Some Aspects of the Court Protection of Family Rights and Interests

2020 ◽  
Vol 27 (1) ◽  
pp. 71-83
Author(s):  
Hanna Churpita
Keyword(s):  
Family Relations ◽  
Scientific Article ◽  
Stage Of Development ◽  
Legal Relation ◽  
Legal Relationship ◽  
Legal Nature ◽  
Rights And Interests ◽  
Legal Fact ◽  
The Right ◽  
Judicial Protection

The scientific article is devoted to some aspects of judicial protection of family rights and interests. At the present stage of development of society, one of the priority areas of public policy in Ukraine is the protection of family rights and interests. Achieving this goal is ensured through various legal means, among which a special place is occupied by judicial protection. In connection with the duplication of the list of methods of judicial protection in family and civil legislation of Ukraine, one of the problems that attracts attention is the ratio of methods of civil and family protection, as well as clarifying the possibility of applying civil legislation to regulate family relations. Therefore, the purpose of this scientific article is to analyse the problematic aspects of family law and civil law regulation of judicial protection of family rights and interests. As a result of the study, it is substantiated that the only mandatory prerequisite for establishing a legal relation by a court decision is the prior establishment by a court of a relevant legal fact as a basis for the emergence, change or termination of the legal relationship. In view of this, the court, except for cases of adoption, as well as the establishment of a separate residence on the application of spouses, protects family rights and interests in a separate proceeding not by establishing a legal relationship, but by confirming the presence or absence of legal facts, which are the basis for its occurrence, change or termination. It is established that the legislator's regulation of such special methods of judicial protection of family rights and interests as establishing a legal relationship and its annulment is due to the special legal nature of family legal relations, which does not exclude the possibility of “subsidiary application” to protect the rights and interests of their subjects using civil protection methods (recognition of the right and invalidation of a transaction).

REDEMPTION AS A LEGAL FACT IN CIVIL LAW

2021 ◽  
pp. 184-190
Author(s):  
Anatoly Ya. Ryzhenkov ◽  
Keyword(s):  
Cultural Values ◽  
Civil Law ◽  
Fundamental Principle ◽  
Third Party ◽  
Freedom Of Contract ◽  
Legal Relation ◽  
Legal Relationship ◽  
Definition Of ◽  
Legal Fact ◽  
The Right

The article is devoted to the problem of redemption as a legal fact. In its external form and in its legal consequences, it represents a paid transfer of ownership of a thing and thus primarily resembles a contract of sale, so that it could be considered as a special case of it. However, at the doctrinal level, there is a completely different picture, where the redemption under its civil law regime is not only not identified with the purchase and sale, but sometimes does not even receive unambiguous recognition as a transaction. It is noted that the comparison of various options for redemption, enshrined in the norms of civil law, allows us to identify one common feature for them: in all cases, the decision to transfer ownership or to terminate the obligation (as in the case of an annuity contract) is made not by mutual will, but unilaterally. At the same time, the transfer of the right or the termination of the legal relationship in all cases is carried out on a strictly reimbursable basis. The universal property of redemption is precisely the legal effect, the emergence of a new legal relationship is only optional. Therefore, it is possible to formulate the definition of re-demption as a paid termination of a real or binding legal relationship at the request of one of the parties or a third party. In determining the redemption price, the agreement of the parties one of them is obliged to pay the agreed amount and the right to appropriate the thing from another – an obligation to provide the item and receive the agreed amount. Thus, the relation-ship of the participants in the buyout fits the description of the obligation. Moreover, the existence of an agreement between the parties indicates that this obligation is of a contractual nature. In the case of a buyout, such an integral element of the freedom of contract as the ability to decide at its own discretion whether to enter into this contract or not to enter into it is not maintained. More precisely, only one of the parties to the contract, namely the initiator of the purchase, is entitled to such a right, and this violates another fundamental principle of civil law – the equality of the participants in the legal relationship. The overall buyout model is a complex factual composition and includes the following elements: 1) the Base purchase (for example, abandoned the maintenance of cultural values, the mistreatment of animals, disagreeing with the decision of the shareholders meeting, etc); 2) treatment with the ransom demand, the transaction; 3) determination of the redemption price of: a) by agreement – a contractual obligation; b) court – ordered non-contractual obli-gation; 4) Payment of the purchase price (optional characterized proprietary and joint rela-tions, is the transfer of property to the payer; 5) Termination of a pre-existing legal relation-ship (with or without a new one).

scholarly journals Some Problems of the Realization of Marital Relation with Foreigners

2021 ◽  
Vol 81 (2) ◽  
pp. 169-175
Author(s):  
S. S. Myrza ◽  
I. A. Serednytska
Keyword(s):  
Legal System ◽  
Family Relations ◽  
Scientific Article ◽  
Legal Systems ◽  
Marriage Age ◽  
Marital Relations ◽  
Wide Range ◽  
Marriage Contract ◽  
Legal Fact ◽  
The Right

Given that the right to marry is an inalienable right of everyone, guaranteed by international law and national legislation of different world countries, it is accordingly forbidden to interfere with the lawful marriage. At the same time, the marriage procedure in different countries has its own characteristics, which depend on such factors as culture, religion, features of the legal system, etc. The influence of these factors on the marriage with a foreign element and some problems that may arise during its conclusion were taken into account while writing this scientific article. Thus, since the current legislation and the legal system of different countries may significantly vary, there may be some problems in the implementation of marital relations with foreigners, which require more detailed study. The problematic issue of realization of marital relations with foreigners on the territory of Ukraine and in foreign countries with different legal systems has been revealed. The procedure of concluding marriage between citizens of the state and certain aspects of marriage with foreigners has been determined. Particular attention has been paid to the analysis of the procedure of marriage with a foreign element in countries with common law, Romano-Germanic and Islamic legal systems. It has been noted that marital and family relations are regulated by separate legislative acts and in some countries by religious norms. The practical aspects of marriage registration have been revealed, in particular, the conditions, the observance of which is obligatory for the registration of marriage with a foreign element have been described and characterized. It has been noted that marriage under current law of different countries can take place only if the established requirements are followed: conclusion of marriage contract, lack of close blood ties, compliance with the requirements of religion, reaching marriage age, mutual consent of both parties, equality, presence of witnesses while concluding a marriage contract and marriage, observance of folk traditions. The emphasis has been placed on the fact that a foreign element within international family law at the time of marriage is manifested in two aspects: as a subject of legal relations and as a legal fact. The authors have analyzed the case law of the European Court of Human Rights in regard to the protection of the rights of married women, which has answers to a wide range of problematic issues that arise in certain life circumstances regarding the conclusion of marriage, including with a foreign element.

Legal nature of individual proceedings in cases of granting the right to marriage

2021 ◽  
pp. 88-93
Author(s):  
T.M. Balyuk
Keyword(s):  
Family Law ◽  
Adoptive Parent ◽  
Intangible Asset ◽  
Scientific Article ◽  
Adopted Child ◽  
Legitimate Interest ◽  
Civil Proceedings ◽  
Legal Nature ◽  
Specific Material ◽  
The Right

The scientific article is devoted to the study of the legal nature of separate proceedings in cases of granting the right to marry.It is established that a separate proceeding as a type of non-litigious civil proceedings is characterized by: 1) the absence of a dispute about the right, which, at the same time, does not exclude the existence of a dispute about the fact; 2) a special object of judicial protection – a legally protected (legitimate) interest, which is the needs and aspi-rations to use a specific material and (or) intangible asset, which may or may not be mediated by a certain subjective right. Protection of legally protected (legal) interest is carried out by the court by deciding on the presence or absence of legal facts relevant to the protection of rights, freedoms and interests of a person or creating conditions for the exercise of personal non-property or property rights or confirmation of the presence or absence of undisputed rights.It is determined that a separate proceeding in cases of granting the right to marry is a type of non-litigious civil proceedings for consideration of applications for confirmation of the presence or absence of legal facts that are im-portant for creating conditions for a person’s right to marry. It is substantiated that the legal nature of separate proceedings in cases of granting the right to marry is a set of substantive grounds for granting the right to marry and features of the procedural form of consideration by the court of relevant applications that mediate changes in family law. The court, establishing the presence or absence of legal facts, decides to grant a person the right to marry, thereby expanding the family law capacity of such a person due to the ability to exercise the right to marry before reaching marriageable age or marry between the adopter’s adopted child and the adopted child, as well as between children who have been adopted by an adoptive parent.

scholarly journals FAMILY RELATIONSHIPS AND FAMILY LEGAL RELATIONSHIP AS A SUBJECT OF ANOTHER INDUSTRY REGULATION

2021 ◽  
pp. 7-15
Author(s):  
Ольга Юрьевна Ильина
Keyword(s):  
Social Security ◽  
Family Relationships ◽  
Family Relations ◽  
Inheritance Law ◽  
Family Ties ◽  
Industry Regulation ◽  
Legal Relationship ◽  
The Subject ◽  
Rights And Interests

Автор отмечает особенности регулирования семейных отношений в составе предмета права социального обеспечения и наследственного права. Отмечаются различия семейных связей и семейных правоотношений в контексте обеспечения прав и интересов граждан нормами соответствующего отраслевого законодательства. The author notes the peculiarities of the regulation of family relations as part of the subject of social security law and inheritance law. Differences in family ties and family legal relations in the context of ensuring the rights and interests of citizens by the norms of the relevant industry legislation are noted.

scholarly journals Influence of Subjective Civil Rights Protection on the Dynamics of Contractual Obligations

2019 ◽  
pp. 67-79
Author(s):  
Oleh OMELCHUK
Keyword(s):  
Civil Rights ◽  
Stages Of Change ◽  
Scientific Article ◽  
Legal Rules ◽  
Legal Relationship ◽  
Person Features ◽  
Contractual Obligations ◽  
The Moment ◽  
The Right ◽  
Self Protection

The scientific article explores the influence of methods of protection of subjective civil rights on the dynamics of contractual binding legal relations. Scientific approaches to understanding the concepts of «protection» and «protection of civil rights» have been identified. Reference is made to the relevance of the concept of «protection of civil rights» as the application of a system of methods provided for by law aimed at «termination of violation, restoration or recognition of a civil right or compensation of damages caused to the entitled person». Features are described and the concept of ways to protect subjective civil rights is defined. The concepts of «means of protection» and «measures of protection» are distinguished. Special and general ways of civil rights are described. It is concluded that special ways of protecting civil rights are provided for in the legal rules governing specific legal relations, in particular with regard to contractual binding legal relations. It is determined that civil law grants every person the right to protection of his civil right in case of its violation, non-recognition or challenge. It is stated that certain types of contractual obligations apply means of protection, which are measures of liability. The relationship between «operational measures» and «methods of self-protection» has been studied, and it has been determined that operational measures are a form of self-protection methods, as they have a number of common features. It has been proven that any legal relationship is in the dynamics associated with legal facts from the moment of its occurrence to the moment of termination, which are mostly distant from each other in time and space. It is justified that both general and special ways of protecting civil rights are possible at the stage of the establishment of a contractual binding legal relationship. Along with the emergence of a legal relationship, the stages of change and termination of the legal relationship occupy a place.

scholarly journals LEGAL NATURE OF PROPERTY RIGHTS AND THEIR STATE REGISTRATION

2020 ◽  
Vol 1 (4(106)) ◽  
pp. 183-191
Author(s):  
Ю. М. Щавинська
Keyword(s):  
Property Rights ◽  
Local Governments ◽  
Family Relations ◽  
Legal Protection ◽  
Legal Nature ◽  
Administrative Duty ◽  
State Organizations ◽  
State Registration ◽  
The Right ◽  
Legal Entities

The relevance of the article is that the property rights of citizens and businesses are not only the basis of Ukraine's economy - they are based on family relations, they are also the material basis of local governments and state organizations, institutions and enterprises. In other words, without their proper registration and protection, it is impossible to ensure any other sphere of public life. In Ukraine, some attention is paid to the legislative definition of property rights and the problem of their state registration. And if with the first part of the outlined, in our opinion, a certain harmony is reached, then the issue of protection of property rights in today's conditions is acute. Its violations, in particular raids on enterprises and other violations of the property rights of individuals and legal entities, although decreased in number, but such facts have not remained in the past. The leading instrument of administrative legal protection of property rights is the institution of state registration of property rights, which in today's conditions is undergoing a process of further transformation and improvement in the effectiveness of protection of the rights of property rights. The artіcle reveals and descrіbes the legal nature of property rіghts and theіr state regіstratіon. Thіs іs done on the basіs of the theory of natural law, the theory of admіnіstratіve law, the theory of cіvіl law, as well as domestіc legіslatіon. Іt іs proved that the legal nature of the state regіstratіon of real rіghts to іmmovable property іs that іn іts іmplementatіon there are specіfіc admіnіstratіve and legal relatіons of a protectіve nature. It is concluded that the legal nature of state registration of property rights to property rights is that in its implementation there are classic administrative and legal protection relations, which involve applicants or their authorized persons, usually private legal entities, and public ( public) registrars as subjects of power. The content of these relations is: 1) the subjective right of the applicant to receive a kind of public protection in formal form (security document) and in essence - to use the entire public apparatus of protection and state coercion in his case in case of violation of registered property rights; 2) the administrative duty of a special subject of public administration (registrar) is a public obligation to carry out such registration. In turn, the registrar has the right to demand from the applicant provided by the current legislation confirmation of ownership of the property rights submitted for registration. Legal facts in the analyzed area of administrative and legal relations are the entry in the register of decisions on state registration, which directly lead to a change or termination of legal relations. A separate line in this area should be noted administrative-legal, administrative-procedural and economic-procedural legal relations that arise when appealing the decisions of state registrars to refuse registration (registration) of property rights to administrative or (and) judicial authorities.

The Problem of the Right to Trial: The Theory and Practice of Dualism and Interaction between Substantive and Procedural Law

2021 ◽  
Vol 16 (12) ◽  
pp. 79-97
Author(s):  
E. E. Uksusova
Keyword(s):  
Theory And Practice ◽  
Regulation Mechanism ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Legal Relationship ◽  
Civil Proceedings ◽  
Administration Of Justice ◽  
The Right ◽  
Judicial Protection

Continuing the study of specialization of Russian civil procedural law, the author, based on the invariable perspective of its action, namely: a standardized court procedure of civil proceedings in administration of justice in a certain civil case and protection of the right, dwells on certain issues of its structural and functional characteristics — classification of procedural norms, mechanism of procedural regulation, mechanism of procedural legal relationship, etc. Through the context of the principle of dispositiveness, when clarifying the scope of its action and content as the legal beginning of legal proceedings (its leading element is the right to trial leading to the interaction of substantive and procedural law in the course of judicial protection of the right), the author analyzes and reveals the content, substantiates connections and relations between various interdisciplinary phenomena of law (a claim, the right to claim, etc.). The latest jurisprudence illustrates the importance of the conceptual legal apparatus for the development of legal science, law and improvement of its implementation in the Russian legal order.

scholarly journals The civil procedure principles as the essential basis for undisputed enforcement of obligations

2018 ◽  
Vol 51 ◽  
pp. 01011
Author(s):  
Andris Pesudovs
Keyword(s):  
Civil Procedure ◽  
Legal Principles ◽  
Legal Relationship ◽  
Simplified Procedure ◽  
The Right ◽  
Judicial Protection ◽  
To Receive ◽  
Legal Consequences

Not always are a legal transaction and the legal consequences thereof limited to complete and voluntary fulfilment of the mutual obligations of the parties. In cases when a commitment has not been fulfilled, there is an option for a creditor to request for judicial protection in order to prove substantiality of his claim and to receive confirmation to his right to recover the debt in a form of court judgment. However, in the civil legal relationship such impairment of a right is possible which exists outside the dispute regarding the right. A debtor fails fulfilling his obligation and not denies doing it. In such circumstances, notwithstanding recognition of the debt, in order to achieve compulsory execution of the obligation, a document to be enforced is also needed. Provided the type of transaction allows establishing of such type of legal consequences, simplified procedural arrangements may be applied, and restricted principle of contest may result in the possibilities of procedural economy being exercised. Admissibility of such procedural possibility also inevitably activates the discussion regarding what the preconditions of the simplified procedure are and how the simplified procedure of establishing the debtor's obligation can be consistent with protection of his rights. The article focuses on the procedural legal principles, which are involved in the alternative to claim proceedings action of the expedited proceedings and the mutual coherency thereof. Attention is also paid to the form of the transaction and significance thereof in the simplified proceedings.

scholarly journals INTERNATIONAL LEGAL FOUNDATIONS OF CRIMINAL LEGAL COUNTERACTION AGAINST VIOLATIONS OF THE RIGHTS AND INTERESTS OF WOMEN IN UKRAINE

2020 ◽  
pp. 354-360
Author(s):  
С. І. Гіряк
Keyword(s):  
Women's Rights ◽  
Family Relations ◽  
Criminal Policy ◽  
Legal Protection ◽  
Maximum Effect ◽  
Women’S Rights ◽  
Gender Based Violence ◽  
Stage Of Development ◽  
Legal Foundations ◽  
Rights And Interests

The relevance of the article is that at the present stage of development of criminal law counteraction to violations of women’s rights, recognizing the need to build a comprehensive system of legal protection against violence in the field of gender equality using existing positive developments in this field, foreign criminologists should not seek direct borrowing. their proposed forms and methods of combating crimes against women’s rights. This issue is also highlighted by the focus on achieving maximum effect in the prevention of gender crimes, which requires the legislator serious theoretical training and adaptation of various measures to prevent violence against women, taking into account the specifics of the legal mentality in the context of general criminal policy trends. The article examines the international legal foundations of the criminal legal counteraction to the violation of the rights and interests of women in Ukraine, presents the characteristics of the influence of acts of international law on the criminal legal mechanisms of combating crime in the field of violation of women’s rights. It is shown that the international legal framework for the criminalization of violations of the rights and interests of women in Ukraine, which boil down to crimes of the status of crimes against humanity, the recognition of the crime of sexual violence, regardless of the marriage and family relations of the victim and the perpetrator, regulation of the inadmissibility of discrimination on the basis of sex, the invalidation of which would be Whatever factors in justifying gender-based violence, the formation at the international level of special respect and protection of women’s rights, make it possible to substantiate the admissibility of the application in national legislation of the most severe criminal-legal measures in the field of combating violent crimes against women’s rights in the context of ensuring personal freedom in the context of modern global trends in strengthening the protection of human rights.

scholarly journals Legal nature and features of retirement legal relations of Ukraine in terms of reforming

2020 ◽  
Vol 1 (1) ◽  
pp. 270-275
Author(s):  
Lyusya Mozhechuk
Keyword(s):  
Legal Status ◽  
Pension Reform ◽  
Scientific Article ◽  
Pension Insurance ◽  
Legal Form ◽  
Social Nature ◽  
Legal Relationship ◽  
Legal Nature ◽  
Definition Of ◽  
Legal Entities

The article deals with study of the legal nature and specifics of pension legal relations in Ukraine in the context of pension reform. In the scientific article the definition of such concepts as «pension insurance», «pension» and «pension legal relations» is formed. The main features of pension legal relations are highlighted, in particular, the attention is paid to their redistributive and social-alimentary nature. The specific features of the subjects and the object of the pension legal relationship are disclosed. In particular, the legal status of general and special pension legal entities is provided. The features of the pension that distinguish it from other payments of a social nature are identified. The scientific article describes the relation between the concepts of «pension legal relations» and «legal relations in the field of pension provision». The attention is focused on the directions of reforming the sphere of pension provision of Ukraine and the measures taken at the first stage of reforming. The definition of pension provision of Ukraine is given. This is the kind of material security provided for by the legislation, granted that there are grounds specified by the current legislation of Ukraine. The organization-legal form of pension provision is a pension legal relationship that enables it not only to exist, but to function as a whole. By their legal nature, retirement relationships are complex and characterized by the presence of certain features, including a special subject and an object. Pension law relations have undergone significant changes today due to the first stage of Ukraine's pension reform.

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