ON INTERACTION OF MATERIAL AND PROCEDURAL LAW IN THE CONTEXT OF REFORMING THE NOMENCLATURE OF SCIENTIFIC SPECIALTIES IN JURISPRUDENCE

2021 ◽  
Vol 3 (3) ◽  
pp. 214-231
Author(s):  
S.I. Suslova
Keyword(s):  
Civil Law ◽  
Scientific Research ◽  
Civil Procedure ◽  
Dialectical Logic ◽  
Advantages And Disadvantages ◽  
Procedural Law ◽  
Depth Study ◽  
Civil Science ◽  
Substantive Law ◽  
The Relationship

Introduction: the influence of the material branches of law on the content and development of procedural branches has long been substantiated in the legal literature. At the same time, civil law scholars, limited by the scope of the nomenclature of scientific specialties in legal sciences, do not have the opportunity to conduct dissertation research aimed at identifying the influence of procedural branches on the norms of substantive law. With regard to scientific research, the study of such an impact is currently permissible only within the specialty 12.00.15. Reforming the nomenclature of scientific specialties towards its enlargement creates the basis for the development of the scientific theory of intersectoral relations, developed by M.Iu. Chelyshev. An in-depth study of the intersectoral interaction of civil law and civil procedure will contribute not only to the development of scientific knowledge, but also will allow solving practical problems at a different methodological level. Purpose: to analyze the stages of the formation of scientific specialties in the context of the relationship between civil law and procedure, to identify the advantages and disadvantages of uniting and dividing civil law and procedure in scientific research, to analyze dissertations in different periods of development of the science of civil law and the science of civil procedure, to formulate ways to improve directions of research to bridge the gap between the science of civil law and procedure. Methods: empirical methods of description, interpretation; theoretical methods of formal and dialectical logic. The legal-dogmatic private scientific method was used. Results: identified the main views on the ratio of material and procedural branches in legal science; it is illustrated that the intersectoral approach is currently admissible only for dissertations in the specialty 12.00.15, which led to an almost complete absence of scientific research on this topic in civil science; substantiated the need to establish the bilateral nature of the relationship and interaction of material and procedural block. Conclusions: reforming the nomenclature of scientific specialties by right in the direction of their enlargement should have a positive effect on bridging the gap that has developed between works on civil law and civil law procedure in the last years of their separate existence. This is especially true of civil science, which developed its own scientific theories in isolation from the possibilities of their implementation within the framework of procedural law. The methodological basis for solving these problems has already been formed – this is an intersectoral method, the application of which is justified and demonstrated in the works of M.Iu. Chelyshev.

scholarly journals Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

2021 ◽  
pp. 240-262
Author(s):  
V. G. Golubtsov ◽  
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Modern Science ◽  
Legal Regulation ◽  
Public Law ◽  
Procedural Law ◽  
The One ◽  
The Right ◽  
Substantive Law ◽  
The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

On some issues of civil law understanding of fake deals

2020 ◽  
Vol 7 (1) ◽  
pp. 34-38
Author(s):  
Nataiya M. Lakocenina
Keyword(s):  
Research Methods ◽  
Civil Law ◽  
Scientific Research ◽  
Practical Significance ◽  
Socioeconomic Conditions ◽  
Distinctive Features ◽  
Methodological Basis ◽  
Civil Science ◽  
The Relationship ◽  
Legal Consequences

The civil legislation reform and the complexity of the socioeconomic conditions in our country have increased the scientific and practical significance of research related to the clarification of the concept of fake transactions, their relationship with other (related) transactions, and the establishment of their legal consequences. These issues, which have no unity in civil science, are discussed in the proposed article. The article analyzes the concepts and attributes of fake transactions, their qualitative and distinctive features, the specifics of their invalidity (nullity), and the relationship with related invalid (nullity) agreements (transactions). This statement of the articles content determines its theoretical and practical significance as well as its relevance. The methodological basis of the research includes the well-known general and particular scientific research methods. The objectives of the proposed article are as follows: to clarify and form the authors concept of fake transactions, to establish their distinctive features, to define the place of fake contracts in the invalid transactions system, and to clarify the features of fake transaction invalidity.

scholarly journals Some Arguments about the Benefits of Applying the System of Civil Procedure Law in Civil Proceedings

2020 ◽  
pp. 060-066
Author(s):  
A. D. Zolotukhin ◽  
◽  
L. A. Volchihina ◽  
Keyword(s):  
Positive Result ◽  
Civil Procedure ◽  
Legal Norms ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Definition Of ◽  
Relationship Of ◽  
The Relationship

On the basis of research, the structure of civil procedural law is defined as a system rather than an elementary set of legal norms and institutions. Determining the significance of the system of civil procedural law, it was concluded that having individuality, such a structure is one of the features that distinguish civil procedural law from other branches of law. The authors also come to the conclusion that the established properties of the system of civil procedural law, such as unity, interconnection (interaction) and independence of application, determine the possibility of applying individual elements of the structure of the system of civil procedural law, when considering substantive situations as an independent both individually and collectively. This ensures the possibility of obtaining the required positive result and characterizes it as universal. Critically examining various concepts, the authors offer their own definition of the concept of the system of civil procedural law. The conclusion is also made about the relationship of the system of civil procedural law with the principles of civil procedural law and the procedural form of civil legal proceedings.

scholarly journals ZASADA PRAWDY FORMALNEJ W POLSKIM CYWILNYM PRAWIE PROCESOWYM A ROZUMOWANIA NIEMONOTONICZNE

2016 ◽  
Vol 16 (2) ◽  
pp. 37
Author(s):  
Marcin Trepczyński
Keyword(s):  
Civil Law ◽  
Legal Reasoning ◽  
Civil Procedure ◽  
Civil Court ◽  
Procedural Law ◽  
Procedural Code

The Principle of Formal Truth in the Polish Civil Procedural Law and Non-monotonic ReasoningSummary This paper analyses the implementation of the formal truth principle in the Polish civil procedural code in the light of non-monotonic reasoning. The author starts by presenting the concept and applications of non-monotonic reasoning, and the formal truth principle and its place in Polish civil procedure. Next he examines the conditions in which non-monotonicity is admissible in civil court reasoning. While legal reasoning may generally be regarded as non-monotonic due to the assumptions it employs and treats as defensible, the author’s observations on the basis of selected civil law cases lead him to the conclusion that the use of the formal truth principle as a viable instrument in law simply forces courts to make non-monotonic inferences. In other words, adopting this principle means accepting non-monotonic reasoning, or even more: if the court keeps to the formal truth principle it is using one of the types of non-monotonic logic.

scholarly journals REFORM OF CIVIL PROCEDURAL LAW AT THE APPELLATE-LEVEL COURTS IN INDONESIA

2016 ◽  
Vol 28 (2) ◽  
pp. 348
Author(s):  
Mohammad Amir Hamzah
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Procedure ◽  
Procedural Law ◽  
The Supreme Court

AbstractThe frst court and the appellate-level court serve as the judex facti, but there are different regulations about procedural law in HIR, RBG, and Law No. 20 of 1947. It causes high fling of cassation appeals. As a result, the Supreme Court is impaired in fostering and developing the (civil) law due to it being hectic from examining cases. Through reform of civil procedure law of the appellate­level court (PT), the court will be placed in the appropriate position as the means of fltering proceedings, so that not all cases can be fled for a cassation appeal. It is also the time to revoke Law No. 20 of 1947.IntisariPada dasarnya Pengadilan Negeri dan Pengadilan Tinggi diposisikan sebagai judex facti. Namun demikian, terdapat beberapa pengaturan mengenai hukum acara perdata mulai dari HIR, RBG hingga UU No.20 Tahun 1947 yang mengatur hal tersebut secara berbeda. Akibatnya, pengajuan kasasi meningkat sehinggamengganggu fokus Mahkamah Agung melaksanakan fungsi pembinaan hukum. Seharunya pengadilan banding diposisikan sebagai penyaring sehingga tidak semua kasus dapat diajukan ke banding dan kasasi. Selain itu, melalui pembaharuan hukum ini juga UU Nomor 20 Tahun 1947.

Enforcing Anti-Discrimination Law in Greece

2019 ◽  
pp. 195-213
Author(s):  
Stamatina Yannakourou ◽  
Dimitris Goulas
Keyword(s):  
Civil Law ◽  
Legal Framework ◽  
Civil Procedure ◽  
Systematic Change ◽  
Labour Law ◽  
Limited Role ◽  
The Individual ◽  
Substantive Law

This chapter analyses the causes of the courts’ limited role in the enforcement of anti-discrimination law in Greece. The authors identify substantive law barriers stemming from the courts’ conservatism to implement an unfamiliar legal framework, as well as procedural deficiencies of the individual litigation system itself. They reveal how these, separately and in combination, affect the judicial enforcement of anti-discrimination law. It is argued that anti-discrimination law will not be enforced effectively in Greece as long as it cannot be accommodated within the rules of more traditional areas of law, such as civil law, labour law, and civil procedure law. Therefore, a broader proactive enforcement strategy should be developed, associating the courts institutionally with the Ombudsman as equality body, in order to obtain remedies that would not only benefit individuals but also seek to achieve a more systematic change of policies, practices, and societal attitudes.

A Universal Procedural Framework for War Crimes Tribunals

2012 ◽  
Vol 14 (2) ◽  
pp. 85-116
Author(s):  
Elijah Oluwatoyin Okebukola
Keyword(s):  
Process Evaluation ◽  
Ad Hoc ◽  
War Crimes ◽  
Model Framework ◽  
Procedural Law ◽  
Substantive Law ◽  
War Crimes Tribunals ◽  
The Relationship

Abstract Notwithstanding the uniformity of war crimes substantive law, applicable procedural rules vary from jurisdiction to jurisdiction. In the case of ad hoc tribunals, the applicable rules may not be known until the tribunal is established. Consequently, there is uncertainty and incoherence in war crimes procedural law. Furthermore, the quality of applicable rules is dependent on the varying experience, knowledge and intentions of the framers of the procedural rules of each tribunal. This article makes the case for a universal procedural framework that can serve as an instrument for evaluating and creating war crimes procedural rules. Amongst other things, such a framework will bring about certainty and coherence in war crimes procedural law. In devising the model framework, the article adopts the Benthamite approach to the relationship between substantive law and procedural law and also relies on some aspects of the process evaluation theories of Robert Summers and Michael Bayles.

scholarly journals Protective function of labour law and amendments to the code of civil procedure

2021 ◽  
Vol 124 ◽  
pp. 35-46
Author(s):  
Anna Boguska ◽  
Łukasz Pisarczyk
Keyword(s):  
Civil Procedure ◽  
Employment Relationship ◽  
Labour Law ◽  
Protective Function ◽  
Procedural Law ◽  
Civil Proceedings ◽  
New Institutions ◽  
Polish Code ◽  
Substantive Law

The purpose of this article is to present the safeguard role of the labour law in the context of labour law disputes. Authors deliberate to what extent the procedural law impacts the substantive law. Particular attention was paid to new institutions of the Polish code of civil proceedings introduced by the law of 4 July 2019 and their influence on the procedural position of the parties of the employment relationship.

scholarly journals Settlement and other results of the procedure of judicial conciliation

2020 ◽  
pp. 1-11
Author(s):  
Natal'ya Nikolaevna Makarenko
Keyword(s):  
Civil Law ◽  
Civil Procedure ◽  
The Other ◽  
Comparative Perspective ◽  
Procedural Law ◽  
Legal Nature ◽  
Legal Precedent ◽  
Judicial Procedure

This article is dedicated to the question of the essence of a settlement within the framework of judicial conciliation procedure. The issue is being explored from comparative perspective, where the essence of a settlement within the framework of judicial conciliation procedure is compared to the essence of a similar institution in terms of mediation procedure. The work examines legal precedent and doctrinal opinions of experts on the issues of legal essence of judicial conciliation as ones established by judicial and non-judicial procedure of conciliation. The author highlights the key aspect of the procedure of judicial conciliation in relation to reaching a settlement, including the rights and obligations of the parties to the process from one side, and the court on the other. The conclusion is made that the legal nature of settlement represents a mixture, comprised of elements of material (civil law), as well as procedural (civil procedure) law. A claim is made that within the framework of the judicial conciliation procedure, the legal nature of a settlement contains more procedural law elements than that of mediation procedure, which is explained by the broader authority of the court and correlating reduced authority of the parties than in terms of a mediation procedure.

scholarly journals Development of Tax Procedural Law and Sectoral Case Law in Selected Countries

2018 ◽  
Vol 16 (1) ◽  
pp. 119-136
Author(s):  
Tjaša Vozel
Keyword(s):  
Income Tax ◽  
Case Law ◽  
Legal Certainty ◽  
Personal Income Tax ◽  
Constitutional Courts ◽  
Advantages And Disadvantages ◽  
The Third ◽  
Procedural Law ◽  
Red Tape ◽  
Substantive Law

The purpose of this paper is to examine the development of the Slovenian Tax Procedure Act and amendments thereto until 2017, in order to broaden the field knowledge on tax procedures within the administrative system as a whole. The Tax Procedure Act provides the general framework of the procedural tax system in Slovenia. The first version of the Tax Procedure Act (ZDavP) was adopted in 1996 and followed by five amending acts until the adoption of the second version (ZDavP-1) in 2004. The third and currently applicable version of the Tax Procedure Act (ZDavP-2) has been subject to over ten amendments so far. Furthermore, the study aims to compare the development of tax procedure in Slovenia and Sweden. Based on the normative and comparative analyses, review of domestic and foreign literature, and case law analysis, the advantages and disadvantages of the development of tax procedure in Slovenia were identified. The amendments analysed contributed mainly to simplifying the tax procedure, reducing red tape, decreasing costs, improving the efficiency of the tax authorities, and providing greater legal certainty for the taxpayers. Most changes to the Tax Procedure Act involved the personal income tax. An empirical study of the case law of the Administrative, Supreme and Constitutional Courts in selected period further showed that errors were mainly detected in relation to substantial violation of procedural requirements rather than incorrect application of substantive law. The study contributes to administrative and legal science and the tax profession as such. The results can be useful when drafting new tax procedural legislation to improve its effectiveness.

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