scholarly journals REALIZATION OF THE RIGHT TO HEALTHCARE OF CONVICTED WITH SERIOUS ILLNESS

2020 ◽  
Vol 73 (12) ◽  
pp. 2780-2784
Author(s):  
Oleksandra H. Yanovska ◽  
Oksana P. Kuchynska ◽  
Alona V. Chuhaievska
Keyword(s):  
Great Britain ◽  
Personal Experience ◽  
Case Law ◽  
State Of Health ◽  
Serious Illness ◽  
Judicial Practice ◽  
The Supreme Court ◽  
Judicial Administration ◽  
The Right ◽  
To Receive

The aim of the study is to analyze the features of realization mechanism of the rights of convicted persons suffering from a serious illness to release from serving a sentence in order to receive the necessary treatment. Materials and methods: this study uses a set of methods of scientific knowledge. The empirical basis of the study is the statistics of the State Judicial Administration of Ukraine for 2015-2019 on convicts released from punishment due to their serious illness, statistical materials and case law of Turkey, Georgia, Great Britain, Germany and Greece, generalization of judicial practice of Ukraine, and the personal experience of one of the co-authors of more than 20 years as a lawyer and for 3 years as a judge of the Supreme Court. Conclusions: in order to protect the persons; interests serving sentences and suffering from serious illness, government mechanisms should provide flexibility in the approach to assessing the health of each person, and not just the detection of disease; the authorities assessing the convict's state of health must be independent, and a prisoner must be able to choose physicians not only for treatment but also for assessment of his/her state of health.

PENALTIES PROVIDED FOR SERIOUS CRIMES IN THE CRIMINAL CODE OF UKRAINE

2018 ◽  
Author(s):  
Oleksandra Skok ◽  
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Criminal Code ◽  
Legal Analysis ◽  
Judicial Practice ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Special Part ◽  
The Right ◽  
National Police

The statistics of the Prosecutor General's Office on registered criminal offenses in the form of serious crimes for 2020 and 2021 were reviewed. Based on this, the number of serious crimes registered by the National Police of Ukraine during the reporting periods was determined. The provisions of the current Criminal Code of Ukraine, the Criminal-Executive Code of Ukraine, the Resolution of the Plenum of the Supreme Court No 7 of October 24, 2003 are analyzed, as well as some scientific positions of domestic scientists Knyzhenko O. O are taken into account. and Berezhnyuk V. M In addition, a review of the case law of the Supreme Court of Cassation on sentencing was studied. A thorough criminal-legal analysis of the sanctions of the articles of the Special Part of the Criminal Code of Ukraine in the part of punishments established for the category of serious crimes was carried out. Based on the analysis, it was determined which main and additional punishments are regulated in the sanctions of the articles of the Special Part of the Criminal Code of Ukraine for the investigated category of crimes. The quantitative and qualitative indicator of sanctions for serious crimes has been determined, which include: imprisonment for a definite term; punishments alternative to imprisonment; additional penalties. Legislative and doctrinal provisions on punishments in the form of imprisonment for a definite term, restriction of liberty, fine, correctional labor, arrest are considered. The judicial practice of Ukraine in the part of certain issues related to the execution of a penalty in the form of a fine and the replacement of a penalty in the form of a fine with a penalty in the form of correctional labor is analyzed. It is established that the Criminal Code of Ukraine, in the sanctions of the articles, provides for the application to a person who has committed a serious crime, punishment in the form of imprisonment, restriction of liberty, fine, correctional labor, arrest - as the main punishment. The range of additional punishments is defined, which determine: confiscation of property, deprivation of the right to hold certain positions or engage in certain activities and a fine.

ABOUT THE PROBLEM OF CONFLICTABILITY OF INHERITANCE REFUSAL DEALS DURING INSOLVENCY PROCEDURE IN RUSSIA AND GERMANY

2021 ◽  
pp. 193-203
Author(s):  
Tatyana P. Shishmareva ◽  
Keyword(s):  
Legal System ◽  
Roman Law ◽  
Property Damage ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Supreme Court ◽  
Before And After ◽  
Definition Of ◽  
The Right ◽  
To Receive

The possibility of inheritance refusal deals of an insolvent debtor was a subject of discus-sion even in Roman law, in which there were ideas about the impossibility of challenging such a transaction using Actio Pauliana. The problem of the contestability of inheritance refusal deals is investigated using the method of comparative studies with the aim of a deeper scientific and theoretical knowledge of the legal nature of rejection of inheritance in the legal system of Germany, which had a significant impact on Russian law. Main approaches of German legislators to the regulation of refusal of inheritance by the debtor, over whose property an insolvency procedure has been introduced, are indicated, ac-cording to which § 83 Insolvenzordnung specifies that such a transaction was made exclusively by the debtor himself. The author analyzes the German jurisprudence on the disputability of inheritance refusal deals by the insolvent debtor, reveals the legal positions of the Supreme Court of Germany that there are no grounds for challenging such a transaction as aimed at the withdrawal of the assets of the insolvent debtor. Arguments are also presented in favor of the impossibility of challenging the inheritance refusal deals in the doctrine of Germany. The analysis of the Russian inheritance legislation on the rejection of inheritance is carried out. The author defines the nature of the right to acquire an inheritance as a personal right of the heir when deciding to renounce the inheritance both before and after the introduction of the insolvency procedure. In accordance with this definition of the essence of the right to acquire an inheritance, it was concluded that there is no need to receive an approval on the decision of the debtor to accept or refuse the inheritance with the arbitration manager if the debtor enters into inheritance refusal deals during the course of insolvency procedures. The article analyzes the judicial practice that is developing in the Russian legal system re-garding challenging inheritance refusal deals. In jurisprudence, a tendency has been revealed to challenge inheritance refusal deals as suspicious transactions causing property damage to the creditors of the insolvent debtor. It is pointed out that in the modern Russian doctrine, the features of inheritance refusal deals have not been studied. An aspect of current legal system is the concept of “rejection of the inheritance”, which is qualified as the inaction of the debtor, through which he expresses his will to refuse the inheritance. The heir's inaction cannot be challenged on general civil grounds due to his lack of signs of a transaction in the sense in which it is used in the Civil Code of the Russian Federation.The author proves that the rejection of the inheritance does not cause property damage to the creditors, since in this case there is no reduction in the property of the insolvent debtor, and the withdrawal of the debtor's assets is not carried out. The conclusion is made about the possibility of challenging the transaction of rejection of the inheritance on general civil grounds if defects are found in the transaction and there are no conditions for the application of Actio Pauliana.

scholarly journals On Issue of Civil and Legal Liability of the Insolvency Officer for Actions (Inaction) of Third Parties in a Bankruptcy Case

2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Igor Staritsyn
Keyword(s):  
Russian Federation ◽  
Legal Liability ◽  
Third Parties ◽  
Bankruptcy Law ◽  
District Courts ◽  
Judicial Practice ◽  
Illegal Behavior ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

Considering the right of the insolvency officer to involve other persons, including employees of the debtor, to ensure his powers, the article examines the possibility of bringing the officer to civil and legal liability in the form of recovering damages for actions (inaction) of such persons. It summarizes and analyzes the judicial practice at the level of the Arbitration District Courts and the Judicial Panel on Economic Disputes of the Supreme Court of the Russian Federation. A conclusion is made of admissibility in certain cases of bringing the insolvency officer to civil and legal liability for the actions of the persons involved by him. The illegal behavior and the fault of the insolvency officer can be expressed in improper control over the actions (inactions) of third parties, in selecting an incompetent person. The article offers to regulate at the legislative level the issue of the possibility of bringing the insolvency officer to liability for actions of other persons, by including such rules in the Bankruptcy Law.

scholarly journals Reasonable time frame in bankruptcy proceedings: Analysis of cases from the judicial practice of the Commercial Court in Niš

2021 ◽  
Vol 60 (90) ◽  
pp. 97-118
Author(s):  
Aleksandar Mojašević ◽  
Aleksandar Jovanović
Keyword(s):  
Case Law ◽  
Time Frame ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Reasonable Time ◽  
Judicial Practice ◽  
Reasonable Time Frame ◽  
The Subject ◽  
The Republic ◽  
The Right

The Act on the Protection of the Right to a Trial within a Reasonable Time, which took effect in 2016, has created the conditions in our legal system for the protection of the right to a trial within a reasonable time, as one of the fundamental rights guaranteed by the Constitution of the Republic of Serbia and related international documents. Although the legislator does not explicitly provide for the application of this Act in the context of bankruptcy proceedings, it has been used in judicial practice as a mean for the bankruptcy creditors to obtain just satisfaction in cases involving lengthy bankruptcy proceedings and a violation of the right to a fair trial within a reasonable time. The subject matter of analysis in this paper is the right to a trial within a reasonable time in bankruptcy cases. For that purpose, the authors examine the case law of the Commercial Court in Niš in the period from the beginning of 2016 to the end of 2019, particularly focusing on the bankruptcy cases in which complaints (objections) were filed for the protection of the right to a fair trial within a reasonable time. The aim of the research is to examine whether the objection, as an initial act, is a suitable instrument for increasing the efficiency of the bankruptcy proceeding, or whether it only serves to satisfy the interests of creditors. The authors have also examined whether this remedy affects the overall costs and duration of the bankruptcy proceeding. The main finding is that there is an increasing number of objections in the Commercial Court in Niš, which still does not affect the length and costs of bankruptcy. This trend is not only the result of inactivity of the court and the complexity of certain cases but also of numerous external factors, the most prominent of which is the work of some state bodies.

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

Slovo of the National School of Judges of Ukraine

2021 ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Judicial Reform ◽  
Council Of Europe ◽  
Judicial Practice ◽  
National School ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Impact

The special edition of the national professional scientific and practical legal magazine “The Slovo of the National School of Judges of Ukraine” was published, which contains reports delivered at the online conference "Ensuring the unity of judicial practise: the legal positions of the Grand Chamber of the Supreme Court and standards of the Council of Europe", held on the occasion of the third anniversary of the Grand Chamber of the Supreme Court. time of thematic sessions and webinars for judges of each of the courts of cassation in the Supreme Court, as well as joint sessions for judges of different jurisdictions at the end of 2020. The National School of Judges of Ukraine held these events together with the Supreme Court and in synergy with the Council of Europe projects "Support to Judicial Reform in Ukraine", "Further Support for Ukraine's Implementation in the Context of Article 6 of the European Convention on Human Rights", USAID New Justice Program, OSCE Project Coordinator in Ukraine. These are projects that support various aspects of judicial reform in Ukraine, compliance with Council of Europe standards and recommendations, offering best practices from member states to help make priorities in the national reform process. The conference and training events were attended by more than 550 participants - judges of the Supreme Court, other courts, leading Ukrainian and foreign experts, representatives of the legal community. Trainers and all structural subdivisions of the National School of Judges of Ukraine were involved, the training activities of which were identified by the CCEJ in one of its conclusions as one of the important tools to ensure the unity of judicial practice. Programs of activities included reports on the role of the Grand Chamber of the Supreme Court in ensuring the unity of judicial practice and the impact on the legal system; unity of judicial practice in the context of standards - improving access to justice in Ukraine: removing procedural obstacles and ensuring the right to an impartial court, approaches to identifying cases of minor complexity and cases of significant public interest or exceptional importance for a party in the context of access to court of cassation: practice the supreme courts of the member states of the Council of Europe and the European Court of Human Rights; key positions of the Supreme Court - application of the provisions of the procedural codes on the grounds for transferring the case to the Chamber, the joint chamber or the Supreme Court, the impact of its decisions on legislative activity, ensuring the specialization of courts and judges, the practice of the Supreme Court of the Supreme Court on administrative cases, the practice of considering cases of disciplinary liability of judges, conclusions on the rules of criminal law, review of court decisions in criminal proceedings in exceptional circumstances; the impact of the case law of the European Court of Human Rights on the case law of national courts and the justification of court decisions and the "balance of rights" in civil cases in its practice, the development of the doctrine of human rights protection; ECtHR standards on evidence and the burden of proof, the conclusions of the CCEJ and their reflection in judicial practice; judicial rule-making in the activities of European courts of cassation, etc. The issues raised are analyzed in the Ukrainian and international contexts from report to report, which, we hope, will be appreciated by every lawyer - both practitioners and theorists. As well as the fact that the depth of disclosure of each of the topics through the practice of application serves the development of law and contributes to the formation of the unity of judicial practice of the Supreme Court, the creation of case law is a contribution to rulemaking and lawmaking. The conversion of intellectual discourse into the practice of Ukrainian courts is an important step towards strengthening public confidence in the judiciary. And here the unifying force of the Supreme Court can be especially important, as the Chairman of the Supreme Court Valentyna Danishevska rightly remarked, speaking about the expectations of the society.

ON THE PROBLEMS OF EXERCISING THE AUTHORITY OF THE REPRESENTATIVE OF THE CLAIMANT TO RECEIVE THE AWARDED FUNDS: ALL DOUBTS ARE NOT IN FAVOR

2021 ◽  
Vol 10 (6) ◽  
pp. 294-316
Author(s):  
E.V. ZAICHENKO
Keyword(s):  
Bank Account ◽  
Judicial Practice ◽  
Special Power ◽  
The Law ◽  
The Right ◽  
To Receive

The author examines the problematic aspects of the implementation by the representative of the claimant under the enforcement document of a special power to receive funds both in the course of enforcement in the presence of enforcement proceedings initiated in the relevant division of bailiffs, and in the order of presenting the writ of execution directly to a Bank or other credit organization. It is stated that there is no uniformity of judicial practice on the issue of recognizing the right of a representative to demand the transfer of funds due to the recoverer to the account of the recoverer’s representative in the event of the exercise of this power during the initiated enforcement proceedings. The article substantiates the provision on the involuntary nature of the Bank’s actions carried out in accordance with Article 8 of the Law on Enforcement Proceedings, as well as on the unreasonableness of the ban on transferring funds to the personal Bank account of the representative in the case of applying with an enforcement document to the Bank for the purpose of collecting in a simplified manner. It is concluded that there are no significant grounds for differentiating the considered options for collecting funds in order to determine whether the representative of the recoverer has the right to receive the money awarded to the recoverer.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

scholarly journals The Right to Receive Information

2017 ◽  
Author(s):  
Susan Nevelow Mart
Keyword(s):  
Supreme Court ◽  
Board Of Education ◽  
Legal Evolution ◽  
The Supreme Court ◽  
The Right ◽  
To Receive

Ms. Mart examines the legal evolution of the right to receive information, particularly focusing on its application to libraries, beginning with the Supreme Court holding in Board of Education v. Pico, and followed by cases that have considered the meaning of Pico in a variety of library-related contexts.

scholarly journals Obowiązek zwrotu nienależnie pobranego zasiłku chorobowego w związku z podjęciem pracy zarobkowej w orzecznictwie sądów powszechnych i Sądu Najwyższego

2019 ◽  
pp. 159-173
Author(s):  
Joanna Wojciechowicz
Keyword(s):  
Supreme Court ◽  
Social Insurance ◽  
Case Law ◽  
Sickness Benefit ◽  
Paid Work ◽  
The Supreme Court ◽  
Insured Person ◽  
Cash Benefits ◽  
The Republic ◽  
The Right

This paper deals with the problems relating to the obligation to return the sickness benefit in the event when an insured person takes up paid employment during confirmed incapacity for work due to illness. The reason for this analysis is the non-uniform or inconsistent practice of the Supreme Court. In the majority of its issued verdicts, the opinion of the Supreme Court is that the the claim for returning the undue bene-fit paid ought to be withdrawn and cancelled if there was no information provided in the instruction about the circumstances that may lead to the forfeiture of the entitlement to statutory sickness benefit under Article 17(1) of the Act of 25 June 1999 on cash benefits from social insurance in case of sickness and maternity. However, there is also a different standpoint according to which the lack of instruction is not a sufficient basis for adjudicating that the insured party is not obliged to return this benefit. In its judgments, the Supreme Court emphasises the importance of the way in which the insured person acts. Submitting a sick leave and performing paid work is tantamount to misleading the disability pension body as to the circumstances that determine the right to a sickness be-nefit. Divergences in the judicial decisions of the Supreme Court have an impact on the judgments issued by common courts, which results in different decisions in cases of identical factual status. The non-uni-form case law of common courts has a direct impact on the situation of individual beneficiaries. Despite the same factual circumstances some insured individuals have to return the benefit whereas others are exempted from this obligation. This creates secondary inequality of the insured persons who constitute a group of similar subjects and is inconsistent with the principle of equality expressed in Article 32 of the Constitution of the Republic of Poland.

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