«LEGAL FORCE» OF THE NORMS OF LAW IN MODERN CONCEPTS OF JURISPRUDENCE: A CLOSED CIRCLE?

2021 ◽  
pp. 204-213
Author(s):  
E.V. Skurko ◽  
Keyword(s):  
Point Of View ◽  
Legal Norms ◽  
Closed Circle ◽  
Legal Force

The latest publications of legal scholars are considered, exploring the nature and concept of legal force from the point of view of various traditions and disciplines, as well as issues of institutionalization of approaches to determining the legal force of legal norms.

Dispositive Model of Active Legal Capacity of People with Mental Disabilities in France and Quebec in the Context of the Russian Civil Code Reform (Part II)

2021 ◽  
pp. 80-87
Author(s):  
Terdi E. S. ◽  
◽  
Skrynnik I. K. ◽  
Keyword(s):  
Mental Disorder ◽  
Legal Protection ◽  
Legal Regulation ◽  
Civil Code ◽  
Point Of View ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Legal Norms ◽  
Leading Role ◽  
Legal Method

The article is devoted to the problem of the inconsistency of the Russian imperative model of active legal capacity, according to which the content of active legal capacity in case of its restriction due to mental disability of a person is prescribed by the law, to the Convention on the Rights of Persons with Disabilities ratified by Russia in 2012. The purpose of the paper is to demonstrate the shortcomings of the imperative model, the main of which is the lack of authority of the Russian court to individually determine the consequences of restriction of active legal capacity of a person due to mental disorder, taking in account degree of actual decrease of his cognitive and volitional abilities. This purpose is achieved by the consistent implementation of the following tasks. First of all, characteristic of the Russian imperative model of active legal capacity is given. Secondly, the French dispositive model of legal capacity is described. In this model the forms of legal protection, but not the categories of active legal capacity, incapacitation and restricted active legal capacity are the backbone concepts for the legal regulation of this group of relationship. It is noted that under the influence of the Convention on the Rights of Persons with Disabilities the more progressive, from the point of view of international law, forms of this model are stipulated in many foreign countries. Thirdly, the evolved form of the French dispositive model of active legal capacity, implemented in the Bill 18 «An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons», that was adopted by the National Assembly of Quebec in 2 June 2020, is analyzed. The main advantage of the latter is that the court, establishing the form of protection, is not bound by the legal norms that imperatively determine the content of active legal capacity of a person with mental disorder. The court is able, based on the cognitive and volitional abilities of particular person, to individually determine which acts person can perform by himself, alone or with the assistance of the tutor, and which one can be performed by the tutor only. The objectives of the study determine the leading role of the comparative legal method in its implementation. The provided research makes possible to assess the perspectives of borrowing of French or Quebec dispositive models of active legal capacity of people with mental disorder by the Russian legislator.

scholarly journals Neutralization of Transport Documents in Road Transport

2021 ◽  
Vol 19 (2) ◽  
pp. 70-78
Author(s):  
M. Poliak ◽  
N. Yu. Lakhmetkina
Keyword(s):  
Road Transport ◽  
Freight Transport ◽  
Point Of View ◽  
Legal Norms ◽  
Frequent Use ◽  
Actual Movement ◽  
Road Freight ◽  
International Transport ◽  
Significant Step ◽  
Basic Purpose

In 1956 there was a significant step in international road freight transport – conclusion of Convention on the contract of carriage in international road freight transport (CMR Convention), the basic purpose of which was to unify the rules in the international transport of goods and thus promote the development of international trade. From a practical point of view, this was very important for both carriers and transporters. The Convention describes the most important document in the carriage of goods – the CMR consignment note.Recently, the term «neutralization» has been used in connection with the CMR consignment note, which is considered as an interference with the system of functioning of transport documents, which aims to obscure the actual movement of the consignment during transport. At the same time, neutralization of the consignment note is not so much contrary to legal norms as it can lead to undesirable consequences for carriers. For this reason, the question of whether it is possible to neutralize the CMR consignment note in accordance with the current rules and whether the neutralization of the CMR consignment note does not violate the functionality of the existing system is relevant. Therefore, the objective of this work is to study the reasons and methods for neutralizing CMR consignment notes, as well as options for handling neutralized consignment notes.Considering that neutralization of the consignment note has become a relatively common practice and means the exchange of original consignment notes or transport documents with other consignment notes or transport documents, canceling the actions of the first consignment note, in the article the authors, based on their own research, identified the possibilities of using the neutralization of the CMR consignment note in practice for certain types of goods, routes of the most frequent use, as well as the risks of these procedures in road transport. 

scholarly journals Customary International Rules in Contemporary International Law // Međunarodna običajna pravila u savremenom međunarodnom pravu

2019 ◽  
Vol 9 (9) ◽  
pp. 136
Author(s):  
Duško Glodić
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Point Of View ◽  
Customary International Law ◽  
Practical Point ◽  
Legal Norms ◽  
State Practice ◽  
The Creation

This article explores the role and importance accorded to customary international law in contemporary international law. First of all, the author has explored a number of issues related to this topic. Particluarly, the manner in which norms of customary international law are being established through the relevant State practice and the formation of opinio juris, as well as how the changes in contemporary international relations generated some chages in custromary international law were examined from both theretical and practical point of view. Than, the article elaborated, in a more concrete manner, different ways of impact of changes in international relations and subjects of international law to the formation of customary international rules. It has also paid attention to the evolution in international law and its reflection to the creation of international legal norms, including customary rules. The article concluded that, despite an ever increasing number of treaties, customary rules are still present in international law and are important for regulation of international relations, thus ensuring that dynamics and developments within the international community are followed by the development of legal framework.

WITH REGARD TO THE QUESTION OF COMPLIANCE WITH THE PRINCIPLE OF LEGALITY IN ESTABLISHING ADMINISTRATIVE LIABILITY FOR FAILURE TO IMPLEMENT DECISIONS OF THE RUSSIAN FEDERATION’S COUNTER-TERRORISM BODIES

2021 ◽  
pp. 82-92
Author(s):  
Artem V. Rudenko ◽  
Keyword(s):  
Russian Federation ◽  
Point Of View ◽  
System Construction ◽  
Federal Law ◽  
Basic Principles ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Federal Laws ◽  
Principle Of Legality

The relevance of the article stems from the adoption by the constituent entities of the Russian Federation of rules on administrative liability for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Russian Federation in situations of conflict with federal law regulations, caused by adoption of the Federal Law No. 82-FZ of 18 April 2018. This contradiction calls into question the conformity of the adopted norms of the laws on administrative liability of the constituent entities of the Russian Federation with the principle of legality, as one of the basic principles of the State’s legal system construction. The purpose of the article is to develop a position on legal conduct in a situation of con-flict with the legal norms of federal legislation in establishing administrative liability by the constituent entities of the Russian Federation. The possibility of establishing administrative liability at the level of the constituent entities of the Russian Federation is enshrined in the Constitution of the Russian Federation and the Code of Administrative Offences of the Russian Federation After the adoption of the Federal Law No 82-FZ of 18 April 2018 «On Amendments to the articles 5 and 5.1 of the Federal Law «On Counteracting Terrorism» legal conflict in the regulation of these powers has arisen. These changes affected not only the regulation of the above-mentioned powers of the constituent entities of the Russian Federation, but also the system of sources of administrative liability, since Code of Administrative Offences of the Russian Federation states: administrative liability source system refers only to the Code and the laws of the constituent entities of the Russian Federation. The article contains an analysis of possible interpretations of the provisions of federal laws on the powers of the constituent entities of the Russian Federation to establish adminis-trative liability for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Federation. Possible interpretations of the term «decisions of an anti-terrorist body» are analyzed from the point of view of the goals and tasks of formation of these bodies, their powers and organizational-steam form. The study concludes that it is necessary to comply with the provisions of the Code of Administrative Offences of the Russian Federation when determining responsibility for failure to implement decisions of the anti-terrorist bodies of the constituent entities of the Russian Federation. It is recommended that the legislatures of the constituent entities of the Russian Federation refrain from adopting such norms. It is recommended that the judicial authorities should take into account the provisions of the Decision of the Plenum of the Supreme Court of the Russian Federation of 24 March 2005 No 5 « On certain issues raised by the courts in the application of the Code of Administrative Offences of the Russian Federation».

Justice and equity

2021 ◽  
Author(s):  
Mihail Kleandrov
Keyword(s):  
Law Enforcement ◽  
Graduate Students ◽  
Point Of View ◽  
Law Students ◽  
Death Sentence ◽  
Judicial Discretion ◽  
Law Enforcement Agencies ◽  
Legal Norms ◽  
Court Proceedings ◽  
Rule Making

The monograph examines the fundamental problems of justice from the point of view of the need to ensure organizational and legal means of justice in judicial activity. The problems of philosophical, legal and other approaches to understanding justice and the mechanism of justice are studied; the problems of justice in the system of current legislation, including in the conditions of uncertainty of legal norms, within the framework of judicial discretion, in judicial law - making and rule — making; the problems of evidence in court proceedings; the problems of fair justice in extreme conditions of the coronavirus pandemic; as a vector of the future-the problems of justice carried out by artificial intelligence; the problem of justice of the death sentence. Proposals aimed at improving the mechanism of fair justice are being made. For employees of legislative, judicial and law enforcement agencies, active judges and those who want to become them, scientists, teachers, graduate students and law students, as well as for practicing lawyers.

scholarly journals Functioning and development of civil society under constitutional basis

2020 ◽  
pp. 80-83
Author(s):  
Danylo Akulenko
Keyword(s):  
Civil Society ◽  
Rural Areas ◽  
Integrated Approach ◽  
Scientific Basis ◽  
The State ◽  
Point Of View ◽  
Regulatory Function ◽  
Political Movements ◽  
Legal Norms ◽  
Low Level

This article was studied the сonstitutional norms for civil society, which, in the author's view, should be the doctrinal basis for its functioning. The question arises because of the critical need of society in legal and political movements for a European model of relations between the state and the citizen, the urgency is determined not only by the author’s personal convictions, but also by the unstable situation inside the Ukrainian politics, according to which only anti-democratic pseudosocial post-Soviet movements have unity and one point of view. In such conditions, the uncertainty of the Basic Law does not leave an opportunity to develop new, more effective legal norms that could increase the effectiveness of civil society. The scientific basis for this article were the works of V. Batanov, A. Krusyan, N. Onishchenko, T. Podorozhna, S. Petkov, O. Skripniuk, S. Sunegin, Y. Shemshuchenko. The aim of the work is to study the possible instruments of constitutional influence to achieve the ultimate goal of each democratic and legal state - building an effective civil society with a self-regulatory function. The analysis of the real situation inside the country shows that the level of efficiency of civil society is currently critically low. Indicators of this are the following negative socio-legal phenomena: - legal and political nihilism; - the dependence of the media on the so-called "tycoons"; - a small number of non-state entities of legal relations (organizations, foundations, unions, associations, federations, consumer societies, etc.) especially in sparsely populated rural areas; - low level of labor protection and social guarantees; - ineffective financing of political movements, parties and youth party cells; - low level of civil self-identification in certain regions of the country; - ineffective distribution of financial resources to state monopolies, which are unprofitable to preserve employment. This article provides possible ways of overcoming problems which can positively affect the further development of interaction between society and the state with an integrated approach to their implementation and strike a balance between state influence and civil pressure, the purpose of which is to ensure a decent level of protection of the rights, freedoms and interests of citizens.

scholarly journals Systemowość aksjologiczna prawa

2016 ◽  
Vol 104 ◽  
pp. 91-104
Author(s):  
Marzena Kordela
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
Stable System ◽  
Value Systems ◽  
Legal Norms ◽  
A Value ◽  
Legal Force

AXIOLOGICAL COHERENCE OF LAWLaw, qualified as a system, is characterized as such not only due to formal and content relations but also due to axiological relations. The assumption of legislator’s rationality predetermines that by establishing legal norms the legislator is guided by a cohesive, hierarchical and relatively stable system of values axiological rationality. By introducing a given value into a system of law the legislator makes it a value in legal force with all the consequences, e.g. one that regulations of a inferior legal force may not be in disagreement with it. Legal values themselves constitute a system and this coherence is recreated in narrower areas, as e.g. in branches hence value systems in criminal law or in civil law.

scholarly journals CURRENT TAX INITIATIVES AND INNOVATIONS: SOCIO-ECONOMIC FOUNDATIONS, THEORETICAL APPROACHES AND PRACTICAL APPLICATION

Lex Russica ◽  
2020 ◽  
pp. 135-151 ◽  
Author(s):  
M. D. Napso ◽  
M. B. Napso
Keyword(s):  
Meat Products ◽  
Interdisciplinary Approach ◽  
Legal Regulation ◽  
Point Of View ◽  
Excise Tax ◽  
Civic Consciousness ◽  
Legal Norms ◽  
Advantages And Disadvantages ◽  
Theoretical Approaches ◽  
Systemic Problems

The paper discusses the advantages and disadvantages of tax initiatives on the introduction of an excise tax on carbonated sweet drinks and red meat products, a fee for the use of plastic utensils and a new special tax regime for self-employed. Based on the complexity and diversity of the issues and in order to ensure the reliability of the conclusions and proposals the paper analyzes the problem in various aspects using an interdisciplinary approach: 1) in the context of topical problems of social development; 2) from the point of view of solving systemic problems of taxation in the Russian Federation and improving its legal regulation; 3) for compliance with the principles of taxation and the economic and legal essence of taxes and fees; 4) in the light of ensuring budget profitability and reducing financial costs. When considering the development of effective mechanisms of legalization, the authors proceeded from the need to ensure the unconditional constitutional obligation to pay taxes and fees, the mandatory application of penalties against defaulters, the inadmissibility of replacing the principle of obligation with the principle of voluntariness: the performance of the constitutional duty cannot be made exclusively dependent on civic consciousness and social responsibility, on the availability of various preferences. The authors are convinced that when applying incentive mechanisms, it is necessary to distinguish between non-payers and payers, without allowing the latter to be put in a worse position. The study resultes in the conclusion on the strengthening of legal regulation in terms of ensuring the mandatory tax liability, about the increase of the responsibility of legislators in the implementation of the principles of taxation in order to avoid the adoption of legal norms that contradict them.

scholarly journals The Place and Potential Role of the OSCE in the Changing Architecture of European Security

2019 ◽  
pp. 27-40
Author(s):  
Viktor Mizin
Keyword(s):  
Point Of View ◽  
European Security ◽  
The West ◽  
European Continent ◽  
Legal Norms ◽  
Strategic Stability ◽  
Post War ◽  
Key Aspects ◽  
The Military ◽  
Crisis Situations

The article analyzes the key aspects of the development of relations between Russia and the OSCE from the point of view of the complex issues of Euro-Atlantic security. According to the author, the acсession of Crimea to Russia and the crisis around Ukraine have further exacerbated the preceding tensions in bilateral relations. Today, they are much like the Cold war confrontation. In Europe, the military confrontation is now intensifying. Today Moscow is openly accused of undermining the foundations of the post-war order in Europe, of illegal steps to break the generally accepted international legal norms, of aggressive intentions that threaten European stability. At the same time, the existence of significant distrust between Russia and the West does not mean that we should wait for some pause, abandon attempts to take constructive steps to re-establish cooperation. Such an approach would be counterproductive – especially since both sides are sending, albeit muted, signals of readiness for dialogue. In this situation, the author proposes a number of initial steps that could increase the level of trust between the parties, would ideally move to a meaningful dialogue on the future of the European security architecture. Various OSCE mechanisms could play a useful role. The author emphasizes the importance of increasing the effectiveness of the OSCE-originated crisis mechanisms in the context of the erosion of strategic stability on the European continent as a result of the unprecedented deterioration of relations between Russia and the West. Special emphasis is placed on modernization of the crisis management potential of the OSCE and promotion of dialogue between the West and Russia, including the establishment of a novel consultative platform in the framework of the OSCE to discuss emerging crisis situations. A number of specific confidence-building measures are proposed to restore dialogue and find solutions to crisis situations in the region.

scholarly journals Analysis of Russian legislation from the point of view of gender asymmetry

2021 ◽  
Vol 10 (39) ◽  
pp. 86-93
Author(s):  
Olga V. Klimashevskaya ◽  
Pavel E. Studnikov ◽  
Pavel V. Poznyakov
Keyword(s):  
Point Of View ◽  
Final Conclusion ◽  
Sociological Research ◽  
Gender Analysis ◽  
Negative Consequences ◽  
Legal Norms ◽  
Gender Symmetry ◽  
Russian State ◽  
Starting Point ◽  
Gender Asymmetry

This article is devoted to the analysis of Russian legislation from the point of observance of gender symmetry and the identification of norms that infringe on the rights of one of the genders and thereby hinder the exercise of rights on equal footing. The starting point in the research methodology is the study of the concept of a gender-neutral norm, which should proceed from the position of ensuring equality of conditions and opportunities for men and women to the same extent. Also, a gender analysis of Russian legislation was used as a methodology, as a result of which it can be concluded that the Russian state, as an institution to which society has delegated power, is not fully consistent in the political measures and steps taken to resolve this issue. The final conclusion that was reached during the study, in a number of cases, seems advisable to revise the provisions of Russian legislation beforehand with sociological research, which makes it possible to reveal the real effectiveness and possible side negative consequences of the application of certain legal norms and thereby minimize the procedural problems that arise in this regard.

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