DISCUSSION QUESTIONS ON THE DEFINITION OF THE SUBJECT OF CIVIL PROCEDURAL LAW

2017 ◽  
Author(s):  
Оlena Shtefan ◽  
Keyword(s):  
Law Enforcement ◽  
Social Relations ◽  
Legal Protection ◽  
Legal Regulation ◽  
Judicial Reform ◽  
Procedural Law ◽  
History Of ◽  
The Subject ◽  
Definition Of ◽  
The Relationship

The subject of this article was one of the fundamental and debatable provisions of the doctrine of civil procedural law - its subject. The author on the basis of the analysis of scientific sources, the legislation carried out the retrospective analysis of formation and development of scientific thought concerning definition of a subject of civil procedural law. The paper identifies two main approaches to understanding the subject of the industry and elements of its structure. Analyzing the "narrow" approach to defining the subject of civil procedural law and certain areas of its coverage in the works of scholars, the author substantiates the position on the relationship between procedural activities and social relations that arise between the court and the parties. Particular attention is paid to the history of inclusion in the subject of civil procedural law enforcement proceedings. The author's position on the subject and system of civil procedural law is substantiated. The essence of the "broad" approach to the definition of the subject of the industry by including in its structure of non-jurisdictional forms of legal protection is revealed. The essence of two opposite tendencies in scientific researches concerning structure of a subject of civil procedural law is revealed: the first tendency is reduced to expansion of a subject at the expense of inclusion in it of economic procedural law, at ignoring independent character of this branch of law; the second - the narrowing of the subject of civil procedural law by removing from its structure of enforcement proceedings, the relations arising in the consideration of labor cases. The connection between the definition of the subject of civil procedural law and the jurisdiction of the court defined in the legislation is substantiated. It is proved that the tendency to narrow the subject of civil procedural law was embodied in the legislation of the country as a result of judicial reform in 2016, which led to conflicts in legislation and problems in law enforcement. Based on the theoretical model of determining the subject of legal regulation and using the analogy of determining its structure, the elements of the structure of the subject of civil procedural law are distinguished and its definition is formulated.

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.

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 CONTRADICTIONS BETWEEN SCIENTIFIC TERMINOLOGY AND THE TERMINOLOGY OF THE LEGISLATION ON THE DEFINITION OF SUBJECTS AND PARTICIPANTS IN THE ADMINISTRATIVE PROCESS

2019 ◽  
pp. 70-73
Author(s):  
I. L. Zheltobriukh
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
Public Law ◽  
Administrative Process ◽  
Scientific Terminology ◽  
Procedural Law ◽  
The Subject ◽  
State Of Affairs ◽  
Definition Of ◽  
Enforcement Activity

This paper explores the existing contradictions between the scientific terminology and the terminology of legislation regarding the definition of subjects and participants in the administrative process. It is noted that acquaintance with the scientific and educational- methodological literature shows that even today there is no clear justification of the relation between the terms “subject of administrative process” and “participant of administrative process”. The main reason for this state of affairs is due to differences in the laws of development of national administrative procedural legislation and the laws of development of science of administrative procedural law. It is concluded that there is a long-standing need to offer the scientific community and practitioners such a concept of relation between the terms “subject of administrative process” and “participant in administrative process”, which would reconcile the contradictions of the otological and epistemological terminology used in the CAS. The necessity to use in the science of administrative law and process justifies the concept according to which the administrative process should be considered as law enforcement activity of administrative courts related to the consideration and resolution of public law disputes. In such a case, the administrative court will always be the subject of the administrative court, whereas the parties, third parties, representatives, assistant judge, court secretary, court administrator, witness, expert, law expert, translator, specialist are only participants in the administrative process that is, persons involved in the enforcement of administrative law.

THE NOTION OF THE SYSTEM OF CIVIL PROCEDURAL LAW

2021 ◽  
Vol 11 (4) ◽  
pp. 13-26
Author(s):  
V.M. SHERSTYUK
Keyword(s):  
Internal Structure ◽  
Legal Regulation ◽  
Point Of View ◽  
Entire System ◽  
Procedural Law ◽  
The Subject ◽  
Definition Of ◽  
Constituent Elements

The study puts forward the thesis that the basis for the allocation of structural subdivisions of civil procedural law is mainly the subject of legal regulation. The complex internal structure of the system of this branch of law is due primarily to the diversity of civil procedural relations that constitute the subject of regulation of this branch of law. The work reveals the essential features of the concept of “system of civil procedural law”, defines the grounds for its structural subdivisions and their composition, gives the definition of this category. In particular, the author has formulated the idea that the system of civil procedural law is an internally coordinated set of civil procedural rules, institutions and other relatively independent structural subdivisions of this branch of law, naturally interconnected into a single whole due to the unity of civil procedural relations. Also in this study the point of view is expressed that each level of the system, as well as the entire system of civil procedural law as a whole, is characterized not only by typical features of its constituent elements, but also by their typical, regular relationships that constitute its structure.

scholarly journals Category “measure” in the theory of penal law

2021 ◽  
Vol 1 (11) ◽  
pp. 28-31
Author(s):  
V.K. BAKULIN ◽  
Keyword(s):  
Russian Federation ◽  
Legal Obligation ◽  
Procedural Law ◽  
Procedure Code ◽  
Penal Law ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of ◽  
Relationship Of ◽  
The Relationship

The article analyzes the philosophical category “measure”, which due to its universality and comprehensiveness finds expression in law, since subjective law and legal obligation are always a measure of the possible or necessary behavior of the subjects of legal relations. The relationship of the category “measure” with the institutions of criminal and criminal procedural law is shown. The article examines the demonstrations of this category in the institutions of the penal law, which makes it possible to formulate the definition of a measure in the penal law and systematize the existing ones. There is revealed the need to change the subject of the penal law as a branch of law in connection with the empowerment of criminal executive inspectorates with the authority to implement measures of procedural coercion, provided for by the Criminal Procedure Code of the Russian Federation.

scholarly journals On the question of the functions and tasks of legal custom

2020 ◽  
pp. 30-34
Author(s):  
Marian Bedrii
Keyword(s):  
Social Relations ◽  
Legal System ◽  
Legal Protection ◽  
Legal Regulation ◽  
Protective Function ◽  
Current State ◽  
Wide Range ◽  
The Subject ◽  
The One ◽  
The Individual

The article researches the functions and tasks of legal custom based on historical experience and the current state of legal life.The view represents that law and culture functions are realized through legal custom, as it is an important element of these phenomena.At the same time, it is noted that legal custom is characterized by a separate catalog of functions and tasks that need to be studied. Theregulatory, explanatory, protective, defensive, inflectional, reconstitutive, ideological-educative, identification-communicative, antimonopoly,and legal-resource functions of legal custom are analyzed. The administrative and organizational components of the regulatoryfunction of legal custom are highlighted. The preventive and restrictive components of the protective function of legal custom are cha -racterized. It is substantiated that these functions are inextricably linked with the tasks of legal custom.Based on the analyzed functions, the following tasks of a legal custom are allocated: the legal regulation of social relations; cla -rification of provisions of the legislation, acts of law enforcement, texts of agreements, terms and symbolic actions; legal protection ofpublic goods and values; providing opportunities to protect rights and freedoms; stabilization of the legal system, its protection fromill-considered and risky transformations; reproduction of the acquired legal experience in new conditions; ensuring the flexibility of thelegal system; influence on the worldview of the individual and society in general; determining the affiliation of the subject to a parti -cular community and maintaining communication between its members; prevention of monopoly in the legal system of a normativelegal act or other sources of law; formation of material for the systematization of law.It is argued that legal custom, as a social phenomenon, evolving in the process of history, performed a wide range of functionsthat correlated with its tasks. Not every period, people, or locality is characterized by a full set of analyzed functions and tasks, but itis worth noting the possibility of their implementation by the legal custom in general, as evidenced by past experience and the currentstate of legal relations. The results of the research, on the one hand, complement the understanding of the nature of legal custom, andon the other – prove the feasibility of further use of this source of law in modern legal systems.

scholarly journals THEORETICAL BASES OF EXPERT PREVENTION: CONCEPT AND TASKS

2019 ◽  
Vol 20 (2) ◽  
pp. 151-162
Author(s):  
N. Filipenko ◽  
O. Uhrovetskyi ◽  
O. Sharapova
Keyword(s):  
Law Enforcement ◽  
Law Enforcement Agencies ◽  
Important Place ◽  
Forensic Institutions ◽  
Special Knowledge ◽  
The Subject ◽  
Definition Of ◽  
Conceptual Foundations ◽  
The Relationship

The article analyzes conceptual foundations, views and ideas concerning the essence of expert prevention. The relationship between the concepts of «prevention» and «prevention», which is in contact with each other, is investigated, because one of the main problems of the criminal investigation of the phenomenon of expert prevention is the ambiguity of both scientific understanding and the practical application of the corresponding conceptual-categorical apparatus. It is emphasized that the essence of expert prevention is the influence of the relevant subjects on crime through the use of special professional knowledge. That is, to the subject of forensic examination, should include studies of circumstances on the basis of which can be and should be developed scientific, organizational and technical measures of preventive nature. Proven that among the tasks of preventive nature, which can be solved by the staff of judicial-expert institutions, the development of aimed at forecasting in criminalistic aspects of circumstances contributing to the commission of crimes, taking into account the possibilities of certain types of expert research, should occupy an important place. It is proved that the preventive activities of forensic institutions of Ukraine should be carried out: in the production of examinations in specific criminal, administrative or civil cases; by summarizing expert, as well as forensic investigative practices; in the process of research on expert prevention; by providing on the basis of special knowledge of scientific and practical assistance to government agencies and public organizations in identifying circumstances conducive to the commission of crimes. In order to improve the quality of expert-preventive activities, the staff of the forensic institutions of Ukraine should pay maximum attention to the promotion of preventive activities among representatives of law enforcement and law enforcement agencies. On the basis of the analysis, the author’s definition of expert prevention is given: the activity of a forensic expert based on the laws and by-laws of normative legal acts, aimed at revealing the circumstances contributing to the commission of a crime, and the development of measures for their elimination with the use of special knowledge.

scholarly journals Public danger of crime: the concept and criteria of verification

2020 ◽  
Vol 4 (4) ◽  
pp. 124-140
Author(s):  
Natalia A. Lopashenko ◽  
Arina V. Golikova ◽  
Elena V. Kobzeva ◽  
Darya A. Kovlagina ◽  
Mikhail M. Lapunin ◽  
...  
Keyword(s):  
Social Relations ◽  
Objective Assessment ◽  
Legal Protection ◽  
Criminal Code ◽  
Legal Responsibility ◽  
The Public ◽  
Legal Literature ◽  
Analysis And Synthesis ◽  
The Subject ◽  
Definition Of

The subject. The article reveals theoretical, lexical and logical approaches to determining the essence of the public danger of crime. The purpose of the article is to confirm or dispute hypothesis that the public danger of crime as a legal or theoretical construction represents the possibility of negative changes in society; public danger is an exclusive social feature of criminal acts. The authors also aim to develop a system of verifiable criteria for public danger. The methodology of the research is an objective assessment of the public danger as legal category. It is performed selecting a system of verified factors of public danger on the basis of analysis and synthesis, induction and deduction, interpretation of legal literature. The main results, scope of application. The meaning of the legal definition of a crime contains the purpose of preventing possible harm to society stipulated in the criminal law. This fact is due to the preventive task (part 1 of article 2 of the Russian Criminal Code). The public danger of crime as a phenomenon of objective reality is meaningless, since the crime is the negative changes and harm that has occurred. The social danger of crime creates a shock to the foundations of society, undermines the conditions of its existence. Other ("non-criminal") offenses that contradict the established law and order in the state do not threaten the basic system of social values. Intersectoral differentiation of legal responsibility should have transitivity, which includes a rule: the degree of repression of coercive measures within various branches of law meets the rules of hierarchy. Mandatory signs of public danger of a crime are that the act: 1) affects significant social relations that need criminal legal protection from causing harm to them by socially dangerous behavior; 2) has a harmful potential that is fraught with causing significant harm or creating a threat of causing such harm to the object of criminal legal protection; 3) results in socially dangerous consequences; 4) is characterized by the guilty attitude of the subject to the deed, expressed in the form of intent or carelessness. Optional criteria of public danger of act are: the characteristics of the crime and characteristics of victim; method of committing a crime; the time, place, atmosphere, instruments and means of committing the crime; the motive; the object of the crime; special characteristics of the perpetrator. The quantitative indicators (size, severity, or other value) of the subject of the offense and its socially dangerous consequences, as well as the repetition of the act and the presence of a special recidivism of crimes should not be used as criteria for public danger of behavior. Conclusions. Public danger is a social feature exclusively of criminal acts (crimes and potential criminal misdemeanors); all other types of offenses are harmful to the interests of society, but they do not pose a danger to it. To exclude competition between criminal and administrative responsibility, it is necessary to take into account the public danger of the crime on the basis of verifiable factors.

METHODOLOGICAL PARADIGM OF MODERN LEGAL SCIENCE IN UKRAINE

2020 ◽  
Vol 10 (4) ◽  
pp. 12-20
Author(s):  
Vladimir Yashchenko ◽  
◽  
Olha Balynska ◽  
Keyword(s):  
Law Enforcement ◽  
General Theory ◽  
Social Relations ◽  
Positive Law ◽  
Legal Science ◽  
The Will ◽  
Definition Of ◽  
The Individual ◽  
The Relationship ◽  
Interacting Components

The leading idea of the article is the application of the most appropriate methodology for disclosing the essence and content of law, its origin, evolution, contradictions and their coordination in the context of the relationship between natural and positive law, social and individual paradigms, in particular, in the context of nationalizing the individual, and, on the contrary, individualizing the collective in a wide humanistic plane. This aspect synthesizes approaches to the disclosure of individual and collective through the categories of �self�, where dialectical, phenomenological, existential and other approaches are qualified as communicative and dialogic paradigm, which today finds its practical embodiment in lawmaking and law enforcement. Feeling the controversy of these views, the authors emphasize the deepening of the humanistic content of the legal regulator of social relations. Domestic modern legal science in its development should focus on deepening the humanistic content of the normative regulation of social relations. This actualizes the need to solve such scientific problems as the methodology of research and functioning of law, achieving a harmonious relationship between individual and collective in law, the connection of its natural and positive aspects, etc. A fundamentally new definition of the essence of law is proposed, not as the will of a certain class or majority, but as the will to self-existence, which is expressed in the phenomenon of self as a harmonious synthesis of individual and social. In this context, to investigate the legal phenomena dialectics can be effectively used not as a materialistic or idealistic methodology, but as the most general theory and way of ascending to the truth. After all, opposites in law are not necessarily antipodes, but can act as interacting components of legal reality

scholarly journals The history of the formation of notariat in Kostroma land

2019 ◽  
pp. 210-213
Author(s):  
Ivan N. Mel'nikov ◽  
Ol'ga A. Smirnova
Keyword(s):  
Law Enforcement ◽  
Legal Regulation ◽  
Local History ◽  
The State ◽  
Judicial Reform ◽  
Legal Analysis ◽  
Current State ◽  
History Of ◽  
History Of Law ◽  
State Archives

The article is devoted to the study of the process of formation of the institution of notaries in Kostroma land. The work identifi es the main stages of the development of the institution of notaries in the development of the state and the sources of legal regulation of this area of law enforcement. In the process of the historical and legal analysis, the peculiarities of the practical activity of notaries, refl ected in the documents which are stored in the holdings of the State Archives of Kostroma Region, are revealed. Particular attention is paid to the implementation of the judicial reform of 1864 and its role in the formation of the Russian notariat. The main purpose of the work was to assess the infl uence of historical experience on the current state of the institution of notaries, as well as to identify lost traditions in this area of jurisprudence. The results of this study may be of interest to specialists in the fi eld of history of law and local history.

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