scholarly journals Legal nature, role, meaning and grounds of Constitutional Court interpretation and doctrinal interpretation: their interconnection

2020 ◽  
pp. 33-38
Author(s):  
Valerya Antoshkina
Keyword(s):  
National Level ◽  
Legal Consciousness ◽  
Constitutional Court ◽  
Historical Aspect ◽  
Legal Norms ◽  
Legal Provisions ◽  
Legal Nature ◽  
The Subject ◽  
Definition Of ◽  
The Right

That article studies the questions on the legal nature, significance and grounds of the Constitutional Court of Ukraine (hereinafter - CCU) and of doctrinal interpretation as well as their interconnection. The author analyzes the types of interpretation by the subject and notes that among the subjects of the official interpretation the Constitutional Court plays an important role, while for the informal interpretation the doctrinal interpretation is crucial. The paper defines the legal basis for exercising of the right of interpretation by the Constitutional Court of Ukraine, as a specific body, which is the latter at national level aimed at exercising exclusive special powers in protecting the rights and fundamental freedoms of human and citizen. It is stated that the CCU is a quasi-legislative body whose acts are binding and have the features of a source of law, the paradigm of its activity is determined, first of all, by the rule of law and then by the supremacy of the Constitution of Ukraine. The article also pays attention to the ratio between the legal positions and decisions of the CCU. The article analyzes the changes of the legislation on the activity of the CCU in the context of reducing the power to interpret laws, limiting it only to the right to interpret the Constitution of Ukraine. The author also emphasizes that as the subject of court interpretation may act a scientist who interprets a certain norm of law and works as a judge of the CCU. In this case, the interpretation is based on the results of a scientific research for a judge. Therefore, it is reasonable to say that judges of the Constitutional Court of Ukraine can to some extent be considered as “subjects of doctrinal interpretation”, especially taking into account the fact that these days there are many legal scientists, scientists with academic degrees and titles working at the posts of judges and performing scientific and judicial activity at the same time. The author also studies certain aspects of the doctrinal interpretation and the definition of its role and significance in the historical aspect on the example of different states. Questions on the ratio between doctrinal and court interpretation are also paid attention by the author. It is noted that, in general, in Ukraine scientific doctrine is not recognized as an official source of law, but at the same time plays an important role in the formation of legal consciousness, worldview and lawmaking. Therefore, it can be noted basing on the results of the analysis of legal norms and court practice, that many doctrinal legal positions over time are reflected both in the rulemaking process and in court decisions, turning into court legal provisions.

scholarly journals To the Definition of Preferential Right in Civil Law

2021 ◽  
Vol 17 (2) ◽  
pp. 45-53
Author(s):  
A. V. Pikalov
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
Legal Obligation ◽  
Specific Group ◽  
Legal Nature ◽  
The Subject ◽  
Single Idea ◽  
Definition Of ◽  
The Right ◽  
The Relationship

The essential features of the preferential right are revealed and the main approaches to understanding its legal nature are considered. According to the first approach, preferential rights are defined as cases when, under all equal conditions, the advantage is granted by law to a specific group of persons with some special characteristics. The second approach does not have a single idea: the authors focus on a certain aspect of preferential rights and propose to understand other preferential rights in the same way. The place of “preferential rights” among other exceptions in the law is determined, the relationship and difference from related legal categories are shown. Based on the results of carried out research, the author's definition of a preferential right is developed as an additional possibility based on the property (corporate) interest of its owner, established by law or contract, to demand from the subject-accomplice in the right or the party in respect of proper behavior in the form of providing advantages over third parties. This right is proposed to be considered an independent subjective right due to the obvious independence of its existence in objective law as a measure of possible behavior defined by law (by contract, constituent document), the presence of a construction corresponding to it of a legal obligation, its own mechanism for the implementation of this right, and for a number of other reasons set out in the work.

Problematic issues of application of terms of appeal to court in the consideration of labor disputes on remuneration

2021 ◽  
pp. 105-109
Author(s):  
V. Mamai
Keyword(s):  
Practical Problem ◽  
Case Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
Labor Disputes ◽  
Legal Provisions ◽  
Legal Nature ◽  
The Supreme Court ◽  
Functional Orientation ◽  
The Right

The articles explore the practical problems of the application of procedural deadlines in the consideration of labor disputes relating to remuneration, their application. The article proclaims the practical problem of choosing the terms proposed in Article 233 of the Labor Code of Ukraine. Thus, it is determined that when applying the terms proposed in Part 2 of Article 233 of the Labor Code of Ukraine, does not necessarily expand the understanding of the category of “wages” and “wages”. Pay attention to the solution of this issue in the articles on all developed cooperation, the concept of “wages” and “wages”, which is used in Part 2 of Article 233 of the Labor Code of Ukraine, the relevant decision of the Constitutional Court of Ukraine is analyzed. By solving the problems of the legal nature of the payments involved to employees for recovery, which can be applied to Part 2 of Article 233 of the Labor Code of Ukraine, the author conducted a study and analysis of recent case law and examples of court decisions, namely the rulings of the Supreme Court and decisions of the Constitutional Court of Ukraine, in this court with the formation of clear legal provisions governing the legal nature of payments. this can be used Part 2 of Article 233 of the Labor Code of Ukraine. Also the question of structure of a salary, its basic elements, the analysis of provisions of the basic regulatory legal acts, both laws, and by-laws regulating the certain questions is investigated. The article concludes that the concepts of “wages” and “wages”, which are used in Part 2 of Article 233 of the Labor Code of Ukraine are identified. To this notion of “wages” it is proposed to create an extensive structure of payments. The criterion for canceling the payment to the structure of wages is the founder of the connection of such payment with the performance of duties of employees and its functional orientation (from the creation and incentives). In view of this, the author supports the view that Part 2 of Article 233 of the Labor Code of Ukraine can not join the dispute over the recovery of these amounts, the right to quality applies to employees as a result of breach of their obligations by employers (Articles 117, 235, 236, 237-1 of the Labor Code of Ukraine)

scholarly journals TYPES OF DISPOSITION OF CRIMINAL JUDICIARY OF UKRAINE

2020 ◽  
Vol 1 (4(106)) ◽  
pp. 215-221
Author(s):  
М. М. Почтовий
Keyword(s):  
Scientific Article ◽  
Criminal Proceedings ◽  
General Group ◽  
Procedural Law ◽  
Legal Provisions ◽  
The Subject ◽  
Definition Of ◽  
The Right ◽  
Different Order

The scientific article considers the issue of modern understanding of the essence of the principle of dispositiveness in the criminal proceedings of Ukraine, as well as its classification in scientific sources. At the beginning, the author emphasizes the importance of the existence of the principle of dispositiveness in criminal proceedings and its impact on the implementation of the rights and freedoms of participants in criminal proceedings. On the basis of the defined criteria the classification of dispositiveness in criminal proceedings is carried out: 1) on the maintenance - social, material and formal (procedural); 2) according to the methods of connection of elements in the structure of dispositiveness - horizontal (equal-order) and vertical (different-order); 3) by enshrining dispositive norms in the substantive or procedural law - substantive and procedural; 4) on the generality of powers used by the subjects of dispositive rights - general, group and exclusive powers (the right to the last word of the defendant); 5) on the subordination of rights and freedoms (legal provisions) of the subjects of dispositiveness - the main provisions, provisions that ensure the implementation of the basic; 6) depending on the scope of powers granted to participants in criminal proceedings, for a certain period of time - static and dynamic; 7) depending on how many participants in the criminal proceedings are endowed with dispositiveness in a particular criminal proceeding - unilateral and bilateral; 8) depending on the mechanism of realization of dispositive rights - constitutive and situational; 9) for the subject of dispositive rights - suspect, defense counsel, accused, legal representatives, victim, civil plaintiff, civil defendant, witnesses, etc. The author of the study formulates the definition of dispositiveness in the criminal proceedings of Ukraine - it is a conscious need for active and purposeful activities of entities endowed with dispositive rights, the implementation of which affects the emergence, change or termination of criminal procedural relations and aims to defend their own or representative interests.

scholarly journals DISCUSSION ISSUES OF LEGAL DISCRETION

2020 ◽  
Vol 30 (1) ◽  
pp. 165-169
Author(s):  
N.V. Kuznetsova ◽  
L.P. Lapshina
Keyword(s):  
Legal Norms ◽  
Judicial Practice ◽  
Legal Relationship ◽  
Legal Nature ◽  
Legal Position ◽  
Contractual Relations ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

The article presents an analysis of some issues of legal discretion. There is no unified approach either to the definition of discretion or to the legal nature of this phenomenon. There are difficulties in the evaluation of the legal discretion in acting legislature. In private law trial discretion comprises codified regulation. This phenomenon is particularly typical in contract law: the court’s assessment of the behavior of participants in contractual relations as lawful or unlawful, abuse of rights, determination of the nature of the legal norms governing contractual relations. The discretionary powers of the court in many respects make it possible to ensure uniformity in the consideration of cases of a certain category, to form judicial practice on the application of the relevant legislation. The main areas of judicial activity in this case are: making the right choice of the rule of law to be applied to qualify the relevant legal relationship, applying the analogy of law and as well as the legal position developed when resolving a certain category of cases.

scholarly journals The Concept And Legal Nature Of Amendments To The Contract

2021 ◽  
pp. 64-77
Author(s):  
N.S. Shymanska
Keyword(s):  
Rapid Development ◽  
Case Law ◽  
Negative Consequences ◽  
Legal Norms ◽  
Term Change ◽  
Legal Nature ◽  
Uniform Case ◽  
Definition Of ◽  
The Right ◽  
Market Relations

The article examines the concept and legal nature of amendments to the contract. It is established that this legal phenomenon due to the rapid development of market relations is becoming widespread. The meaning of the concept of «change» and its legal nature are analyzed. An exhaustive list of possible options for exercising the right to amend the contract has been made. According to the results of scientific research of different points of view of civilians of different epochs on the concept of «change of contract terms», the own definition of the mentioned concept is formulated and it is proposed to make appropriate changes to the current Civil Code of Ukraine. After all, the perfect legislative regulation of certain relations begins with the consolidation of their definition, in order to have a common understanding of the concept. In our opinion, the lack of a legislative definition of the term “change of contract terms” is a negative phenomenon, as it leads to unequal understanding of the concept by parties, substitution of concepts, violation of the rights of parties, different case law, which is based on the results of consideration of the category of cases related to amendments to the contract. Therefore, we believe that the CC of Ukraine should be amended by including Article 650 1 «The concept of changing the terms of the contract», by which we mean the process, active behavior of the party (parties), which aims to create new or edit existing terms of the contract to bring it in accordance with certain life circumstances, legal norms, as well as its optimization, the purpose of which is to obtain by the party (parties) a certain positive result of property and / or non-property nature. The implementation of these changes will make it possible to avoid the above-mentioned negative consequences in the future and will ensure the introduction of uniform case law in resolving disputes related to amendments to the contract.

scholarly journals Restrictions and boundaries in the Russian information law

2020 ◽  
pp. 11-30
Author(s):  
Gulfiia Gafiiatovna Kamalova
Keyword(s):  
Public Relations ◽  
Legal Regulation ◽  
Legal Norms ◽  
Original Definition ◽  
Legal Nature ◽  
Information Law ◽  
The Subject ◽  
Definition Of ◽  
Theoretical Foundations

The subject of this research is the system of legal norms of the Russian Federation that regulates public relations within the process of restriction of the constitutionally recognized information rights and liberties of a human and citizen, as well as establishment of the boundaries of their realization in the current conditions of development of the information society and digitalization. The goal of this work is to develop theoretical foundations for information law through demarcation of boundaries and restrictions of the information rights and liberties, which would also contribute to improvement of information legislation and the practice of its application. The scientific novelty of research is reflected in the acquisition of scientific knowledge required for development of legal regulation of the information sphere in the conditions of digitalization, among which are the original definition of the concepts “boundaries of exercising rights in the information sphere” and “restrictions of information rights and liberties”, obtained based on the conducted analysis of the forming public relations within information sphere and their legal regulation. The following conclusions were made: 1) there is absence of research on the issues of boundaries of rights, including boundaries in information law; 2) there is a need for determination of boundaries of exercising right in the information sphere and restriction of information rights and liberties in implementation of legal regulation, as well as consideration of the legal nature of technical norms in their inclusion into a normative legal act.

scholarly journals Impact of networkization of the economy upon changes in the provisions of competition law (on the example of blockchain and smart contracts in the area of advertising and intellectual property law)

2020 ◽  
pp. 14-32
Author(s):  
irina viktorovna ermakova
Keyword(s):  
Intellectual Property ◽  
Social Relations ◽  
Online Advertising ◽  
Smart Contracts ◽  
Legal Norms ◽  
Blockchain Technology ◽  
The Social ◽  
Legal Nature ◽  
The Subject ◽  
Definition Of

The subject of this research is the legal norms that regulate legal relations in the context of application of blockchain technology and smart contracts based on it in the area of online advertising and intellectual property. The object of this research is the social relations emerging in the indicated spheres. Analysis is conducted on the concepts and characteristics of blockchain technology and smart contracts. The author also reviews some controversial theoretical and practical issues, such as terminology, legal nature of blockchain, smart contracts, and related concepts. Examples are provided of the currently existing blockchain platforms and services premised on them. The novelty of the conducted research consists in focusing on the relevant problems that emerge in the conditions of network economy in such spheres as online advertising and intellectual property. On the example of blockchain platforms functioning in the indicated spheres, the author reveals the problems the can be resolved using such technologies. The author also underlines certain practical difficulties that arise in the process of application of blockchain and smart contracts, particularly associated with the absence of legal definition of a number of concepts. The examples of corresponding court decisions are provided. A proposal is made on the need for consolidation on the legislative level of definitions of such concepts as “blockchain”, “smart contract”, “cryptocurrency”, and “token”.

scholarly journals LEGAL NATURE OF THE SECURITY ORDER OF THE CONSTITUTIONAL COURT OF UKRAINE

2021 ◽  
Vol 1 (10) ◽  
pp. 19-24
Author(s):  
T. Milova ◽  
Keyword(s):  
Point Of View ◽  
The Body ◽  
Court Decision ◽  
Constitutional Court ◽  
Practical Application ◽  
Legal Nature ◽  
The Subject ◽  
Grand Chamber ◽  
The Right ◽  
Key Aspects

The article is devoted to the characteristics of the security order as one of the acts of the Constitutional Court of Ukraine and the practice of its application. It has been noted that the introduction of this executive document into the practice of the body of constitutional jurisdiction is due to the beginning of the functioning of the institute of constitutional complaint in Ukraine. Also it has been noted that the basis for securing a constitutional complaint is the need to prevent the irreversible consequences that may occur in connection with the execution of the final court decision. The way to ensure a constitutional complaint is to establish a temporary ban on certain actions. The article analyzes the first security order of the Constitutional Court of Ukraine and highlights the debatable issues that arose after its publication. Particular attention has been paid to the study of the most significant problems related to the legislative consolidation and functioning of the institution of the security order. The issues concerning the authorities of the Constitutional Court of Ukraine authorized to issue a security order have been analyzed. It has been stated that, along with the Grand Chamber, it is expedient to grant this right to the Senate, as they are the main subject of consideration of constitutional complaints. The boards are invited to give the right to take an immediate initiative to the senates to resolve the issue of issuing a precautionary order in case of sufficient grounds. The problematic aspects of the current legislation on the formulation of the grounds for securing a constitutional complaint have been identified. Such a feature as the "irreversibility" of the consequences as the basis for issuing a security order is considered. In analyzing the consequences of the execution of a court decision from the point of view of its reversibility, attention is paid to the intermediate nature of such consequences, is partially reversible. It has been recommended to grant the subject of the right to a constitutional complaint the right to apply to the Constitutional Court of Ukraine with a corresponding petition to secure a constitutional complaint. During the disclosure of this issue, the relevant bills aimed at improving the legal nature of the security order in the practice of the Constitutional Court of Ukraine have been analyzed. It has been noted that the institution of the security order of the Constitutional Court of Ukraine needs further research, substantiation of key aspects of the relevant legislation and appropriate practical application.

scholarly journals Obtaining Samples for a Comparative Study: Theoretical, Normative and Law Enforcement Problems

2021 ◽  
pp. 17-29
Author(s):  
Elena Zaitseva
Keyword(s):  
Law Enforcement ◽  
Comparative Study ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Procedure Code ◽  
Legal Nature ◽  
The Russian Federation ◽  
Definition Of ◽  
The Right

The article analyzes the debatable aspects of the normative regulation of obtaining samples for a comparative study according to the current Criminal Procedure Code of the Russian Federation. Attention is paid to the key problems in the regulation of this action, and to the difficulties that law enforcement employees face due to them. The author examines the questions of defining the legal nature of obtaining samples for a comparative study, and the possibility of using the operative search potential instead of the procedural method to obtain comparative samples. While analyzing the problems of setting the limits of compulsion for this action, the author stresses the incorrectness of some wording in the law (Art. 202 of the Criminal Procedure Code of the Russian Federation). In the light of ensuring the right of criminally prosecuted persons to defense, the author also presents a critical assessment of the legal positions of the Constitutional Court of the Russian Federation reflected in the Definition of July 23, 2020 № 1856-0, in the part where obtaining samples for a comparative study is recognized as an action of urgent nature.

scholarly journals Problems of legal regulation of delay interest as a type of civil liability for breach of monetary obligations in Ukraine

2020 ◽  
pp. 296-300
Author(s):  
Yaryna Fomenko
Keyword(s):  
Law Enforcement ◽  
Theoretical Study ◽  
National Level ◽  
Civil Liability ◽  
Legal Regulation ◽  
Civil Code ◽  
Legal Provisions ◽  
Legal Nature ◽  
Definition Of ◽  
Legal Concepts

This article is devoted to the theoretical study of the legal regulation of delay interest as a type of civil liability for breach of mo -ne tary obligations under Ukrainian law. It is the contractual sanctions, that are one of the most important parts of the contract as theyinduce the parties to comply with their obligations. In addition, sanctions are of a dual legal nature – they are both means of ensuringthe performance of the obligations and a measure of liability for a dishonest contractor. Liability for breach of monetary obligations ischaracterized by conflicting legal provisions and ambiguous court practice. For example, under the Civil Code of Ukraine delay interestand a penalty are regarded as types of forfeit, while in the Economic Code of Ukraine forfeit is treated as a separate type of sanction.However, in the absence of separate definitions of each sanction in the Economic Code of Ukraine, it is unclear as to the meaningintended by the legislator in particular in the concept of “forfeit”. This situation complicates the understanding of legal concepts andrequires a regulatory specification of such provisions in legislative acts. Based on the theoretical analysis, it is necessary to develop scientificallygrounded proposals and recommendations for improvement of law making and law enforcement activities. The legal characteristicsand peculiarities of the delay interest as a type of civil liability are investigated in the article.As a result of a comparative analysis of the regulations in the Civil Code of Ukraine and the Economic Code of Ukraine, the followingdifferences and contradictions were summarized and noted: a) different approach to the definition of “delay interest”; b) unequalapproach to the question of types of obligations to which delay interest can be applied; c) differences in the calculating of delay interestfor breach of a monetary obligation procedures.In order to effectively resolve disputes, the author notes the need to implement unification of the Civil Code of Ukraine with theEconomic Code of Ukraine at the national level and to establish clear rules for the application of delay interest for non-compliance withmonetary obligations.

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