scholarly journals Problems of Legal Regulation of Issues of Redistribution of Shares in the Right of Common Property

2021 ◽  
Vol 7 (9) ◽  
pp. 460-465
Author(s):  
N. Ablyatipova ◽  
Kunitsa
Keyword(s):  
Common Property ◽  
Legal Regulation ◽  
Share Ownership ◽  
Judicial Practice ◽  
The Right

The article is devoted to the peculiarities of legal regulation of the redistribution of shares in the right of common share ownership. The authors examine issues of the overall legal characteristics of the share ownership, the possibility of redistribution of shares, judicial practice is analyzed. It is concluded that it is necessary to improve legislative norms that regulate the possibility of redistribution of shares when using maternal funds

scholarly journals Settlement of disputes upon termination of employment contract by agreement of parties

2020 ◽  
Vol 164 ◽  
pp. 11028
Author(s):  
Nina Semeryanova ◽  
Ilona Vasenina ◽  
Ibragim Aitov ◽  
Elizaveta Sedelnikova
Keyword(s):  
Job Search ◽  
Legal Regulation ◽  
Research Approach ◽  
Employment Contract ◽  
Severance Pay ◽  
Scientific Methods ◽  
Judicial Practice ◽  
The Right ◽  
Settlement Of Disputes ◽  
To Receive

The article discusses features of legal regulation of these legal relations, analyzes judicial practice. The leading research approach includes such scientific methods as dialectics, analysis, synthesis, and deduction, comparative legal and formal legal methods. The authors conclude that termination of severance pay stipulated by the agreement on termination of the employment contract does not indicate its illegality. The employee must be guaranteed the right to receive financial support for the period of job search, as well as the fulfillment of a voluntary obligation by the employer. The absence of acts providing for compensation payments in the organization is not a reason for refusing to pay severance pay. The conclusion of an agreement on termination of an employment contract has several advantages, provided that the obligations undertaken by the parties are met in good faith.

Counterclaim and procedural aspects of its filing in the arbitration process

2021 ◽  
pp. 564-579
Author(s):  
Anna F. Meshcheryakova
Keyword(s):  
Legal Regulation ◽  
Poor Quality ◽  
Court Ruling ◽  
Judicial Practice ◽  
Arbitration Process ◽  
Complicated Process ◽  
Common Opinion ◽  
The Right ◽  
Practical Recommendations

We study the issues arising in connection with the presentation of a counterclaim by the defendant in the arbitration process. The content of the concept of a counterclaim is disclosed, its connection with the right to judi-cial protection is determined, and the features characteristic of this institution are highlighted. The conditions for filing counterclaims are considered. We identify some problems that arise in judicial practice when using a counter-claim as a means of protecting the defendant. It is shown that legal uncer-tainty leads to the lack of a common opinion among the courts regarding compliance with all the criteria necessary for filing a counterclaim, which leads to a complicated process and poor-quality consideration of the case. The inadequate level of legal regulation of the institution in question also creates problems related to the return of a counterclaim and with the appeal of the relevant court ruling. We study the judicial practice devoted to the so-lution of the mentioned issues. It is concluded that the right to file a counter-claim actually depends entirely on the discretion and will of the court, which often leads to its violation. Practical recommendations have been developed aimed at overcoming legal gaps in this area, optimizing and improving the current legislation in terms of filing a counterclaim.

scholarly journals Human dignity as a fundamental basis and a practical tool of “right to hope” in criminal law

2021 ◽  
pp. 23-30
Author(s):  
Slipachyk Slipachyk
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Legal Regulation ◽  
Scientific Article ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Legal Analysis ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
The Right

The scientific article focuses on the analysis of a sentence of life imprisonment without a realistic prospect of release in Ukraine as a violation of the “right to hope” in the context of the human dignity category. The study provides an overview of approaches to the definition of human dignity in national legal doctrine and practice, a historical and legal analysis of the origins of legal regulation of the idea of ​​respect for human dignity in international legal acts, and analyses the constitutional stages of the evolution of this concept as a matter of international law. The author has reviewed the jurisprudence of the European Court of Human Rights on this issue and studied the reasons of the Court on setting standards for acceptable treatment of a person through the lenses of human dignity and the inadmissibility of inhuman and degrading offences. Taking into account these standards, a critical assessment has been carried out, in particular, of the judicial practice of the Federal Republic of Germany on the application to a prisoner of such a type of punishment as preventive detention with indefinite duration. Emphasis has been given to the national judicial practice in cases of possible releasing life-sentenced prisoners in the conclusions of the Grand Chamber of the Supreme Court and the decision of the Constitutional Court of Ukraine on this issue. Based on the results of the study, a set of measures, including amending the legislation to bring it in line with the requirements of European human rights standards to protect human dignity and ensure the “right to hope” has been offered.

scholarly journals ON THE USE OF VIDEOCONFERENCING IN PRE-TRIAL CRIMINAL PROCEEDINGS

2020 ◽  
Vol 16 (4-2) ◽  
pp. 67-76
Author(s):  
Регина Шагеева
Keyword(s):  
Preliminary Investigation ◽  
Legal Regulation ◽  
Criminal Proceedings ◽  
Dialectical Logic ◽  
Advantages And Disadvantages ◽  
Judicial Practice ◽  
Foreign Countries ◽  
Legal Foundations ◽  
Challenging Situation ◽  
The Right

An urgent issue at the current stage of the development of criminal procedure is the use of videoconferencing in pre-trial criminal proceedings. The interest in this topic is caused both by the lack of legal regulation and ongoing discussions in the scientific community, as well as by the emerging and challenging situation with regard to the threat of coronavirus infection. In the context of the pandemic, the Court has acquired the right to conduct all criminal proceedings using videoconferencing systems, and investigators and interrogators are prevented from using remote technologies even during such an investigative action as an interrogation. This problem requires research and resolution by both scientists and legislators. Purpose: to analyze and develop scientific and legal foundations for the use of videoconferencing in pre-trial criminal proceedings. Methods: the author uses empirical methods of comparison, description, interpretation as well as theoretical methods of formal and dialectical logic. Results: the study makes it possible to trace the gradual increase in the use of videoconferencing in criminal proceedings, to analyze the advantages and disadvantages of the introduction of remote technologies at the preliminary investigation stage, to identify gaps in the legal regulation of this issue in criminal proceedings, to propose a solution to the problem taking into account the emerging judicial practice, and the legislation of a number of foreign countries.

scholarly journals ON THE QUESTION OF PERSONAL NON-PROPERTY RIGHTS UNDER CONDITIONS OF QUARANTINE MEASURES TO PREVENT THE DISTRIBUTION OF COVID-19 ON THE TERRITORY OF UKRAINE

2020 ◽  
Vol 11 (87) ◽  
Author(s):  
Inna Horislavska ◽  
◽  
Anastasiia Androshchuk ◽  
Keyword(s):  
Property Rights ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Moral Rights ◽  
Freedom Of Movement ◽  
Judicial Practice ◽  
The Social ◽  
Legal Nature ◽  
Fundamental Rights And Freedoms ◽  
The Right

Now the world countries ran into the sharp problem of overcoming and counteraction to distribution in the whole world of COVID-19, and also application of responsibility for violation of quarantine. It is set on results research, that the personal unproperty rights for citizens were exposed to rather significant limitations, in fact normatively-legal acts in relation to responsibility for violation of quarantine and sanitary rules for prevention of COVID-19 have a row of legal contradictions. In the article on the basis of analysis of current national legislation, considerations of cases and theoretical and legal sources are investigated effective mechanisms of the legal providing of requirements of observance of sanitary rules and norms on prevention of infectious diseases in Ukraine. The problems of determination of legal nature, maintenance and realization of the personal unproperty rights open up in the conditions of introduction of quarantine events on warning of COVID-19. The article describes the concept of "the right to freedom of movement". This right was and is now more than ever one of the fundamental personal moral rights. The article examines the judicial practice of resolving cases in the context of the introduction of quarantine measures and ensuring the fundamental rights and freedoms of an individual through the introduction of technical means and risks that may arise in appropriate conditions. Proposals to eliminate the shortcomings of legal regulation in the studied area are substantiated. Human rights and freedoms, the degree of their recognition in the state and society, the level of their protection are determined by the type of its socio-economic organization, as well as the degree of social development and democratization of society. Personal non-property rights that ensure the social existence of an individual, including the right to freedom of movement, are closely related, both those that can be limited at the legislative level under certain conditions, and those that are not "subject to" such restrictions. Therefore, restrictions on the freedom of movement of an individual are possible only in cases provided by the Constitution and the Civil Code of Ukraine, other laws (but not by-laws, which are the rulings of the Cabinet of Ministers of Ukraine). And also in compliance with the principles of expediency, proportionality to goals. It is necessary to determine the participants in the emerging legal relationship, both those who "control" and those participants who are "controlled, limited".

Modern Civilistic Instruments of Medical Reform: Issues of Law Implementation and Law Enforcement

2020 ◽  
Vol 27 (3) ◽  
pp. 109-127
Author(s):  
Iryna Senyuta
Keyword(s):  
Primary Care ◽  
Law Enforcement ◽  
Medical Care ◽  
Primary Care Physician ◽  
Legal Regulation ◽  
Care Physician ◽  
Third Parties ◽  
Medical Reform ◽  
Judicial Practice ◽  
The Right

The study of the latest civilistic instruments of medical reform is conditioned by its purpose, which is to clarify the legal nature of the declaration of choice of primary care physician and the contract for medical care under the programme of medical guarantees, highlighting the specific features of the right to choose a doctor, conditioned by the outlined tolls, as well as identifying gaps and controversies in the legislation of Ukraine and judicial practice in law enforcement in this area. The main method of the study was the method of studying judicial practice, which allowed to assess the effectiveness of law enforcement, the level of perception of legislation in this area in practice, as well as to determine the necessity of improving the legal regulation. The study highlights the problematic aspects related to the exercise of the right to free choice of a doctor, in particular due to legislative changes regarding medical reform. The legal essence of the declaration on the choice of a primary care physician has been covered. The study clarifies that it is not a transaction, but a document certifying the exercise of the right to freely choose a primary care physician. The contract on medical care of the population under the programme of medical guarantees is analysed and its civil law matter is established. It is determined that it is a contract for the provision of services under the public procurement, concluded for the benefit of third parties. The reimbursement agreement was also investigated, which is also an agreement in favour of third parties – patients in terms of full or partial payment for their medicines. The judicial practice is analysed, which gives grounds to assert the problems with enforcement and administration of law, and proposals are made to improve the current legislation, including in the aspect of the subject of the contract under the programme of medical guarantees. The "legitimate expectation" that arises in a person in the presence of regulatory guarantees is under conventional protection, as illustrated by the European Court of Human Rights in its decisions, and to change the paradigm of implementation requires a transformation of legislation. The practical significance of this study is to intensify scientific intelligence in this direction, to improve the legal regulation of these innovative legal constructions, to optimise the enforcement and administration of law in the outlined civilistic plane

THE RIGHT TO JUDICIAL PROTECTION AS A CONSTITUTIONAL PRINCIPLE OF JUSTICE (ON THE EXAMPLE OF CIVIL PROCEDURE)

2021 ◽  
Vol 11 (1) ◽  
pp. 89-106
Author(s):  
A.A. FOMIN
Keyword(s):  
Regulatory System ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Legal Doctrine ◽  
Legal Principles ◽  
Constitutional Principle ◽  
Judicial Practice ◽  
Legal Security ◽  
The Right ◽  
Judicial Protection

Procedural and legal principles, among which the right to judicial protection is of fundamental importance, reflect the specific patterns of judicial protective legal relations, innovative ideas of procedural legal doctrine and the results of the development of judicial practice. The procedural principles of law serve as criteria for assessing the effectiveness of the country’s judicial and legal policy and further modernization of the judicial and judicial legislation. An algorithm for the formation of the principles of law, including the principles of civil (arbitration) legal proceedings, within the framework of the dialectical-materialistic paradigm of scientific knowledge is considered. It is noted that positive authorization in the regulatory system of the state at the constitutional or sectoral level is a necessary prerequisite for the transformation of objective laws of public life into the principles of law and their subsequent inclusion in the mechanism of legal regulation. At the same time, it is substantiated that when building the concept of procedural principles of law, one should rely on democratic tendencies in domestic and international processes, form a constitutional attitude and new approaches to the study of the system of principles of law on the basis of a combination of decades of experience of dialectical and materialistic perception of principles of law with natural law ideas. Particular attention is paid to the consideration of constitutional and sectoral powers that form the content of the right to judicial protection, as a procedural principle of law, and acting as guarantees of ensuring legal certainty and legal security of civil procedure. A number of practical proposals are made to improve the civil (arbitration) procedural legislation aimed at increasing the efficiency of the institution of judicial protection in modern Russia.

scholarly journals Vindication of a Share in the Right of Common Share Ownership and Some Features of the Reclamation of Common Property

2018 ◽  
Vol 5 (3) ◽  
pp. 146-150
Author(s):  
A V Zarubin
Keyword(s):  
Common Property ◽  
The Other ◽  
Share Ownership ◽  
Legal Relationship ◽  
Common Ownership ◽  
The Common ◽  
The Right ◽  
Established Order ◽  
Relative Concept ◽  
A Share

The article analyzes the problem of vindication of share in the common ownership, due to the fact that the object of vindication is the property, at that time, as a share - relative concept. This feature has forced practitioners to adapt replevin to the recovery of shares. The result was a claim of recovery rights to the share. The lawsuit, which restored the right to share, of course, necessary participants of civil legal relationship, but its effective application requires differentiation of the vindicatory claim, a claim of recognition of rights and other means of protection.When compared to the above method of protection, the author comes to the conclusion that the right distinction is based on the factor of possessions. If the owner of the share at the same time with her lost possessions, shall be declared replevin. If the owner has only lost the title, you can apply the claim of recognition of ownership. Fixed rule about the applicability of the claim for restoration of the right to a share is intended to demonstrate the possibility of protecting the rights of the owner of the share.In addition, the paper analyzes the possibility of vindication of the shares, if the assignment was accompanied by the seizure of possession by the other co-owner. The author points out that there are forbidden by law to reclaim the property from the owner, because each of the disputants is only the owner of the share. The owner of a thing is the team co-owners. The basis of the protected ownership is the established order of use or the agreement of the owner with a team of co-owners.At the same time the article reveals some peculiarities of claiming common property.

Features of Application of Article 392 of the Civil Code of Ukraine Upon Recognising the Right of Ownership of Newly Created Real Estate (A Case Study of Judicial Practice)

2020 ◽  
Vol 27 (2) ◽  
pp. 77-90
Author(s):  
Andrii Hryniak ◽  
Nadiia Milovska
Keyword(s):  
Real Estate ◽  
Property Rights ◽  
Legal Regulation ◽  
Civil Code ◽  
Practical Significance ◽  
Real Property ◽  
Real Right ◽  
Judicial Practice ◽  
Specific Object ◽  
The Right

The study of the specific features of recognition of ownership of newly created real estate is conditioned by its purpose, which is to determine the grounds for application of remedy upon recognising ownership of newly created construction object, stipulated by Article 392 of the Civil Code of Ukraine. The purpose of the study also includes identification of gaps and discrepancies in the legislation of Ukraine and judicial practice, which arise during application of the appropriate remedy for a substantive right, and the development of proposals for their elimination. In this regard, the main method of this study was comparative law, which allowed to identify and analyse different approaches to the legislative consolidation and application of such a remedy as the recognition of property rights. Upon concluding an agreement on sale and purchase of property rights to immovable property, the buyer receives a limited real right, under which it is endowed with certain, but not all rights of the property owner. Nevertheless, in recognising the ownership of newly created real estate, the study proves the feasibility of applying the method of protection stipulated in Article 392 of the Civil Code of Ukraine. It is substantiated that the buyer, who has performed its monetary obligations under the agreement on sale and purchase of real property rights, having fully paid the contractual value, is considered to have committed actions aimed at the occurrence of legal facts necessary and sufficient to obtain the legal claim for the transfer of ownership of the construction object. In this regard, it has been proved that the effectiveness of the remedy stipulated by Article 392 of the Civil Code of Ukraine, which is applied upon recognising the ownership of newly created immovable property, is aimed at levelling the possibility of further unlawful actions of third parties in relation to such property, and is achieved through the enforcement of judgement by recognition of ownership of a specific object, and in case of its destruction – by obtaining appropriate compensation. The practical significance of the study of the application of Article 392 of the Civil Code of Ukraine upon recognising the ownership of newly created real estate is that its results are designed to promote further research, to improve the legal regulation of relations, the object of which is newly created real estate, to optimise the implementation of property rights and law enforcement in this area

scholarly journals Similarities and Differences of Approaches to the Legal Regulation of Subsidiary Liability of Persons Controlling the Debtor in Russian and Foreign Law

2021 ◽  
Vol 16 (12) ◽  
pp. 35-44
Author(s):  
A. D. Parkhomenko
Keyword(s):  
Law Enforcement ◽  
Legal Regulation ◽  
Third Party ◽  
Theoretical Understanding ◽  
Legal Entity ◽  
Legal Principles ◽  
Judicial Practice ◽  
Foreign Countries ◽  
Foreign Law ◽  
The Right

The paper constitutes a comparative legal study of some aspects of subsidiary liability of persons controlling the debtor and its foreign counterparts. Taking into account the experience of foreign countries in the regulation of these relations, the author draws parallels between different approaches to this legal phenomenon using foreign literature and judicial practice. The key aspect of the problem of liability of persons controlling the debtor is the existence of two opposite legal principles: organizational and property isolation of a legal entity and inadmissibility of abuse of the right. Bringing the persons controlling the debtor to subsidiary liability makes it possible to erase the boundaries of isolation of a legal entity and to identify its property with the property of its controlling persons for the purpose of satisfying the creditors’ claims. Thus, creditors of a legal entity have the opportunity to restore the violated right at the expense of the property of a de facto third party that is not a party to the original obligations. In foreign legal orders, the study of this ratio takes place over a long period. During this time, a certain theoretical understanding was formed, as well as law enforcement practice in this area.

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