is such a phenomenon as the democ-ratization of property relations. Every individual receives unlimited opportunities to invest via technologies. Thus, legal scholars all over the world face the question about the role of the law and law in these relations? We believe that we are dealing with such a worldwide trend of regulating public relations as the socialization of the law. Specific examples of issuing tokens in Russia and abroad show the main global trends in the transformation of private law. The platformization of economics leads to the tokenization and democratization of property relations. In this aspect, the aim of lawyers should be to create a comfortable legal environment for the implementation of projects aimed at democratizing property relations in Russia. The socialization of private law is aimed at achieving social jus-tice and is manifested in the creation of mechanisms to protect the rights of the weak party and rules to protect private investors. Globalization requires the study of both Russian and foreign law. To confirm their hypothesis, the authors conducted a detailed analysis of the legislation of Russia, Europe and the United States to identify the norms allowing to see the process of socialization of law in the above field. The generalization of Russian and foreign experience showed that when searching for proper legal regulation, the states elect one of the policies. In some countries, direct regulation of ICOs and related emission relations are being created, in others, it is about the extension of the existing legislation to a new changing tokenization relationship. The European Union countries are seeking to develop common rules to create a regulatory environment to attract investors to the crypto industry and protect them. Asian countries are predominantly developing national legislation in isolation from one another, but most of them are following a unified course to encourage investment in crypto assets while introducing strict rules against fraud on financial markets. The emphasis on the protection of the rights of investors or shareholders, token holders by setting a framework, including private law mechanisms, can be called common to all approaches. This is the aim of private law on the way to social justice.

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