scholarly journals LEGAL MECHANISM OF THE COURT FEE REFUND IN CASE OF TRIAL COMPLETION WITHOUT ADOPTION OF A JUDGEMENT IN CIVIL PROCEEDINGS

2021 ◽  
Vol 13 (3) ◽  
pp. 57-66
Author(s):  
Ulyana Vorobel ◽  
Keyword(s):  
Case Law ◽  
Legal Regulation ◽  
Court Decision ◽  
Civil Proceedings ◽  
Legal Nature ◽  
Legislative Regulation ◽  
Special Basis ◽  
Legal Consequence ◽  
Civil Cases ◽  
Legal Mechanism

The peculiarities of the legal mechanism of returning the court fee in case of completion of civil cases without a court decision are analyzed, issues of these applications practical resolving are considered, as well as suggestions for improving the legal regulation in case of the closure of the proceedings or leaving the application without consideration are proposed. While analyzing examples of case law, it was established that the lack of legislative regulation of the procedure for confirming or denying the existence of grounds for the amount of court fees refund causes a lot of confusion and contradictory solutions to the judiciary in this regard. The position on the impossibility of equalization due to the different procedural nature of leaving without consideration of statements on procedural issues, such as: on providing evidence, on securing a claim, on dismissal of a judge, and leaving without considering a statement of claim as a civil procedural institute, regulated by Art. 257 of CPC of Ukraine are justified. It has been concluded that in case the court finds circumstances that are grounds for the application of the institute of leaving the application without consideration and provided for in Art. 257 of CPS of Ukraine, when considering applications on procedural issues, should apply such a special legal consequence as a return of the application without consideration. It has been established that returning an application on procedural issues without consideration and leaving an application without consideration are completely different legal categories. Return of applications on procedural issues without consideration due to its legal nature is a special basis for the application of the return of the application institute, and therefore the legal consequence of such an application would be considered not filed at all. In this connection, it has been proposed to enshrine in the legislation the provisions on the refund of the court fee in case of return without consideration of the application on procedural issues, for the submission of which such payment was paid.

scholarly journals Shareholders’ Lawsuit in Georgian Legislation and Case Law

2021 ◽  
Vol 17 (20) ◽  
pp. 1
Author(s):  
Khatuna Jinoria
Keyword(s):  
Case Law ◽  
Joint Stock Company ◽  
Legal Institution ◽  
Minority Shareholders ◽  
Stock Company ◽  
Legal Nature ◽  
The Right ◽  
Legal Mechanism

Obtaining shares in a joint stock company grants the owner important rights and imposes several obligations on them. In the list of shareholders’ rights, one of the most important subjects is the right to sue the shareholder’s lawsuit. The right to bring in front of courts certain aspects of company-related activities is the legal mechanism of protecting the shareholders other rights. Shareholders’ lawsuit plays an important role in the protection of minority shareholders. Shareholders’ lawsuit also includes two types of legal actions: direct lawsuit and derivative lawsuit. Georgian case law is not very advanced in this area. When shareholders bring matters in front of courts, the number of precedents adhered to is rare. As for the derivative lawsuit, the relative novelty of this legal institution in Georgian legislation causes the lack of deeper understanding. Georgian doctrine does not provide thorough analysis of legal nature and divergence of shareholders’ lawsuits when it comes to case law. As mentioned above, it is quite scarce.

scholarly journals The Contribution of Forensic Examination to Ensuring the Right to a Fair Trial within ECtHR Case-law

2021 ◽  
Vol 4 (4) ◽  
pp. 104-115
Author(s):  
Oleksandr Kliuiev ◽  
Оlena Agapova ◽  
Ella Simakova-Yefremian ◽  
Oleksandr Snigerov
Keyword(s):  
European Union ◽  
Forensic Science ◽  
Case Law ◽  
Legal Framework ◽  
Legal Regulation ◽  
Fair Trial ◽  
Court Decision ◽  
European Convention ◽  
The European Union ◽  
Legal Provisions

In this note, the authors study legal and procedural cases of the application of forensic research in the observance of the common European procedural guarantee ensuring the balance of justice during a trial: Art. 6 of the European Convention on Human Rights (right to a fair trial). Based on the current legislation of the European Union and Ukraine, peculiarities of legal regulation and application of forensic expert research during court proceedings are analysed. It is emphasised that established the approaches and practice of applying specific expertise in the countries of the European Union have some peculiarities. It is established that one of the ways to ensure the fairness of a court decision is using forensic science. While comparing the legal framework for providing justice in Ukraine and the European Union, the authors stressed the need to develop a separate policy guideline (strategy, concept, etc.), such as the Vision for European Forensic Science Area used in EU countries. Detailed analysis of the ECtHR case-law on the application of Art. 6 has made it possible to illustrate the specifics of applying forensic science by complying with the fair trial requirement. It is concluded that the adoption of a fair court decision becomes possible when: 1) the practice of law enforcement and legal provisions related to the dispute context are taken into account; 2) the circumstances of the case are established with the use of content and reference to evidence; 3) non-legal phenomena are taken into account, such as ethical, social, moral requirements accepted in society, etc.

scholarly journals LEGISLATIVE PROBLEM OF EXCLUDING A PARTNER FROM THE COMPANY ON THE EXAMPLE OF GEORGIA (COMPARATIVE ANALYSIS)

2021 ◽  
Author(s):  
Ketevan Kokrashvili ◽  
Lasha Gorgadze
Keyword(s):  
European Union ◽  
Comparative Analysis ◽  
General Meeting ◽  
Case Law ◽  
Legal Regulation ◽  
Corporate Law ◽  
Court Decision ◽  
Controversial Issues ◽  
The European Union ◽  
Association Agreement

The issue of excluding a partner (removing a partner) from the company is one of the most important, very sensitive and controversial issues in corporate law. The legislation of different countries regulates this issue in different ways, but it is important that most countries, together with the decision of the General Meeting of Partners, to exclude a partner, require a relevant court decision that has entered into legal force. On the basis of a comparative analysis, the presented article discusses the possible reasons for the exclusion of a partner and the issues of legal regulation of the exclusion procedure. The fiduciary duties of a partner are analyzed as one of the important reasons for the exclusion of a partner from the company. Special attention is paid to legislative gaps and to the heterogeneity of the case law of Georgia in connection with the exclusion of a partner from the company. However, the article discusses the shortcomings of the new draft law of Georgia on Entrepreneurs, it is worth mentioning that the draft law was developed on the basis of the Association Agreement between Georgia and the European Union. Under this agreement, Georgia undertook an obligation to integrate Georgian corporate law into EU corporate law, in addition, in our opinion, the positions presented in the article will significantly develop and improve such an important institution of corporate law as the exclusion of a partner from the company.

scholarly journals Civil contracts in the area of air transportation: concept, characteristics, classification

2020 ◽  
pp. 35-60
Author(s):  
Natalia Vasilyevna Markevich
Keyword(s):  
Civil Law ◽  
Regulatory System ◽  
Air Transportation ◽  
Case Law ◽  
Legal Regulation ◽  
Air Cargo ◽  
Legal Nature ◽  
The Subject ◽  
Application Classification

The subject of this research is the concept, characteristics and interrelation of contracts in the area of air transportation. The article is dedication to understanding of legal nature and key elements of air contracts, specificity of their theoretical and practical application, classification; as well as aimed at creation of integral concept of regulatory system. Such understanding is acquired from a broad context of civil law literature and case law. Reference to the provisions of civil law doctrine allowed presenting an original view upon the subject matter, and propose recommendations on the improvement of aviation legislation. The main conclusion consists in the fact that civil law regulation of contracts in the area of air transportation is characterized by the existence of special contracts with peculiar features, which define the content of aviation legislation. With regards to each contractual construct, there emerge various question not only from the perspective of legal regulation and law enforcement (overbooking in the contract of air transportation of passengers), but also scientific approaches toward determination of the concept and nature of a particular contract (qualification of the shipping agreement as a bilateral or multilateral, legal nature of the shipping agreement for air cargo). The absence of universal understanding and interpretation of concept, contradiction of legislation, existence of legal gaps do not contribute to uniformity of aviation legislation, making it complicated for studying and application. The author also reviewed draft laws on regulation of air transportation and separate clauses thereof. Presented analysis reflects only few problematic aspects in the area of air transportation. The acquired results can be used in theoretical legal research, as well as legislative and practical activities.

scholarly journals GAPS IN ANTI-CORRUPTION LEGISLATION UKRAINE AND THEIR IMPACT ON FIGHTING CORRUPTION IN MEDICAL FIELD SPHERE

2020 ◽  
pp. 85-89
Author(s):  
O. Ye. Kushch
Keyword(s):  
Detailed Analysis ◽  
Medical Practice ◽  
Civil Service ◽  
Civil Servant ◽  
Case Law ◽  
Legal Regulation ◽  
Court Decision ◽  
Medical Field ◽  
Objective Side ◽  
Subjective Side

The article explores the peculiarities of administrative liability for corruption offenses established by the Code of Administrative Offenses. Taking into account the material examined, it is concluded that there are some clear shortcomings in the legal regulation of these issues, which is unacceptable in the context of increasing attention to the fight against corruption. Attention is drawn to the offense of breaking restrictions on compatibility and reconciliation with other activities. The composition of this offense is disclosed, particular issues of its elements, such as the objective and subjective side, are emphasized. Case law on this category of administrative offenses, including in the medical field, is being investigated. Such qualifying feature as the repeated commission of the analyzed offense is subjected to detailed analysis, and arguments are given about particular problems of its application. So, it is argued and confirmed by the case-law that a mandatory element of the subjective party, in addition to blame, should be present and the purpose – to obtain benefits. In analyzing such an element of the objective side of Article 172-4 of the Code of Administrative Offenses as engaging in business activities, the approximate concepts, in particular the presence of registration as an individual entrepreneur, are considered. Such qualifying feature as the repeated commission of the analyzed offense is subjected to detailed analysis, and arguments are given about particular problems of its application. Since the grounds for termination of the civil service are, in particular, the entry into force of a court decision to hold a civil servant liable to administrative liability for corruption-related offenses, we can say that it is preferable to involve a person in such a position for re-committing the analyzed violation, whose stay does not contain any administrative restriction on corruption-related offenses. It is the author’s opinion that the assignment of activity to medical practice should be carried out on the basis of clearly established its features, fixed at the level of regulatory legal acts. Specific proposals were made to improve the legislation on the issues analyzed.

scholarly journals Novelization of Civil Procedural Legislation of Ukraine in Cassation Review: Panacea or Illusion?

2020 ◽  
pp. 209-225
Keyword(s):  
Legal Regulation ◽  
Court Decision ◽  
Appellate Court ◽  
Court Decisions ◽  
Civil Proceedings ◽  
Civil Proceeding ◽  
The Right ◽  
Positive Step ◽  
Excessive Number

The article analyzes the novelties introduced to the civil procedural legislation in the cassation review. Cassation proceedings in Ukraine’s current civil proceedings engender a post-appellate court decision review, the content and purpose of which are to ensure civil proceeding implementation based on the latter principle application. The author evaluates cassation filters as a positive step in forming the cassation appeal institution. They constitute self-limitation of the Supreme Court’s jurisdiction and are designed to relieve it from reviewing an excessive number of cases. Simultaneously, the current legal regulation of cassation filters (grounds for appealing court decisions) is far from ideal and needs to be improved, given the shortcomings highlighted in the study. The non-parties to the case, possessing the right to cassation appeal, are not always burdened with participation in the case. Using the example of prosecutor participation in the cassation proceedings, the author illustrates how national law confers such rights on persons who did not take part in the case.

scholarly journals Legal regulation of the institution of the partiesfrom the standpoint of the principle of balance of civil procedural legal relations

2021 ◽  
pp. 90-102
Author(s):  
Оksana Shutenko
Keyword(s):  
Modern Science ◽  
Legal Regulation ◽  
Legal Anthropology ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Starting Point ◽  
Legislative Regulation ◽  
The Subject ◽  
Procedural Rights

The modern science of civil procedural law is experiencing a new stage of understanding the institution of the parties, which is associated with the study of the principle of balance of civil procedural law. The basis of non-priority participation in the process of the plaintiff and the defendant determines the legislative regulation of the institution of the parties. This rule should be considered as one of the manifestations of a fair trial, as it is a manifestation of the balance of interests of the parties during the proceedings. In the spirit of this principle, it is proposed to improve the procedures for involving accomplices and replacing an improper party in civil proceedings. The principle of the balance of civil procedural legal relations is, first, that the amount of legal interest of the subject of the process is directly proportional to the scope of his procedural rights. Thus, the purpose of civil process - restoration of the broken right is reached. Meanwhile, the legislator does not always manage to comply with the relevant legal regulations. In particular, the rules relating to the institution of procedural complicity and replacement of the improper party. The mistake of the legislative regulation of this mechanism is, in our opinion, a misunderstanding of the principle of equality of arms: the court cannot involve the co-plaintiff, and therefore cannot involve the co-defendant. The different nature of the institutions of the plaintiff and the defendant does not allow the same approach to legal regulation. This inequality is compensated by other principles, rules and institutions of civil procedural law. But the starting point is that at the beginning of the case the plaintiff attacks, initiates the process, and the defendant is involved in the process. Keywords: civil process, parties of civil process, principle of balance, legal anthropology, procedural complicity, replacement of improper party.

Justification of the cost representation services as one of the criteria of reasonableness (excessive) in reimbursement of expenses in civil and arbitration proceedings (problem statement)

2020 ◽  
pp. 383-389
Author(s):  
Valentin Nazarov ◽  
Ilya Volkov
Keyword(s):  
Legal Regulation ◽  
Legal Services ◽  
Narrow Sense ◽  
Problem Statement ◽  
Civil Proceedings ◽  
Legal Nature ◽  
The Russian Federation ◽  
The Government ◽  
Definition Of ◽  
The Cost

We present a justified position that the definition of reasonableness (excess) in reimbursement of expenses is included in a wider range of problems associated with reasonableness in civil proceedings – problems of a doctrinal nature. We substantiate the argument that the legal nature of the “reasonable limits” for collecting expenses (especially, the justification for the representation services cost) does not have the effect of “pre-reflection” due to a number of objective reasons. We pay special attention to the neces-sity for legal mediation of the problem sector (and, in general, interested par-ticipation from the state, for example, when the Government of the Russian Federation is included in this process), concerning the justification of the cost of legal services for reimbursement of expenses in civil and arbitration pro-ceedings. We list materials of court practice on reimbursement of expenses for payment of the representative's services, confirming the polarity of posi-tions. We reflect other criteria that affect the justification of legal services cost in the context of the problem under consideration. We attempt to answer the question: what are the limits of such legal mediation of the problem sector: is there no risk of legalization in the narrow sense of this concept (excessive legal regulation)?

scholarly journals Cancellation of Service Contract

2020 ◽  
Vol 2020 (3) ◽  
pp. 270-277
Author(s):  
Sergey Kichigin
Keyword(s):  
Critical Review ◽  
Scientific Literature ◽  
Labor Relations ◽  
Labor Law ◽  
Legal Regulation ◽  
Service Contract ◽  
Labor Legislation ◽  
Municipal Employees ◽  
Legal Nature ◽  
Legal Mechanism

The matter of canceling a service contract often hinders the work of personnel offices of government and local self-government. Due to the specifics of labor relations between state and municipal employees, it remains unresolved in the domestic labor law. There is a controversy between the subsidiary application of general labor legislation norms and special laws that control the activity of certain categories of workers. It comes from the vague border between the scope of general and special norms of labor legislation in relation to state and municipal employees. Another reason is the limited legal regulation of labor relations with these categories of workers with application of the general norms of the current labor legislation. The article features approaches to resolving the issue of the possibility and legality of canceling a service contract in personnel offices of government bodies. The research was based on a critical review of the two existing opinions on the place of the cancellation procedure in relations with state and municipal employees. The author describes the legal nature of the cancellation and termination of the employment contract based on scientific literature. The article contains some recommendations on how to avoid the situation in which the representative of the employer does not have adequate legal mechanism for responding to an employee's failure to appear at work on the first day of the contract.

scholarly journals Experience of Legislative Regulation of Secessions in Three Countries: The USSR, China, and Canada

Lex Russica ◽  
2020 ◽  
pp. 118-128
Author(s):  
G. N. Andreeva
Keyword(s):  
Use Of Force ◽  
Legal Regulation ◽  
The State ◽  
Main Role ◽  
Significant Discrepancy ◽  
Legislative Regulation ◽  
National Constitution ◽  
Legal Mechanism ◽  
Regional Problems ◽  
Made In

Secession in the 20th-21st centuries have become subject to legal regulation at the level of current legislation issued on the basis of the provisions of the national Constitution. The paper analyzes three of the laws on secession. Two of them (the USSR and Canada) regulate the implementation of secession from the state, the third (China) prohibits secession. All the three acts are based on the interpretation of relevant constitutional norms. An analysis of these laws in terms of the purpose for their issuance, content, features, and the degree of achievement of the officially formulated goals shows a significant discrepancy between the officially set goals and the legal tools of legislative techniques used to achieve them. Despite the different names and officially stated goals for secession laws adoption, all the three laws are aimed at either preventing secession or significantly delaying the process. In the Soviet and Canadian laws that formally permit secession, the main role in the process of "delaying" the issue is assigned to the central authorities of the state, which are given broad powers and opportunities to recognize the results of a referendum held by the relevant region as invalid. Due to the nature of Taiwan’s status and its relationship with China the PRC law can hardly be seen as an attempt to create a legal mechanism of counteraction of secession. It is rather a political warning, made in the form of a legal act, of the inadmissibility, in the opinion of the PRC, the international legal formalization of the independence of Taiwan. The legislative regulation of secession issues does not yet contain new mechanisms that clearly ensure the democratic nature of state decision-making. However, no matter how weak the legislative regulation of secession issues is, it is a step forward in comparison with the use of force to solve regional problems.

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