Dispositive Model of Active Legal Capacity of People with Mental Disabilities in France and Quebec in the Context of the Russian Civil Code Reform (Part II)

2021 ◽  
pp. 80-87
Author(s):  
Terdi E. S. ◽  
◽  
Skrynnik I. K. ◽  
Keyword(s):  
Mental Disorder ◽  
Legal Protection ◽  
Legal Regulation ◽  
Civil Code ◽  
Point Of View ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Legal Norms ◽  
Leading Role ◽  
Legal Method

The article is devoted to the problem of the inconsistency of the Russian imperative model of active legal capacity, according to which the content of active legal capacity in case of its restriction due to mental disability of a person is prescribed by the law, to the Convention on the Rights of Persons with Disabilities ratified by Russia in 2012. The purpose of the paper is to demonstrate the shortcomings of the imperative model, the main of which is the lack of authority of the Russian court to individually determine the consequences of restriction of active legal capacity of a person due to mental disorder, taking in account degree of actual decrease of his cognitive and volitional abilities. This purpose is achieved by the consistent implementation of the following tasks. First of all, characteristic of the Russian imperative model of active legal capacity is given. Secondly, the French dispositive model of legal capacity is described. In this model the forms of legal protection, but not the categories of active legal capacity, incapacitation and restricted active legal capacity are the backbone concepts for the legal regulation of this group of relationship. It is noted that under the influence of the Convention on the Rights of Persons with Disabilities the more progressive, from the point of view of international law, forms of this model are stipulated in many foreign countries. Thirdly, the evolved form of the French dispositive model of active legal capacity, implemented in the Bill 18 «An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons», that was adopted by the National Assembly of Quebec in 2 June 2020, is analyzed. The main advantage of the latter is that the court, establishing the form of protection, is not bound by the legal norms that imperatively determine the content of active legal capacity of a person with mental disorder. The court is able, based on the cognitive and volitional abilities of particular person, to individually determine which acts person can perform by himself, alone or with the assistance of the tutor, and which one can be performed by the tutor only. The objectives of the study determine the leading role of the comparative legal method in its implementation. The provided research makes possible to assess the perspectives of borrowing of French or Quebec dispositive models of active legal capacity of people with mental disorder by the Russian legislator.

Dispositive Model of Active Legal Capacity of People with Mental Disabilities in France and Quebec in the Context of the Russian Civil Code Reform (Part I)

2021 ◽  
pp. 38-46
Author(s):  
Terdi E. S. ◽  
◽  
Skrynnik I. K. ◽  
Keyword(s):  
Mental Disorder ◽  
Legal Protection ◽  
Legal Regulation ◽  
Civil Code ◽  
Point Of View ◽  
Legal Capacity ◽  
Persons With Disabilities ◽  
Legal Norms ◽  
Leading Role ◽  
Legal Method

The article is devoted to the problem of the inconsistency of the Russian imperative model of active legal capacity, according to which the content of active legal capacity in case of its restriction due to mental disability of a person is prescribed by the law, to the Convention on the Rights of Persons with Disabilities ratified by Russia in 2012. The purpose of the paper is to demonstrate the shortcomings of the imperative model, the main of which is the lack of authority of the Russian court to individually determine the consequences of restriction of active legal capacity of a person due to mental disorder, taking in account degree of actual decrease of his cognitive and volitional abilities. This purpose is achieved by the consistent implementation of the following tasks. First of all, characteristic of the Russian imperative model of active legal capacity is given. Secondly, the French dispositive model of legal capacity is described, in which the forms of legal protection, but not the categories of active legal capacity, incapacitation and restricted active legal capacity are the backbone concepts for the legal regulation of this group of relationship. It is noted that under the influence of the Convention on the Rights of Persons with Disabilities the more progressive, from the point of view of international law, forms of this model are stipulated in many foreign countries. Thirdly, the evolved form of the French dispositive model of active legal capacity, implemented in the Bill 18 «An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons», that was adopted by the National Assembly of Quebec in June 2, 2020, is analyzed. The main advantage of the latter is that the court, establishing the form of protection, is not bound by the legal norms that imperatively determine the content of active legal capacity of a person with mental disorder. The court is able, based on the cognitive and volitional abilities of particular person, to individually determine which acts person can perform by himself, alone or with the assistance of the tutor, and which one can be performed by the tutor only. The objectives of the study determine the leading role of the comparative legal method in its implementation. The provided research makes possible to assess the perspectives of borrowing of French or Quebec dispositive models of active legal capacity of people with mental disorder by the Russian legislator.

scholarly journals DEVELOPMENT OF ADMINISTRATIVE AND LEGAL REGULATION OF URBAN PLANNING ACTIVITY IN THE CONDITIONS OF ECONOMIC CRISIS AND EUROPEAN INTEGRATION DESIRE

2020 ◽  
Vol 6 (3) ◽  
pp. 36-40
Author(s):  
Viktor Leschynsky
Keyword(s):  
Urban Planning ◽  
Practical Importance ◽  
Legal Regulation ◽  
Living Environment ◽  
Legal Norms ◽  
Leading Role ◽  
Stage Of Development ◽  
Legal Method ◽  
Close Relationship ◽  
Legitimate Interests

The irreversibility of the European course of Ukraine, enshrined in the fifth paragraph of the preamble of the Constitution of Ukraine, determines the direction and methods of implementation in all spheres of society and the state, everyone’s awareness of the leading role of guarantees of rights, freedoms, legitimate interests of each person, acquisition of power ex officio. The current legislation, endowing a person with power, not only provides the scope of rights, respectively, the functions performed, but also imposes additional responsibilities, the proper implementation of which is one of the guarantees of the legitimacy of state power. This fully applies to the implementation of permitting activities in the field of urban planning, which aims to create conditions for the formation and maintenance of a full living environment, including ensuring the preservation of cultural heritage and infrastructure necessary for the existence of the living environment. Methodology. The use of cognitive general scientific and special methods allowed to achieve the goal of this publication. Thus, the study of the historical development of administrative and legal regulation of urban planning allowed to determine the close relationship between the areas, in which such construction was carried out, and the development of legal norms for it (both administrative and legal, and technical). Comparative legal method, analysis, synthesis allowed to identify prospects for administrative and legal regulation of urban planning. The practical importance. Improving the administrative and legal regulation of urban planning activities takes into account not only specific law enforcement problems, but also general social (including economic, social, etc.) processes; systematization of construction legislation and its proper application. A feature of the current stage of development of administrative and legal regulation in this area is the focus on the best foreign experience, which gives initial importance to human rights and freedoms as factors of legal regulation in this area.

scholarly journals Regulation of beekeeping as a vector of green economy’s institutional development

2021 ◽  
Vol 937 (3) ◽  
pp. 032120
Author(s):  
T Skvortsova ◽  
T Epifanova ◽  
T Pasikova ◽  
N Shatveryan
Keyword(s):  
Legal Status ◽  
Legal Protection ◽  
Institutional Development ◽  
Legal Regulation ◽  
State Regulation ◽  
Green Economy ◽  
Legal Norms ◽  
Legal Method ◽  
Logical Method ◽  
Cis Countries

Abstract The purpose of the article is to study the aspects of beekeeping regulation as a vector as a vector of green economy’s institutional development. To achieve the objectives indicated, the authors analyze the legal status of bees as objects of legal regulation and legal protection; the beekeeping activity and the legal status of beekeepers and their associations; the issues of state regulation of beekeeping activities. In the course of the study the authors applied the systemic and structural-functional methods of scientific knowledge, the comparative legal method, the method of interpreting legal norms, as well as the logical method. As a result of the study, conclusions were drawn about the need to improve the regulation of beekeeping activities both by the norms of the national legislation of Russia and at the level of the CIS countries. A coordinated state policy to support beekeeping activities within the CIS could significantly affect the development of beekeeping in the CIS countries. In this regard, the proposed measures to improve the legal regulation of beekeeping in Russia and to create mechanisms for state support of beekeeping in the CIS countries are proposed as a vector of institutional development of the green economy.

scholarly journals OBLIGATION TO SUPPORT DISABLED PERSONS IN COMPLIANCE WITH THE PRESENT INTERNATIONAL LEGAL NORMS AND OTHER INTERNATIONAL PROVISIONS

2019 ◽  
Vol 5 (4) ◽  
pp. 155
Author(s):  
Ehor Nazymko ◽  
Olena Nazymko
Keyword(s):  
Older Persons ◽  
Legal Status ◽  
Legal Protection ◽  
Disabled Persons ◽  
International Standards ◽  
Persons With Disabilities ◽  
National Legislation ◽  
Legal Norms ◽  
Legal Method ◽  
The Disabled

One of the fundamental social, socio-forming institutions, which are strictly protected, including through the relevant rules of the current law, is the longstanding institute of support for persons who are unable to provide for themselves through the special disability or incapacity at all. A very important socio-institutional and socio-regulatory component of such an institution is a social consensus about the support of people with physical disabilities, which is constantly reproduced and permanently required by social communities. Among many components of the mentioned consensus, of great importance was also the indispensable obligation to carry out the full, decent or at least minimally necessary financial and material and other such support, provided by law and moral and ethical tradition, first by the parents of their young and minor children, and then, in turn, by adult, legally capable children of their older persons, including disabled, socially vulnerable parents. In spite of the necessity of careful treatment by society towards the disabled, in each country, this obligation is regulated in different ways. Therefore, it seems appropriate to analyse the obligation to keep disabled persons within the meaning of current international law and other international provisions. Methodology. The goal is solved using the cognitive potential of the system of philosophical, scientific, and special methods. The analysis and synthesis made it possible to identify the signs of incapacity for work and the specifics of the responsibilities for the maintenance of disabled persons. The methods of grammatical consideration and interpretation of legal norms have contributed to the identification of universal legal constructs that can be used in the national legislation of any sovereign country of the world. The comparative-legal method allowed determining the directions of development of national legislation of sovereign countries in order to bring them into conformity with generally accepted international standards. Practical implications. The peculiarities of the social and legal status of disabled persons require scientists to develop consistent measures of the proper legal protection of their rights. This requires establishing a clear contentspectral relationship between the concepts of such vulnerable, helpless social-group categories as “older persons”, “persons with disabilities”, and “mentally retarded persons”, which implies a broad socio-physical contextual concept of “disabled person”. The national legislation of each sovereign country should provide for a mechanism developed at the international level for collecting funds for the benefit of certain socially vulnerable persons, including the disabled.

scholarly journals THE PROBLEM OF DETERMINING PRIORITIES OF ECOLOGICAL AND LEGAL PROTECTION: NATURE AND HUMAN HEALTH AS OBJECTS OF LEGAL

2017 ◽  
Vol 21 (1) ◽  
pp. 177-183 ◽  
Author(s):  
E. V. Vorontsova
Keyword(s):  
Legal Protection ◽  
Environmental Safety ◽  
Legal Regulation ◽  
Point Of View ◽  
Nature Protection ◽  
Legal Norms ◽  
The World ◽  
Ecological Relations ◽  
Environmental Relations ◽  
Legal Mechanism

The paper is devoted to the problematic issues of the legal regulation of nature protection activities in the Russian Federation. The author notes that a sharp deterioration of the ecological situation indicates a crisis of the previously existing paradigm of human-environmental interaction. Therefore, the situation requires full-scale measures within the state's environmental strategy. However, the change of the environmental state policy as a whole and the improvement of the legal mechanism of environmental relations in particular encounters a number of theoretical and practical problems, which have not been solved. The author pays attention to the problem of determining the priorities of environmental and legal protection, which is very important in the process of establishing the optimal ratio in the "human-nature" relations. The result of solving the problems influences the objectives of the state environmental policy, as well as the objectives of the Environmental Safety Strategy. The author analyzes the main aspect of the considered problem, the essence of which is ambiguity of the fundamental object in ecological relations. It is noted that today there are two points of view on this issue in the Russian legal science. According to the first one, the object of legal protection is exclusively environmental interests of a man. Accordingly, the protection of nature must be carried out exclusively in the interests of his life and health. Supporters of the second point of view believe that the nature as a whole should be a priority in legal protection. The author notes that the choice of a particular conceptual position (and, accordingly, the priority of environmental and legal protection) depends on the world outlook on the role and place of a man in the world. At the same time, problems of a technical and legal nature, connected with internal logic and subordination of legal norms regulating ecological relations worsen the situation. The author concludes that there are internal contradictions in the mechanism of legal protection of the environment.

scholarly journals The Genesis of the System of Administration of the Transport Routes and of the Transport Law in Russia (9th to 18th centuries)

2019 ◽  
Vol 17 (3) ◽  
pp. 260-277
Author(s):  
Yu. I. Petrov ◽  
A. I. Zemlin ◽  
O. M. Zemlina
Keyword(s):  
Public Relations ◽  
Social Relations ◽  
Legal Regulation ◽  
Point Of View ◽  
Historical Period ◽  
Legal Analysis ◽  
Legal Norms ◽  
Legal Method ◽  
Starting Point ◽  
Scientific Results

The article analyzes Russian historical and legal heritage containing the norms governing social relations that arose in the process of development of water and inland roads, transportation, state administration in the transport field, and studies the most important norms of Russian transport legislation. The purpose of the research was to study legal regulation of transport relations in the historical period from 9th through 18th centuries in order to identify the main stages of development and periodization of domestic transport law.The study was carried out using methods of legal analysis, including formal-dogmatic method, which allowed to reveal some of shortcomings and gaps of legal regulation; historical and legal method, that, in combination with the methods of taxonomic analysis, made it possible to carry out authors’ periodization of formation of transport legislation during the studied period. The use of achievements of legal hermeneutics and tools of the linguistic-semiotic and semantic approaches provided an opportunity to clarify the content of legal norms and legal documents referring to the period under review.The results of the study are of interest from the point of view of revealing historical patterns of development of transport law, make it possible to assess the role and place of transport legislation in the system of legal regulators of public relations. The presented scientific results, taking into account already existing and practically substantiated developments, can serve as a starting point for further discussion about the prospects, trends and directions of development of Russian transport law and transport legislation.

scholarly journals LEGAL REGULATION OF MARRIAGE IN FACT IN RUSSIA AND THE USA

2016 ◽  
pp. 0-0
Author(s):  
Анна Назарова ◽  
Anna Nazarova
Keyword(s):  
United States ◽  
Legal Protection ◽  
The United States ◽  
Legal Regulation ◽  
Marriage And Family ◽  
Us States ◽  
Legal Norms ◽  
Legal Method ◽  
The Us ◽  
The Usa

This article is devoted to the analysis of legal regulation of marriage in fact in the Russian Federation and the United States. The purpose of this work is due to an increase in the number of marriage in fact and as a consequence the need for legal regulation of these relations. For a comprehensive study the author uses comparative legal method that takes into account the experience of not only Russia, but also foreign states. The author examines the legal regulation of marriage in fact in Russia and the United States; defines the legal norms, which is applied for the regulation of relations between the actual spouses, current Russian legislation and the legislation of the states of the USA. In the issue the researcher comes to the conclusion that neither in Russia, nor in the US states in the regulation of marriage in fact, special marriage and family provisions are not applied. At the same time the factual spouses are under legal protection. In Russia, the legal regulation of the relations developing between the actual spouses, no different from the regulation of corresponding relations of other persons. In some US states the actual spouses have special rights and duties, the scope of which is substantially less than the amount of the rights and duties of legal spouses.

scholarly journals Protection of the subsoil of the continental shelf of Ukraine by international and national instrumentalities

2021 ◽  
pp. 186-190
Author(s):  
V. V. Chumak ◽  
O. O. Khan ◽  
I. V. Bryhadyr ◽  
K. V. Kysylova
Keyword(s):  
Continental Shelf ◽  
Legal Regulation ◽  
Criminal Code ◽  
The State ◽  
Structural Method ◽  
Legal Norms ◽  
Foreign Companies ◽  
Legal Method ◽  
Legislative Changes ◽  
State Protection

Purpose. Identification of international and national mechanisms for protection of the subsoil of the continental shelf of Ukraine and provision of scientifically sound recommendations for improving the legal regulation of their application. Methodology. During the study, the dialectical method was used to learn the essence of such a phenomenon as the protection of the subsoil of the continental shelf; the system-structural method when analyzing objective and subjective features of the crime under Part 2 of Art. 244 of the Criminal Code of Ukraine; the comparative-and-legal method in the study on the sanction of Part 2 of Art. 244 of the Criminal Code of Ukraine; the logical and dogmatic method when developing recommendations for improving legal norms. Findings. As a result of the study, mechanisms of protection of the continental shelf of Ukraine were determined. The necessity of improvement of the legislative base regulating the order of their realization is proved. Originality. The international legal and national mechanisms of state protection of the continental shelf of Ukraine are determined. In order to improve the state protection of the continental shelf, legislative changes to Part 1 of Art. 26 of the Subsoil Code of Ukraine, Part 2 of Art. 244 of the Criminal Code of Ukraine and Part 2 of Art. 216 of the Criminal Procedure Code of Ukraine are suggested. Practical value. Proposals to improve the current legislation of Ukraine are presented aimed at improving the efficiency of the State Service of Geology and Subsoil of Ukraine, the National Police, the Security Service of Ukraine and the judiciary to protect the subsoil of the continental shelf of Ukraine from illegal use by foreign companies.

scholarly journals Banking operations as an object of administrative and legal protection

2018 ◽  
Vol 81 (2) ◽  
pp. 28-37
Author(s):  
M. Y. Bukreev
Keyword(s):  
Financial Institutions ◽  
Banking Sector ◽  
Banking System ◽  
Legal Protection ◽  
Legal Regulation ◽  
Practical Significance ◽  
Legal Norms ◽  
The Past ◽  
The Subject ◽  
Banking Operations

The subject matter of the research is the relations that are formed in the process of banking operations. It has been substantiated that banks and the banking system are among the most important financial institutions, which proper and stable functioning influences on all other spheres of life in the state. It is proved by the consequences of crises in the banking sector that have occurred in Ukraine over the past few years. Awareness of the importance of this area and the possible consequences of unlawful encroachments have determined the need to search for all legal means for combating delicts in the sphere of banking operations. Understanding the fact that one can achieve significant results in the sphere of protecting banking operations by administrative and legal means, has necessitated this scientific study. In order to analyze banking operations as an object of administrative and legal protection, the author has fulfilled the following tasks. The author has highlighted the use of the concepts of “protection” and “administrative and legal protection” in the context of their implementation in relation to banking operations. The foundations of Ukrainian and international administrative and legal regulation of protecting relations in the sphere of banking operations have been revealed. The essence and features of banking operations influencing the understanding of the sphere of protected relations have been outlined; and the content of administrative and legal protection of relations in the field of banking operations has been revealed. It has been noted that there is an extensive system of banking legislation on legal norms in Ukraine regulating banking operations that require legal protection. The practical significance of the obtained results of the article is determined by the substantiated provisions for improving the approaches to increase the efficiency of the administrative and legal protection of the relations in the sphere of banking operations. A number of practical results of the research can be used while studying administrative and legal means of protecting relations in the field of banking operations.

VALIDITY AND LEGAL EFFECT OF PUBLISHING LICENSE AGREEMENTS ACCORDING TO NEW CZECH LEGISLATION

2021 ◽  
Author(s):  
Lydie Tallova
Keyword(s):  
Czech Republic ◽  
Historical Context ◽  
Legal Protection ◽  
Civil Code ◽  
Copyright Law ◽  
Private Law ◽  
License Agreement ◽  
Industrial Property ◽  
The Czech Republic ◽  
Legal Norms

"This contribution focuses on the new legislation on the publishing license agreement in the Czech Republic. Given the legislative history and its importance in the copyright obligation area, this type of agreement occupies an essential position. The publishing license agreement is the oldest kind of license agreement. It dates back more than sixty years to earlier of the Czech legislation. Since 1953, it has been embedded in the the copyright law as a special subtype of copyright agreements. After the recent reform of the Czech private law, this legal body underwent a fundamental legislative change consisting of the transfer of this piece of legislation from the copyright law to the New Civil Code in order to unify the duality of the previous license agreement legislation formerly embedded in two legal norms of the Czech legal system. While the license provisions for literary, artistic and scientific works were contained in the copyright law provisions, the legal protection for industrial property objects, including corresponding license provisions, were subject to the commercial code. In connection with the private law reform, the New Civil Code came into effect on 1 January 2014 and its framework provided the lawmakers with a chance to unify the previously fragmented license agreement legislation into a single legal provision, while at the same time respecting the particularities of the license under copyright law. The unified license agreement legislation for commercial and civil relations in connection with the reform of local private law is newly defined in Sec. 2358 and 2389 of New Civil Code (Act No. 89/2012 Sb.), while the publishing license agreement provisions are defined in a special provision in Sec. 2384 and 2386 thereof. The new legislation has adopted the previous legislation from both special acts without any fundamental changes. However, minor changes are introduced to licensing law in the Czech Republic which are further specified in this paper. The issue under review is set in a theoretical framework and simultaneously depicted in a historical context. This paper presents the topic in its complexity by highlighting the overlap of the introduced changes in license agreement legislation with other provisions of the private law."

Sign in / Sign up

Export Citation Format

Share Document