Appeal of the verification order as a method of protection of law

2020 ◽  
pp. 106-110
Author(s):  
Artem Kotenko
Keyword(s):  
Supreme Court ◽  
Main Body ◽  
Negative Consequences ◽  
Significant Difference ◽  
The Supreme Court ◽  
Tax Audit ◽  
Legal Position ◽  
The Moment ◽  
The Right ◽  
Problem Setting

Problem setting. The article analyzes the provisions of current legislation and the practice of the Supreme Court on appeals by a taxpayer of an inspection order as a way to protect the rights of such a taxpayer. Analysis of recent researches and publications. The problem of recognizing the right to appeal against a tax audit order, taking into account criticism of the Supreme Court’s practice, has recently arisen, and has not been covered yet by other researchers. Target of research. The purpose of the article is to analyze such a way of protection of the right as an appeal against the order to conduct an inspection. Article’s main body. Conducting a tax audit is a certain process, which by its logic has a beginning and an end. The inspection inevitably begins on the day specified in the calendar date in the inspection order. The beginning of the inspection leads to the emergence of a number of mutual rights and obligations of the payer and the supervisory authority. It is established that the documentary and actual inspection is completed on the last day of the inspection period, which is defined in the inspection order as the last day of the inspection. The act (certificate) based on the results of documentary and factual inspections may not be drawn up on the day of the end of the inspection. Although such a requirement for an actual inspection is not justified and the officials of the controlling body should be able to complete the inspection even on the day of its beginning. Then the act and / or certificate of the results of the actual inspection formalizes the end of the inspection. The problem of the moment of the end of tax audit is also a problem of realization of the rights by the taxpayer. It is important for the payer to know clearly the date of completion of the inspection. Only in this way will he be able to protect his rights and interests, avoiding additional negative consequences. There is a significant difference: provide documents during or after receiving the inspection report. Submission of additional documents is the basis for an unscheduled documentary inspection. Conclusions and prospects for the development. It is argued that the legal position of the Supreme Court on the impossibility of appealing the inspection order independently without appealing the TND is illogical, as such a position does not take into account the requirements of current legislation, in particular, the Tax Code of Ukraine and CAP of Ukraine. The need to revise the analyzed legal position of the Supreme Court and to form a new practice of the Supreme Court regarding the appeal of the order on conducting a tax audit was emphasized.

On the issue of exhaustiveness of the inspection order

2020 ◽  
pp. 66-70
Author(s):  
Artem Kotenko
Keyword(s):  
Supreme Court ◽  
Main Body ◽  
Start Date ◽  
The Supreme Court ◽  
Tax Audit ◽  
Legitimate Interests ◽  
Legal Position ◽  
Problem Setting

Problem setting. The article, based on the analysis of the practice of the Supreme Court, considers the issue of the exhaustiveness of the order of the tax audit. Emphasis is placed on the erroneous practice of the Supreme Court, according to which a taxpayer who believes that the procedure and grounds for a tax audit have been violated must protect his rights and legitimate interests by not allowing officials of the controlling body to such an audit. Target of research. The purpose of the article is to analyze the question of the exhaustiveness of the order of the tax audit. Article’s main body. It is proved that the documentary on-site and actual inspection begins on the day specified in the specific date in the order. It is possible to carry out the control settlement operation before the beginning of carrying out check, but after acceptance of the order. The period of time between the date of issuance of the order and the date of the start of the inspection is not regulated. From the date of the start of the inspection specified in the order, the possibility of conducting a control settlement operation is not provided. Thus, an order is an individual act that is exhausted by its execution or is exhausted by the expiration of a certain period. At the same time, if the order is exhausted by execution, then we should talk about the implementation of the order to conduct an inspection. It is impossible to implement the order by application, as stated in the Resolution. If the inspection is not started on a specific date specified in the order as the start date of the inspection, the order expires after the expiration of the term and is not implemented. Conclusions and prospects for the development. It is noted that the order to conduct an inspection determines the legality of its conduct. It is emphasized that the legal position of the Supreme Court, formed in the Resolution on case № 826/17123/18, in terms of the implementation of the order to conduct an inspection does not comply with the provisions of the Tax Code of Ukraine and the CAS of Ukraine.

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.

Actual issues of the search of housing or other possession of the person

2021 ◽  
Author(s):  
Yevhen Povzyk
Keyword(s):  
Law Enforcement ◽  
Scientific Literature ◽  
Scientific Research ◽  
Main Body ◽  
Unified Approach ◽  
Basic Law ◽  
The Supreme Court ◽  
The Subject ◽  
The Right ◽  
Problem Setting

Problem setting. One of the basic human rights, enshrined in the Constitution of Ukraine, is the right to inviolability of housing or other possession. The Basic Law stipulates that no penetration into a home or other possession of a person, inspection or search in them is allowed differently than according to a motivated court decision. This provision means that the state is authorized to reasonably restrict the above law. However, according to law enforcement practice, such restriction of the right to inviolability of housing or other possession is not always reasonable and there is an unequal and improper application of regulatory provisions regulating the procedure for carrying out this investigative (investigative) action. This, in turn, requires a comprehensive analysis of problematic issues that arise during the search and a unified approach to their solution. The object of research is legal relations arising during a search of housing or other possession of a person. The subject of the study are regulations that regulate the grounds, conditions and procedural procedure for conducting a search of housing or other possession of a person. Analysis of recent researches and publications. In the scientific literature, certain aspects of the search of housing or other possession were the subject of scientific research of such scientists as: V. Goncharenko, I. Hlovyuk, V. Zaborovsky, V. Noor, O. Kaplina, O. Komarnytska, O. Shvykova, M. Shumylo etc. Target of research is to study problematic issues arising during the search of housing or other possession of a person and to develop on its basis proposals for improving the current criminal procedural legislation. The scientific novelty of the research is to express proposals for improving the current criminal procedural legislation, which relate to the procedural procedure for the search of housing or other possession of a person, the announcement of a break in its conduct and the peculiarities of fixing its results. Article’s main body. The scientific research is devoted to the analysis of the grounds, conditions and procedural procedure for conducting a search in a dwelling or other possession of a person, guarantees of protection of the rights and freedoms of a person during this investigative (search) action, features of fixing the course of conducting a search of a home or other possession of a person. Conclusions and prospects for the development. Based on the analysis, we conclude that it is appropriate to apply to the decision of the Supreme Court of 02.09.2020. № 591/4742/16-k, which states that the protocol of the search of housing is unacceptable evidence, if it does not contain information about the employees of the operational units involved in it, the sequence of all actions during the search and packaging of seized items, as well as if during the search at the time of detection of equipment intended for the manufacture of narcotic drugs (subject of crime), were not present understood, invited investigators after the discovery of such equipment.

scholarly journals THE ELIMINATION FROM THE RIGHT TO INHERITANCE: THEORY AND PRACTICE

2020 ◽  
pp. 5-9
Author(s):  
M. Bondareva ◽  
S. Rabovska
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Case Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Theory And Practice ◽  
Systematic Analysis ◽  
The Supreme Court ◽  
Legal Position ◽  
The Right

The article deals with the legal regulation for removal from the right to inheritance and law enforcement of the norm of Art. 1224 of the Civil Code of Ukraine. The study aims at developing the theoretical foundations of the application of this legal norm on the basis of analysis of legislation and case law. Such methods and approaches as systematic analysis and competent legal interpretation have been applied. The Civil Code of Ukraine regulates cases and removal of grounds for the right to inheritance. Article 1224 of the Civil Code of Ukraine is applied to heirs at law; it distinguishes cases and grounds for exclusion from the right to inheritance by various criteria. However, what is typical for the countries of the continental group, the law needs to be clarified, first of all at the level of law enforcement practice. The highest jurisdiction of Ukraine – the Supreme Court of Ukraine and the Supreme Court, made appropriate clarifications and interpretations of relevant legal norms at the general theoretical level (decision of the Plenum of the Supreme Court of Ukraine) and at the level of unification of general practice through expressing a legal position in specific cases. Such interpretation should be considered clearly and sufficiently for further processing. However, judicial interpretation is not competent to correct legislative inaccuracies. And the case law itself is characterized by a tautology and inconsistency, when the departure from the previously adopted legal position is disguised under the difference of legal and factual grounds of the claim. The results of such miscalculations include variability of methods of judicial protection for the heirs of the first turn (paragraph 2, part 3 of Article 1224 and part 5 of Article 1224 of the Civil Code of Ukraine) and procedural difficulties in proving claims – proving the testator's helplessness, address need assistance from the defendant, etc. In addition to legal uncertainty, which results in the poor functioning of institutions of exclusion from the right to inherit, this state of affairs creates grounds for abuse of rights. The authors propose measures to solve the problem, which can be divided into several groups. The first concerns amendments to Paragraph 2, Part 3 of Art. 1224 and Part 5 of Art. 1224 of the Civil Code of Ukraine: in terms of the subject composition, in particular, the permission of the heirs of other than the first turn, the order of inheritance, to sue on the basis of Paragraph 2 of part 3 of Article 1224 of the Civil Code of Ukraine. The second is aimed at intensifying the institution provided by Paragraph 2 of Part 3 of Article 1224 of the Civil Code of Ukraine, inter alia, due to the uniformity and consistency of judicial practice. The introduction of the principle of participation in inheritance by bona fide heirs as a reward for their care of the testator, and the relatively easy removal of the right to inherit those who did not show such care, will also contribute to the revival of law enforcement. Finally, the third group of measures is related to the promotion of inheritance through wills, which will limit the number of disputes in inheritance cases (mainly cases of invalidation of the will) and put an end to the issue of exclusion from the right to inherit.

scholarly journals To the question of the peculiarities of the protection of the rights of spouses in cases of establishing the regime of separate residence of spouses

2021 ◽  
pp. 154-158
Author(s):  
O.А. Oksanyuk
Keyword(s):  
Supreme Court ◽  
Physical Violence ◽  
Scientific Article ◽  
Criminal Cases ◽  
Common Life ◽  
Joint Management ◽  
The Supreme Court ◽  
The Family ◽  
Legal Position ◽  
The Right

In the scientific article the author conducted a scientific study of the peculiarities of protection of property and personal non-property rights of spouses in cases of establishing a regime of separate residence. Based on the above research, the author notes that the importance of the legal position in cases of establishing a regime of separate residence of spouses is the decision of the Plenum of the Supreme Court of Ukraine №11 of December 21, 2007 “On the practice of law enforcement, divorce, annulment and division of joint property of the spouses “, namely paragraph 12 of this resolution. Unfortunately, this document is the only legal position of the Supreme Court on the establishment of the legal regime of separate residence of spouses, so to determine the approaches of courts of general jurisdiction in considering this category of cases, you should refer to the analysis of individual court deci-sions. The analysis of the conducted case law allows to indicate that the main reasons that indicate the impossibility and / or unwillingness of the spouses to live together may indicate: lack of common life goals and family interests, which makes it impossible to live together and marital relations, long separate residence, lack of joint household , the presence of different views on life, lack of mutual understanding in the family, lack of joint management, lack of desire to continue living together, family disputes and conflicts that led to tense relationships, lack of intention to resume cohabitation, alcohol abuse, lack interest in raising one’s own child, quarrels and physical violence against the other spouse. The decision of the High Specialized Court of the Court of Ukraine on Civil and Criminal Cases in Case №6-27361, according to which the existence of property disputes concerning joint joint ownership of spouses does not deprive the right to establish a separate residence regime, also has a certain legal position.

scholarly journals On The Issue about The Moment of Incurrence of Right of Cassation Appeal on Civil Cases in Republic of Bulgaria

2017 ◽  
Vol 23 (2) ◽  
pp. 175-180
Author(s):  
Atanas Ivanov
Keyword(s):  
Supreme Court ◽  
Civil Procedure ◽  
Procedure Code ◽  
The Supreme Court ◽  
The Law ◽  
Civil Cases ◽  
The Moment ◽  
The Right

Abstract The right of the party concerned to a cassation appeal is result of specific inspection performed by the Supreme Court of Cassation where examined is the presence of conditions, foreseen in art. 280, par. 1 of Civil-Procedure Code. The right of cassation, however, shall incur from the presence of appellate judgment [1], and not from the specific inspection of Supreme Court of Cassation. The cassation appeal is submitted when the resolution is void, impermissible or inaccurate. This is why the right of cassation appeal is presented and guaranteed by the law opportunity of an individual to oblige Supreme Court of Cassation to rule on the first stage of cassation proceeding - the proceeding on allowing the cassation appeal estimating the statutory criteria in art. 280 of Civil-Procedure Code.

scholarly journals ON THE POSSIBILITY OF RECALLING AN APPEAL OR CASSATION COMPLAINT OF THE DEFENDER TO THE ACCUSED, CONVICTED

2021 ◽  
pp. 323-338
Author(s):  
I. Basysta ◽  
D. Yosyfovych
Keyword(s):  
Supreme Court ◽  
Defense Attorney ◽  
Advisory Council ◽  
Criminal Proceedings ◽  
Defense Lawyer ◽  
The Supreme Court ◽  
Scientific Advisory ◽  
Legal Position ◽  
The Right ◽  
Procedural Rights

The problems of litigation stages become ever more pressing for their participants, as amendments to the criminal procedural legislation in effect are very frequent. The developing a legal position on one or the other law-related situation, to say nothing about exclusive legal issues, is not something that can be done in a day, and the situation where the judges do not have the same position on an issue is especially upsetting. The legal issue of ability (inability) by the accused, by the convicted to withdraw the appeal or cassation appeal of the defense lawyer is one of those. The fact is obvious and undeniable that in the court practice, this issue was already being resolved multiple time, yet no clear single legal position was developed for the problem. Thus, the panel of judges of the Second Judicial Chamber of the Court in its decision as of 10.05.2018 in case No. 462/4125/16к (proceedings No. 51-357км17) concluded that, by virtue of the requirements of Part 1 of Art. 403, Art. 432 of the Criminal Procedure Code of Ukraine, the petition of the convicted person to refuse the cassation appeal of the defense lawyer cannot be considered in the court of cassation, since another person applied, and not the person who filed the complaint. At the same time, the decision of 03.07.2018 of the panel of judges of the First Court Chamber of the Cassation Criminal Court of the Supreme Court (case No. 448/208/15к, proceedings No. 51-3132км18) contains the opposite conclusion. In particular, that the suspect, the accused or the convicted person has the right to carry out procedural actions and refuse a complaint filed in his interests, unless the participation of a defense lawyer is mandatory or the person is in such a vulnerable position that calls into question the voluntariness of such actions. Similar legal positions have been expressed in other judgments of the Court. Due to the disagreement of the panel of judges of the Second Judicial Chamber with such conclusions, on September 17, 2020, the decisions of this situation were submitted to the Joint Chamber for consideration, and a corresponding appeal was sent to the members of the Scientific Advisory Council. My own considerations, as a member of the Scientific Advisory Council at the Supreme Court, were set out in the scientific opinion of 25.12.2020, so I will try to share them also with the scientific community and a wide range of practicing lawyers. Based on the results of the scientific and practical search, it was proved that the current statement of Part 1 of Art. 403 of the Code of Criminal Procedure of Ukraine requires immediate alignment with the procedural rights of a suspect, accused, convicted person, acquitted person. As well as a defense attorney and with the requirements of such principles of criminal proceedings as discretion, ensuring the suspect, the accused have the right to defense, the adversarial nature of the parties and the freedom to present their evidence and in proving their credibility before the court. The criminal procedural law cannot and should not provide for the obligatory refusal of a cassation appeal by a defense attorney, presented in the interests of an accused, a convicted person, exclusively by the same person - a defense attorney. The participation of a defense attorney in criminal proceedings does not limit the procedural rights of both the suspect, the accused, and the convicted, acquitted. The accused, the convicted person has the right to withdraw the appeal or cassation complaint of the defense lawyer. Restriction of the right to withdraw an appeal or cassation complaint of a defense attorney by an accused or a convicted person may take place in two cases. In particular, if there are grounds for the mandatory participation of a defense attorney in criminal proceedings. And/or if the defense attorney proves that he/she has a justified conviction about the fact of self-incrimination by the accused or convicted , which gives him grounds to take a position that will be different from the will of the accused, convicted, including when appealing court decisions in the appeal and cassation procedure.

scholarly journals THE ADVOCATE'S DISCIPLINARY RESPONSIBILITY FOR WRONGFUL COOPERATION WITH LAW-ENFORCEMENT BODIES

2020 ◽  
pp. 44-47
Author(s):  
M. Panchenko
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Professional Status ◽  
National Legislation ◽  
The Supreme Court ◽  
Legal Position ◽  
The Law ◽  
The Right

This article is devoted to the research on the concept and features of the advocate's wrongful cooperation with law-enforcement bodies and the circumstances that influence the severity of a disciplinary penalty in the result of such cooperation. A list of certain features is given to distinguish the lawful cooperation of an advocate with law-enforcement bodies from the wrongful one, which leads to bringing the advocate to the disciplinary responsibility. The author ascertains the forms in which the wrongful cooperation of an advocate and law-enforcement bodies may occur. The article determines that law-enforcement bodies often use the information that an advocate possesses due to his/her special professional status in order to perform their functions. Besides, the article examines the possibility for an advocate to be a whistleblower under the Law of Ukraine on Prevention of Corruption. The article also analyzes the decision of the Supreme Court in the administrative case where the decision of the Higher Qualification and Disciplinary Bar Commission (HQDB) on bringing the advocate to the disciplinary responsibility and imposing a disciplinary penalty of depriving him the right to advocacy for a wrongful cooperation with law-enforcement bodies is appealed. In this research the attention is paid to the wrongdoer's arguments and the corresponding legal position of the Supreme Court which, having used the acts of the national legislation, determined advocate's actions to be illegal and denied the claimant's demands. The author defines the category of a "wrongful cooperation of an advocate with law-enforcement bodies", determines its features, and suggests the ways for improving the effectiveness of bringing wrongdoers to the disciplinary responsibility in case of such cooperation. Keywords: a disciplinary offence, a disciplinary penalty, a confidant, a whistleblower, secret investigatory (inquiry) operations, tracking measures.

scholarly journals Abortion Lawfare in Mexico's Supreme Court: Between the Right to Health and Subnational Autonomy

2021 ◽  
Vol 17 (3) ◽  
Author(s):  
Rachel Sieder ◽  
Yacotzin Bravo Espinosa
Keyword(s):  
Supreme Court ◽  
Reproductive Rights ◽  
Contentious Politics ◽  
Supreme Courts ◽  
Critical Junctures ◽  
Federal Authority ◽  
The Supreme Court ◽  
The Moment ◽  
The Right ◽  
Sexual And Reproductive Rights

Abstract This article addresses Mexico's contentious politics of abortion, legal frames, and the role of the Supreme Court. In Mexico's federal system, subnational legislatures have been the principal site of abortion lawfare, with initiatives passed to both decriminalize and restrict access to abortion, pitting frames of women's rights to health against the fetal “right to life from the moment of conception.” In this article we offer a detailed mapping of critical junctures in Mexico's abortion lawfare since 2007, based on a review of draft decisions, public transcripts, and final rulings of the Supreme Court. We suggest that while the Court has appeared largely reactive to different legislative initiatives and legal challenges, failing to produce definitive rulings affirming women's universal right to abortion, its assertion of federal authority and its increasingly restricted reading of the scope of states’ policy-making powers has in practice favored the arguments put forward by the pro-choice movement, reaffirming and even expanding women's sexual and reproductive rights. We highlight a key area for future comparative inquiry on sexual and reproductive rights lawfare in Latin America: the interplay between supreme courts and subnational legislatures in federal systems, and the ways that this shapes movement and counter-movement framings and strategies.

scholarly journals Instrumentalne wykorzystywanie władzy sędziowskiej po wyroku TSUE – wieloaspektowa analiza legalnej korupcji

2020 ◽  
pp. 107-160
Author(s):  
Waldemar Walczak
Keyword(s):  
Supreme Court ◽  
Point Of View ◽  
Equal Treatment ◽  
Public Authorities ◽  
State Institutions ◽  
Personnel Decisions ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Right

The article presents considerations and multifaceted analyses of the conditions and motives of judicial decisions taken after the judgment of the TSUE 19 November 2019, in the context of how Poland’s judiciary system functions. It begins by explaining how to perceive and understand the essence of legal corruption in terms of the use of law, power and professional position. The possibilities of the intentional use of judicial power for specific needs and purposes is discussed in this context. The next part of the paper is devoted to a critical analysis of selectively interpreted right to a tribunal enshrined in art. 45 of the Polish Constitution in connection with other values enshrined therein. The right of every citizen to a fair and public hearing of their case, without undue delay by a competent, independent, impartial and independent court, is presented in terms of the constitutional perspective, the principle of equal treatment and non-discrimination. The problem outlined here is considered from the point of view of protection against the arbitrariness of authorities and the possibility of appealing against personnel decisions enabling employment to be taken up in selected positions in state institutions. Attention is paid to the privileged legal position of judges over other citizens. The issues described and the arguments presented in this article are entirely overlooked in the literature, as well as in public debate. What follows is an explanation of how TSUE rulings are interpreted differently by various public authorities. Reference is also made to the dictum of the Supreme Court judgment of 5 December 2019, which was issued in its Labour Law and Social Security Chamber. That process initiated specific actions and activities taken by individual groups of Supreme Court judges. Finally, the resolution of the combined three chambers of the Supreme Court on 23 January 2020, the judgment of the Constitutional Tribunal of 20 April 2020, and divergent decisions regarding the implementation of the TSUE’s position of 8 April 2020 are discussed.

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