scholarly journals RATIONALITY CATEGORY OF PRIVATE LAW

2021 ◽  
pp. 20-37
Author(s):  
Alexander Baykov
Keyword(s):  
Public Relations ◽  
Research Methods ◽  
Legal Regulation ◽  
Clear Relationship ◽  
Private Law ◽  
Legal Research ◽  
Positive Law ◽  
The Law ◽  
Relationship Of

The article analyzes equally important both for philosophy and law issues of rationality, considers the categories of reasonableness of private law, their role and significance in the legal regulation. The relevance of the study is determined by the lack of clear criteria for determining the nature and character of these categories, by the diversity of understanding of their content, role and significance in the process of legal regulation. The purpose of the study is to establish the nature, interconnection and interdependence of rationality, reasonableness of private law, show how they differ from close-by categories of justice, fairness, legality and appropriateness. In this regard, the study used system-logical, formal-dogmatic, functional, comparative-legal research methods. The study draws attention to the essential differences between rationality and reasonableness, which today are often identified, specifies clear relationship of reasonableness, justice and fairness, and at the same time emphasizes their autonomy, synonymy of rationality, meanings underlines the criteria of rationality and reasonableness, emphasizes the irreducibility of reasonableness to the legitimacy, highlights the signs inherent to reasonableness, which are appropriateness and legitimacy. Reasonableness is not only a subjective category, but also, above all, is a requirement objectively expressed in positive law, addressed to all the participants regulated by the law of public relations, i.e., an objective category. In its turn, certainty of the law is expressed as its reasonableness. The study traces the manifestation of reasonableness category in the international legal acts and normative legal acts of a number of national legal orders.

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.

scholarly journals Penguasaan Hak Atas Tanah Oleh Orang Asing Berdasarkan Perjanjian Pinjam Nama (Nominee)

2020 ◽  
Vol 2 (3) ◽  
pp. 326-330
Author(s):  
I Wayan Pebriyana ◽  
I Nyoman Putu Budiartha ◽  
I Putu Gede Seputra
Keyword(s):  
Research Methods ◽  
Land Rights ◽  
Research Note ◽  
Research Library ◽  
Legal Research ◽  
Foreign National ◽  
Positive Law ◽  
Legal Power ◽  
The Law ◽  
The Right

Abstract—The use of a nominee agreement was the embodiment of the existence of an Alliance. Embodiment of the nominee is on the letter of the agreement made by FOREIGNERS and CITIZENS as the giver of power, the agreement was intended to give the authority against a FOREIGN NATIONAL as a recipient of the power of the law against doing in respect of land that cannot be He owns that is proprietary. There are two problems in research, namely: (1) the mechanism of the mastery of land rights by foreigners, (2) the power of the law of the Dominion land rights based on loan agreement name (Nominee). The goal of research to understand the mechanisms of domination the land rights committed by foreigners and to know the legal power of the Dominion land rights by foreigners on the basis of the Covenant borrow names (nominee). Research methods used normative legal research library or study of the positive law in force. Based on the research note that: (1) mastery of land rights by FOREIGNERS is done with usage rights and the right of rental, and the existence of an agreement borrowed the name, the name of WNI noted in the certificate property. (2) The force of law pernjanjian borrowed the name seen from Article 1 Paragraph Burgerlijk Wetboek 1338, any agreement made legally valid as legislation.  

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 Analysis of Wakaf and Maqashid Syari'ah Law on the Development of Wakaf Property in Lhokseumawe City

2021 ◽  
Vol 3 (1) ◽  
pp. 224-231
Author(s):  
Yasir Nasution ◽  
Alyasa’ Abubakar ◽  
Kafrawi
Keyword(s):  
Data Collection ◽  
Islamic Law ◽  
Legal Research ◽  
Government Regulations ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
The Law ◽  
Research Show

The development of waqf assets in the form of adding the function of waqf is a new phenomenon in the problems of Islamic law jurisprudence even in positive law in Indonesia. In national law (positive), Indonesia has regulated this issue with the existence of laws and government regulations regarding waqf both movable and immovable waqf assets, even in its development every property in waqf must have an Deed and / or certificate. Whereas in Islamic jurisprudence, the development of waqf assets in the form of additional functions is one of the problems that can be said to be new, it needs legal conclusions and even has to be seen from various theoretical concepts such as maqashidu sharia. Therefore this research will examine the issue of developing waqf assets based on the Waqf Law and maqashid syari'ah. This research is an empirical legal research using a sociological legal approach, with data collection through documentation and interviews. The results of the research show that the development of waqf assets is permitted according to the law, but with the stipulated conditions, besides that the development of waqf assets is also permissible in Islamic jurisprudence as long as it is solely for reasons in accordance with the concept of maqasidu syari'ah and the point is to seek maslahat.  

Practical significance of law constitutional principles

2020 ◽  
pp. 435-441
Author(s):  
Aleksandr Paramonov
Keyword(s):  
Public Relations ◽  
Legal Regulation ◽  
Practical Significance ◽  
Legal Consciousness ◽  
Direct Role ◽  
Positive Role ◽  
Legal Norms ◽  
Russian Law ◽  
The Law ◽  
Basic Ideas

We consider the constitutional principles of Russian law in the framework of positivist legal consciousness. We note the highest value of the law constitutional principles, as the basic ideas that underlie individual branches of law and all legal regulation. We focus on the practical significance of the constitutional principles of Russian law. We point out that in order to overcome defects in the legal consciousness of the population, it is advisable to duplicate the law principles that enshrined in the Constitution of the Russian Federation and in sectoral legislation. We emphasize that the practical significance of the law constitutional principles is manifested not only in their direct role in the legal regulation of public relations, but also in the fact that in judicial practice they can be used in the case of applying the analogy of law and the analogy of legislation. We indicate that this legal and technical tool is used to fill gaps in legal regulation. It is used in many branches of Russian law: civil, civil procedural, arbitration procedural, ad-ministrative procedural, family and others. Thus, the study shows the positive role of law constitutional principles in decision-making by a law enforcer in the absence of sectoral legal norms applicable in a particular situation.

scholarly journals KEBIJAKAN REHABILITASI TERHADAP PENYALAH GUNA NARKOTIKA PADA UNDANG – UNDANG NOMOR 35 TAHUN 2009 TENTANG NARKOTIKA

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
IDA BAGUS PUTU SWADHARMA DIPUTRA
Keyword(s):  
Drug Abuse ◽  
Drug Users ◽  
Theoretical Foundation ◽  
Journal Writing ◽  
Secondary Data ◽  
Drug Addicts ◽  
Legal Research ◽  
Positive Law ◽  
The Law ◽  
The Way

Positive law states, drug users are criminals because it has met the qualifications in the law of narcotics, narcotic offenses such as drug abuse in the study of criminology can be classified as a crime without a victim or a victimless crime. This is because they will become dependent on illicit goods (narcotics), the way it deems appropriate to cure the addiction is to rehabilitate the victims of drug abuse For law journal writing, the writer uses normative legal research with one character is using secondary data, where the data consists of primary legal materials, legal materials and secondary legal materials tertiary. And the theoretical foundation that is used is the law, norms and theories appropriate to the problem The results reveal the writing on the rehabilitation policy on Narcotics has been strictly regulated in Chapter IX legislation, policies were aimed at drug addicts and victims of drug abuse, arguing that victims of drug abuse is a victim of crime narcotics and therefore the appropriate sanctions to be meted out to him is the rehabilitation of the victims will be able to return to society and become useful

Advanced Introduction to Legal Research Methods

2020 ◽  
Author(s):  
Ernst Hirsch Ballin ◽  
Keyword(s):  
Research Methods ◽  
Legal Research ◽  
Legal Scholarship ◽  
Normative Language ◽  
Key Topics ◽  
The Common ◽  
The Law

Written by Ernst Hirsch Ballin, this original Advanced Introduction uncovers the foundations of legal research methods, an area of legal scholarship distinctly lacking in standardisation. The author shows how such methods differ along critical, empirical, and fundamental lines, and how our understanding of these is crucial to overcoming crises and restoring trust in the law. Key topics include a consideration of law as a normative language and an examination of the common objects of legal research.

On the issue of legal status of spiritual Christians Molokans in the Russian Empire

2020 ◽  
pp. 129-135
Author(s):  
Dmitriy I. Frolov
Keyword(s):  
Public Relations ◽  
Research Methods ◽  
Religious Education ◽  
Criminal Law ◽  
Legal Status ◽  
Legal Regulation ◽  
Russian Empire ◽  
The State ◽  
The Russian Empire ◽  
The Individual

The purpose of this work is to give a brief analysis of the legal status of spiritual Christians Molokans in the Russian Empire, following the dynamics of state legal regulation. The problem of the individual sectarian groups status remains little studied in both domestic and foreign literature, which determines its relevance. We use the following research methods: chronological, problem and analytical. We analyze the norms of administrative and criminal law in force in the 19th - early 20th centuries in the Russian Empire, which regulate the rights and obligations of subjects assigned to the Molokan sect. The analysis showed that the legal impact of the state on the Molokans was repressive and causal throughout most of the studied period. Only the reign of Alexander I was marked by a loyal attitude towards sectarians. After the revolutionary events of 1905, a number of civil and religious freedoms were granted to the Molokans, however, one cannot speak of the religious equality of all subjects during this period. After 1905, specialized acts were passed regulating the procedure for registering communities, holding conventions, organizing religious education, and other areas of public relations.

scholarly journals The Legal Status of Appraisal of Materials Guarantee for Bancruptcy Process of Indonesia

2020 ◽  
Vol 16 ◽  
pp. 1-12
Author(s):  
Anne Rusiana ◽  
Jamal Wiwoho ◽  
Adi Sulistiyono
Keyword(s):  
Research Method ◽  
Legal Status ◽  
Legal Certainty ◽  
Legal Research ◽  
Positive Law ◽  
Legal Case ◽  
The Status ◽  
The Law ◽  
Legal Discovery ◽  
As If

This research studies the legal status of a material guarantee for the bankruptcy process of Indonesia. The purpose of this research is to find out the legal status of whether the material guarantee that has been declared bankrupt by the appraisal because of not fulfill of repayment of the debtor to the creditor can be transferred on non-bankruptcy status? Moreover, what is the creditor's execution rights to the debtor's material guarantee? This research uses a normative legal research method, namely: legal research that is done with the purpose of discovering the principles and philosophical base (dogma or doctrine) of positive law, and the research of legal discovery efforts in concreto that is suitable to be implemented to solve a particular legal case. The result of this research is that material guarantees that have been determined as Bankruptcy cannot be transferred to their status when they are sold with a non-bankrupt status before a written decision by the judge justified the status. This shows obedience to the principles of legality and legal certainty, that selling the bankrupt assets with the status of (non-bankrupt assets) cannot be justified according to the law. If the curator still continues to sell the bankrupt assets, that process is illegal, including the execution of the selling according to the law. When it was being declared of bankrupt the total value of the material guarantee is assessed by the appraisal to be sufficient for paying all debts to the creditor, then it became the guarantee of repayment of the debtor, but if the value of the material guarantee valued by the appraisal is smaller than the debt, then there must be a reassessment in order to make justice for debtors and creditors. Mortgage-holding creditors, fiduciary guarantees, mortgage rights, mortgages, or other collateral rights, can execute their rights as if Bankruptcy did not occur, but there are several receivables that must be matched before executing their separatist rights.

scholarly journals GAPS IN THE LAW AND WAYS TO FILL THEM

2020 ◽  
Vol 30 (3) ◽  
pp. 396-405
Author(s):  
P.V. Lushnikov
Keyword(s):  
Public Relations ◽  
Legal Regulation ◽  
Negative Consequences ◽  
First Case ◽  
The Law ◽  
False Idea ◽  
Law Making ◽  
Made In ◽  
Communicative Processes

The article deals with the issues of gaps in law, it is stated that at present the problem of gaps is caused by the development of public relations. The negative consequences of gaps and their causes are determined. Several classifications of gaps that are made in science are considered. It is concluded that the deliberate creation of gaps by the subjects of law-making can be a corruption-induced factor. The classification of gaps depending on the truth (real and imaginary) is analyzed in detail. It is concluded that under the imaginary spaces can occur, both the addressees and the addressees of legal messages. In the first case, the addressees due to lack of necessary knowledge may have a false idea about the lack of legal regulation. When considering the second option, there is agreement with the scientific position that the addressees may, for subjective reasons, try to resolve gaps in the law, which do not really exist, thereby giving rise to excessive legitimization or real gaps. The article considers the options of filling the gaps in the law proposed in science. Further, it is proposed to apply to this problem the provisions of hermeneutics. The possibility of applying hermeneutic methodology to eliminate gaps is substantiated. It is concluded that preliminary modeling of communicative processes in the course of law-making can be used as a measure to counteract the gap in laws. The author suggests the need to limit the "arbitrariness of the reader" in the process of applying the analogy of law and law, as well as in the process of forming a legal precedent.

Sign in / Sign up

Export Citation Format

Share Document