scholarly journals NORMAL BUSINESS ACTIVITIES OF THE DEBTOR IN BANKRUPTCY: CRITERIA FOR RECOGNITION AND THE IMPORTANCE OF THE GOOD FAITH OF THE COUNTERPARTY

2021 ◽  
Vol 17 (1(63)) ◽  
pp. 140-150
Author(s):  
Дарья Владимировна КОРОЛЁВА
Keyword(s):  
Empirical Method ◽  
Good Faith ◽  
Legal Interpretation ◽  
Close Attention ◽  
Scientific Methods ◽  
Judicial Practice ◽  
Legal Method ◽  
System Method ◽  
General Scientific ◽  
Interpretation Method

Legal scholars draw close attention to the issue of the content of normal business activities. It is still necessary to take into account not only the already systematized explanations of the higher courts on specific issues in every insolvency case, but also the dynamics of judicial practice and certain aspects of the debtor’s bankruptcy. A topical issue is whether transactions of a bankrupt debtor made during a period of suspicion and in arrears of payment can be classified as transactions concluded in the course of the debtor’s normal business activities. Purpose: to form a judgment on the conditions under which debtor`s transactions made during a period of suspicion and delay of performance may be assimilated by the court to its normal business activities. Methods: the author uses both general scientific methods (system method, empirical method) and special methods (comparative legal method, legal interpretation method). Results: the criteria for understanding transactions made during the period of suspicion and in delay of performance as the debtor’s normal business activities are defined; the importance of the good faith principle of the debtor’ counterparty is determined.

scholarly journals Claims for Recognition of a Registered Contract as Terminated and the Right of Obligation as Absent

2021 ◽  
pp. 57-83
Author(s):  
V. A. Boldyrev ◽  
Keyword(s):  
Scientific Methods ◽  
Legal Rules ◽  
Legal Studies ◽  
Judicial Practice ◽  
Legal Method ◽  
Legal Nature ◽  
General Scientific ◽  
The Law ◽  
Time Changes ◽  
The Right

Introduction: claims for recognition of a registered contract as terminated and the right of obligation as absent combine the following features: (1) they are declaratory; (2) belong to the category of negative ones; (3) are not explicitly stated in the law; (4) are recognized by judicial practice; (5) are aimed solely at eliminating legal uncertainty. The unity of features determines the need to analyze these types of claims within a single study. Purpose: to establish the reasons for the occurrence in practice of claims for recognition of a registered contract as terminated and the right of obligation as absent. Methods: general scientific (dialectical) method of cognition of scientific concepts of private law; special scientific methods of cognition: formal-legal method, historical-legal method, method of comparative legal studies, forecasting. Results: the transition of the claim for recognition of the right of obligation as absent to the category of remedies directly referred to in acts of official interpretation of law entails great risks. As soon as the emerging practice is recorded in an act of interpretation, the following will happen. Firstly, the number of cases of its use in practice will be likely to increase, which will entail an increased burden on courts. Secondly, there will appear the prerequisites for the full formal legalization of the phenomenon, as has already happened with the recognition of a contract as not concluded and the recognition of the right to a thing as absent. Should there be no registration actions in the Russian legal system, there would not be so many claims of a negative legal nature recognized by practice, including the claim for the recognition of a registered contract as terminated. Protective legal rules aimed at regulating claim-based relations that have the purpose of ensuring a more stable existence of regulatory relations are often formalized in the law, being widely applied in practice by the time changes are introduced into the law.

scholarly journals MODERN TECHNOLOGIES OF ACQUISITION OF FUNDS OF CITIZENS BY THE FINANCIAL PYRAMID

2018 ◽  
Vol 4 (4) ◽  
pp. 356-360
Author(s):  
Sergii Cherniavskyi ◽  
Andriy Zapototskyi ◽  
Anton Syzonenko
Keyword(s):  
Criminal Activity ◽  
Active Phase ◽  
Structural Method ◽  
Law Enforcement Agencies ◽  
Legal Form ◽  
Scientific Methods ◽  
Judicial Practice ◽  
Legal Method ◽  
General Scientific ◽  
Concepts Of Technology

The purpose of the article is to study the criminalistics of the use of the most common technologies of acquisition of funds of citizens, done by the way of the financial pyramid. The subject of the study is the content of criminal technology of fraudulent way of the financial pyramid. Methodology. The research is based on the use of general scientific and special-scientific methods and methods of scientific knowledge. The historical-legal method allowed determining the genesis of the concepts of “technology of criminal activity” and “financial pyramid”, as well as the formation of scientific and theoretical views on problems and methods of combating them. The comparative legal method was used to compare the doctrinal approaches of legislative regulation to counteract fraud committed by the method of the financial pyramid. The system-structural method contributed to the awareness of the technologies of preparing, committing, and concealing the fraud. The methods of grouping and classification were the basis for the author’s approach to the differentiation of technologies for the acquisition of funds of citizens, depending on the organizational and legal form, under the cover of which a financial pyramid was created. The statistical method is used in the analysis of investigative and judicial practice for ten years. The results of the study showed that the method of financial pyramid used for committing fraud is fully structured and includes criminal technologies for preparing, committing, and concealing the fraud. The combination of separate technologies in the mechanism of the crime is aimed at masking the active phase of criminal activity under civil-law relations, which complicates the timely detection of the signs of the crime both by the victim and by law enforcement agencies. Practical implications. The research carried out the typing of fraudulent techniques using the financial pyramid method, which is the basis for developing and improving methods of disclosure and investigation of crimes. Value/ originality. On the basis of the proposed author’s approach to the differentiation of technologies of criminal activity, it is possible to predict the emergence of the new ways of committing fraud in the financial sector.

scholarly journals Constitutionalization of legal policy in modern Russia

2018 ◽  
Vol 2 (4) ◽  
pp. 25-29
Author(s):  
D. Avdeev
Keyword(s):  
Comparative Method ◽  
Strategic Development ◽  
Legal Policy ◽  
Scientific Methods ◽  
Road Map ◽  
Legal Method ◽  
Scope Of Application ◽  
General Scientific ◽  
State And Local ◽  
Constitutional System

The subject. The paper is devoted to the constitutional basis of modern legal policy.The purpose of the paper is to confirm or disprove the hypothesis that constitutional concept of legal policy is necessary basis of reform of legal relations between constituent entities in federative state.The methodology of the study includes general scientific methods (analysis, synthesis, comparative method, description) as well as particular academic methods (formal-legal method, interpretation of legal acts).The main results, scope of application. The emergence and further development of a legal policy based on constitutional provisions and norms continues to impact significantly on the organization of state and local authorities. Democracy, federalism, republicanism and legalism are the four components that can form the basis for the development of the doctrinal conception of legal policy aimed to the strategic development of these constitutional axiomatic postulates. In Russia there is no clearly defined "road map", which is based on the strategic planning of the constitutional system. The Constitution of the Russian Federation contains enough inaccuracies of both legal and technical and substantive nature.Conclusions. It is necessary to develop a concept of legal policy. Such concept is necessary basis of reform of legal relations between constituent entities in federative state.

scholarly journals Modern state of the judicial finance-credit examination and the prospects of its development

2020 ◽  
pp. 1-8
Author(s):  
Elina Sergeevna Sarygina
Keyword(s):  
Law Enforcement ◽  
Interdisciplinary Approach ◽  
Law Enforcement Officers ◽  
Modern State ◽  
Criminal Proceedings ◽  
Scientific Methods ◽  
Judicial Practice ◽  
General Scientific ◽  
Substantive Law ◽  
Court Expert

The research subject is the scientific, organizational and methodical regularities of judicial and examination activities during the research of finance-credit relations. Special attention is given to the key provisions of finance-credit examinations and the peculiarities of their commissioning. The author uses the categories and laws of dialectical and formal logic along with general scientific methods of scientific cognition (observation, description, comparison, systematization, formalization, etc.), and specific methods (comparative-analytical and system-structural). The author also uses the techniques of the interdisciplinary approach since the research requires knowledge in the field of procedural and substantive law, theory of court examination, economics and banking law, which determines the comprehensive nature of the research. From the viewpoint of modern scientific knowledge, the author attempts to analyze court examination as an independent class of judicial economic examinations which includes objects, subclasses, typical tasks and scientific and methodical recommendations for law enforcement officers about commissioning such examinations. The research addresses the main provisions of the subtheory of a judicial finance-credit examination which either haven’t been described sufficiently enough in the scientific works, or haven’t been systematised. The author’s recommendations are aimed at unification of the judicial practice of commissioning and assessment of the results of a judicial finance-credit examination. The formation of a comprehensive idea about this examination and its modern state is necessary for the implementation of its possibilities by an investigator, a court or an inquiry officer within criminal proceedings. The result of the research is the development of recommendations for law enforcement officers about the peculiarities of commissioning of a court tax analysis in governmental and nongovernmental criminal expertise institutions connected with the peculiarities of preparation of research objects and the specificity of issues subject to the consideration of a court expert; the author formulates the list of questions to an expert.

scholarly journals The Forms of Criminal Prosecution

Legal Concept ◽  
2021 ◽  
pp. 167-175
Author(s):  
Ilya Dikarev ◽  
◽  
Sailaubek Baymanov ◽  
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Prosecution ◽  
Legal Interpretation ◽  
Scientific Methods ◽  
Theoretical Position ◽  
Analysis And Synthesis ◽  
General Scientific ◽  
The Subject ◽  
The Common

Introduction: the paper discusses the possibility of differentiating the forms of criminal prosecution. The critical analysis is subject to the widespread position in the science of criminal procedure that the forms of criminal prosecution are suspicion and accusation. This point of view is based on the conclusion that the content of criminal prosecution varies depending on the degree of proof of the guilt of the person subject to criminal prosecution. Concerning compliance with the principle of adversarial parties, the theoretical position is also evaluated, according to which one of the forms of criminal prosecution is conviction. The question of the grounds for differentiating the forms of criminal prosecution is studied. Purpose: the confirming the unified nature of the criminal prosecution carried out during the pretrial proceedings, regardless of the procedural position of the person accused of committing the crime. Methods: the paper uses the general scientific methods of analysis and synthesis, a systematic approach, as well as specific scientific methods: legal interpretation and logical-legal. The methodological framework was the dialectical method. Results: the study of the common position in the science of criminal procedure, according to which criminal prosecution at different stages of its implementation consistently takes the forms of suspicion and accusation, showed its inconsistency. From the standpoint of philosophy, the content always has a determining value, and the form is always determined. Accordingly, to establish a change in the form of criminal prosecution, it is necessary to make sure that the content of this activity changes. However, the degree of proof of the person’s involvement in the crime is not reflected in the content of the accusatory activity, it remains the same. Therefore, suspicion and accusation do not form the independent forms of criminal prosecution. At the same time, the differentiation of the forms of criminal prosecution is possible, but on different grounds. Conclusions: the differentiation of the forms of criminal prosecution should be made depending on, first, the organization of procedural activities that determine the role and powers of the subject of criminal prosecution in the process of proof; secondly, the procedural status of the participant in the criminal process on the part of the prosecution and, thirdly, the content of the fact in issue.

scholarly journals JURISDICTION OF APPLICATIONS FOR THE REVISION OF JUDICIAL ACTS ON NEWLY DISCOVERED OR NEW CIRCUMSTANCES AND THE PROCEDURAL AND LEGAL CONSEQUENCES OF ITS VIOLATION

2020 ◽  
Vol 24 (4) ◽  
pp. 1141-1168
Author(s):  
Safura T. Bagylly ◽  
Larisa N. Pavlova
Keyword(s):  
Legal Regulation ◽  
Court Decisions ◽  
Unified Approach ◽  
Scientific Methods ◽  
Judicial Practice ◽  
Scientific Analysis ◽  
Domestic Legislation ◽  
General Scientific ◽  
Administrative Proceedings ◽  
Legal Consequences

The article deals with the problematic items of choosing a court competent to review court decisions that have entered into legal force on newly discovered or new circumstances in civil and administrative proceedings. The aim of the authors is to conduct a study of the legal regulation of the jurisdiction of applications for review. The methodological basis of the article was formed by general scientific (analysis, analogy, description, synthesis, and systemic approach) and particular scientific methods (historical-legal, comparative-legal, and formal-legal). A retrospective analysis of legal acts of domestic legislation has been carried out. According to the results of the study, difficulties relate to interpreting and applying the existing rules on determining the appropriate instance for revision. Based on the analysis of the judicial practice of courts of general jurisdiction and arbitral courts, the authors come to the conclusion that there is no unified approach of the courts in determining the procedural and legal consequences of violations of the rules of jurisdiction. The conclusion summarizes proposals for improving the current legislation to eliminate ambiguities and achieve uniformity in judicial practice.

scholarly journals THE LEGAL FATE OF THE OBJECTS PLACED IN AREAS WITH SPECIAL CONDITIONS FOR THE USE OF TERRITORIES IN VIOLATION OF ESTABLISHED RESTRICTIONS

2020 ◽  
Vol 24 (4) ◽  
pp. 1063-1077
Author(s):  
Marina S. Muravyeva
Keyword(s):  
Scientific Knowledge ◽  
Legal Regulation ◽  
Legal Regime ◽  
Methodological Basis ◽  
Judicial Practice ◽  
Legal Method ◽  
Logical Method ◽  
General Scientific ◽  
Method Analysis ◽  
Legal Grounds

The author considers the problem of placing buildings, structures and other objects in zones with special conditions for the use of territories in violation of the restrictions on the use of land plots established by law. Until August 2018, this issue was not regulated in the legislation, as well as the legal regime of protected zones and other zones with special conditions for the use of territories was not properly regulated. At the same time, the judicial practice on disputes over the demolition of these objects was not uniform. In connection with the adoption (in August 2018) of legislative acts affecting both the legal regulation of unauthorized buildings and regulation of the legal regime of zones with special conditions for the use of territories, the work makes attempts to analyze the current legislation, the main positions of the courts and understand the reasons that caused the adoption of new legislative acts. The author comes to the conclusion that at present the legal fate of objects located in zones with special conditions for the use of territories in violation of the restrictions established for land plots depends on a number of circumstances identified by the judicial authorities when considering disputes and having been enshrined in the norms of law. The methodological basis of the research is made up of general scientific (in particular, logical) and special legal (formal legal) methods of scientific knowledge. The logical method (analysis, synthesis, deduction, induction, analogy, etc.) made it possible to identify various legal grounds for the demolition of objects built in zones with special conditions for the use of territories in violation of the established restrictions. With the help of the formal legal method, the court practice of the applying the norms of civil legislation on unauthorized constructions in relation to the placement of objects in zones with special conditions for the use of territories was analyzed.

scholarly journals Categories of reasonableness and good faith in private law regulation

2021 ◽  
Vol 7 (3A) ◽  
pp. 60-66
Author(s):  
Natalya I. Besedkina ◽  
Vasily V. Gushchin ◽  
Taimuraz E. Kallagov ◽  
Tatiana V. Larina ◽  
Zlata V. Makarchuk
Keyword(s):  
Financial Markets ◽  
Good Faith ◽  
Private Law ◽  
Structural Concrete ◽  
Scientific Methods ◽  
Methodological Basis ◽  
Legal Nature ◽  
Two Factors ◽  
General Scientific ◽  
Law Regulation

The purpose of the article is to study the legal nature and essence of the categories of reasonableness and good faith in the field of private law regulation in the legislation of modern Russia. The methodological basis of the research was the general scientific dialectical method of cognition and the private scientific methods that follow from it: system-structural, concrete-sociological, technical-legal, historical-legal, and comparative legal methods. Their application allowed the authors of the article to study the objects under consideration in their interrelation, integrity, comprehensively and objectively. The article concludes that good faith is essential in filling the gaps in the legislation. It is not always possible to establish a single rule, to approve a norm that excludes unfair conduct. The gaps are not only due to legislative errors. Two factors have an important impact: the diversity of relations and their constant development in different areas (for example, e-commerce, financial markets).

Constitutional and Legal Institute of the Ombudsman and Specialized Ombudsman for Migration in Foreign Countries: Formation and Development

2021 ◽  
pp. 54-61
Author(s):  
S. G. Trifonov ◽  
◽  
K. V. Trifonova
Keyword(s):  
Public Relations ◽  
Migrant Workers ◽  
Legal Rights ◽  
Scientific Methods ◽  
Legal Method ◽  
Special Scientific ◽  
Scientific Principles ◽  
Logical Method ◽  
General Scientific ◽  
Rights And Interests

Currently, the Ombudsman is a traditional component of democratic legal systems. The creation of such a body, as noted in the Council of Europe Resolution «On the role of commissioners/ombudsmen in the protection of citizens’ rights», which would try to ensure justice, respect for the foundations of the rule of law and at the same time be able to establish a dialogue with citizens, is necessary in many States. The purpose and objectives of this article are to consider the issues of the emergence and development of the constitutional-legal institution as an Ombudsman in General, and the evolution of this institution, in which there were various models and types of ombudsmen. It is also necessary to describe the existing models of the Ombudsman applied in different States. The article examines the functional specialization of ombudsmen, which occurs through the introduction of ombudsmen in certain areas of public relations or to protect the rights and interests of the most legally vulnerable categories and groups of the population, and specifically the emergence of the institution of migration ombudsmen. The methodology of the article is based on a set of philosophical and worldview, General scientific principles and approaches and special scientific methods of cognition of constitutional and legal phenomena. When writing, a number of General scientific and special scientific methods were used, including: system and structural-functional methods, sociological method, formal-logical method, comparative-legal method. As a result of the research, we can conclude that the essential characteristics of the Ombudsman institution have changed from the institution of supervision of the administration and the court to the most important human rights mechanism that it represents at the present stage. Within the framework of the functioning of the institution of the Ombudsman, different models have been identified in different States and specialized ombudsmen have appeared, including those dealing with the protection of the legal rights and interests of migrant workers.

Socio-cultural component of hotel and restaurant complexes as a subject of scientific interest Ukrainian researchers

2021 ◽  
pp. 24-29
Author(s):  
Olga Danylenko
Keyword(s):  
Research Problem ◽  
Scientific Methods ◽  
Main Research ◽  
Complex Concept ◽  
System Method ◽  
General Scientific ◽  
Cultural Component ◽  
Identification Analysis ◽  
Relaxation Component ◽  
Scientific Achievements

The purpose of the article is to systematize the scientific achievements of Ukrainian researchers in the field of modern hotel and restaurant complexes with an emphasis on the socio-cultural component of their service. The methodology is based on general scientific methods (analysis, synthesis, generalization) and the principles of objective analysis of facts and reliability. Content analysis of the scientific literature made it possible to solve the main research problem. Structural-system method - to systematize the obtained results. The interdisciplinary of scientific methodology has prompted the use of methods integrated from a number of disciplines - economics, culturology, art history, and others. The scientific novelty lies in the identification, analysis and systematization of dissertation research of Ukrainian scientists in the field of modern hotel and restaurant complexes with an emphasis on cultural and leisure and recreational and relaxation component of their service. Conclusions. In Ukrainian science, attempts to study the cultural and leisure and recreational and relaxation component of the service of hotel and restaurant complexes are embodied only in some publications. At the same time, science only affirms the complex concept of "hotel and restaurant" complex. The activities of the latter, as centers of culture and leisure, remain on the margins of modern research interest. As an important component of modern service, socio-cultural activities are usually reduced to logistical and sectorial production aspects. However, the cultural and leisure and recreational component of modern complexes affects the transformation of the traditional basis of society, which indicates its focus on meeting the needs and interests of man, which best characterizes its compliance with the requirements of the time, focused on humanizing all realities of life.

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