scholarly journals Role of the Plenum of Russian Supreme Court in the judicial practice formation

2022 ◽  
Vol 5 (4) ◽  
pp. 209-225
Author(s):  
Yu. S. Pestereva ◽  
I. G. Ragozina ◽  
E. I. Chekmezova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Complex Analysis ◽  
The Other ◽  
Judicial Discretion ◽  
Dialectical Theory ◽  
Judicial Practice ◽  
Other Hand ◽  
The Law

The subject. The article considers the role of the Plenum of Russian Supreme in forming judicial practice on the example of giving qualification to the crimes committed against sexual freedom and inviolability, as well as against property and public health.The objective of the article is to conduct a complex analysis of the function of the decisions, taken by the Plenum of Russian Supreme Court, in the formation of a unified vector of judicial practice. The authors dare to refute the hypothesis hat judicial practice can be recognized as a source of law.The methodological basis of the research is the dialectical theory of development and interrelation of phenomena. Historical, formal-logical, systematic methods of knowledge have been identified as relevant to the topic of the study.The main results, scope of application. The authors draw attention to the problem of evaluative features used in the process of law enforcement when interpreting the norms of the Special Part of the Criminal Code of the Russian Federation. A norm with such signs acquires an unformalized essence from the point of view of the boundaries of criminalization of a particular phenomenon. On the other hand, the nature of crimes is so diverse that without the flexibility of criminal law regulation (allowing the use of evaluative features), the application of the norm taking into account specific circumstances in a particular case may not be possible. The authors also consider issues related to the characteristics of the objective side, the end time of these crimes, the application of the formula of a single ongoing crime and its separation from related compounds. The process of law enforcement is based on such guidelines as the norms of law, judicial discretion, established judicial practice, the position of the Plenum of Russian Supreme Court. Attributing an explanatory role to the decisions of the Plenum of Russian Supreme Court does not completely eliminate the shortcomings inherent in legal technology. Correcting the current situation with the help of judicial discretion is not always justified, since this is possible only if there is a legitimate alternative. Assigning the status of a precedent to a judicial decision may lead to the substitution of the law by decisions taken in a particular case.Conclusions. The judicial practice concerning these issues is completely different. Despite the existence of similar situations, courts, as a rule, qualify an offense using various norms of the law, which negatively affects compliance with the principle of legality. The issue related to the function of the decisions of the Plenum of Russian Supreme Court in the formation of a single vector of judicial practice has been and remains debatable. The continued addition of new articles to criminal legislation, on the one hand, indicates the desire of the legislator to bring it to perfection, but, on the other hand, forms a mechanism for clarifying the rules of its application, which sometimes leads to their contradictory interpretation. At the same time, crime and punishment should be determined only by legislation.

scholarly journals PROGRESIVITAS DALAM PENEGAKAN HUKUM PENYALAHGUNA NARKOTIKA

2017 ◽  
Vol 39 (2) ◽  
pp. 133
Author(s):  
Noni Surhayanti
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
The Other ◽  
The Supreme Court ◽  
Circular Letter ◽  
The Law

In the enforcement of law, there were found law problems that affect the establishment of the law which is faced by narcotic abusers. For the narcotics abusers who used it for themselves are often accused either singly or alternatively accusation with other article such as Article 111 or 112 Act Number 35 of 2009 on Narcotics, meanwhile in fact the executants proved as a abusers narcotics and invaded Article 127. This phenomenon triggered the dilemma for the judges in deciding the case in which are people who used narcotics without rights or unlawfull act, but on the other side the Article 127 is not accuse in letter accusation. The Circular Letter of the Supreme Court Number 3 of 2015 overcomes the problems of the decisions that must be taken by the Judges in deciding the judgement and granting the Judges of the discretion to impose the verdict by deviating from the minimum criminal provisions as stated in the Article 111 or 112, at the same time it signifies that progressivity law has an important role of law enforcement as well as the  justice.             Keywords : Progressifity, Law Enforcement, Narcotics Abusers.

scholarly journals Establishment by virtue of the law of land easement with the content corresponding to transmission easement in the light of the resolution of the Supreme Court of June 5, 2018, in case III CZP 50/17

2019 ◽  
Vol 29 ◽  
pp. 227-236
Author(s):  
Anna Maria Barańska
Keyword(s):  
Property Rights ◽  
Supreme Court ◽  
The Other ◽  
Other Hand ◽  
The Supreme Court ◽  
The Subject ◽  
The Creation ◽  
The Law ◽  
Owned Company

The subject of this article is the resolution of the enlarged composition of the Supreme Court of June 5, 2018, which resolves the issue of acquiring by land easement with the content corresponding to transmission easement together with the acquisition by a state-owned company of transmission facilities developed on State Treasury properties. As a result of granting property rights to state-owned companies of state property in the early 1990s, the ownership of the transmission infrastructure and the property on which they were situated were separated.In the judicature, divergent concepts emerged regarding the solution of the issue of  further use of this land by transmission companies. According to the first one, the transfer of property rights was accompanied by the creation by law of a land easement with the content corresponding to a transmission easement. On the other hand, according to the second concept, obtaining a legal title for further use of the property was possible only through contractual acquisition or prescription of transmission easement. Powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu w świetle uchwały Sądu Najwyższego z dnia 5 czerwca 2018 roku, sygn. akt III CZP 50/17 Tematem artykułu jest uchwała powiększonego składu Sądu Najwyższego z dnia 5 czerwca 2018 roku, która rozstrzyga kwestię nabycia z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu wraz z nabyciem przez przedsiębiorstwo państwowe własności urządzeń przesyłowych posadowionych na nieruchomościach Skarbu Państwa. W wyniku uwłaszczenia mienia państwowego na początku lat dziewięćdziesiątych ubiegłego wieku doszło do rozdzielenia własności infrastruktury przesyłowej oraz nieruchomości, na której były one posadowione. W judykaturze pojawiły się rozbieżne koncepcje odnośnie do rozwiązania kwestii dalszego korzystania przez przedsiębiorstwa przesyłowe z tych gruntów. Zgodnie z pierwszą z nich przeniesieniu prawa własności towarzyszyło powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu. Na podstawie drugiej — uzyskanie tytułu prawnego do dalszego korzystania z nieruchomości było możliwe wyłącznie w drodze umownego nabycia albo zasiedzenia służebności przesyłu.

Legal Means of Procuring the Unity Application of the Criminal Procedure Law

2020 ◽  
Vol 27 (2) ◽  
pp. 156-169
Author(s):  
Olha Shylo ◽  
Nataliia Hlynska
Keyword(s):  
Law Enforcement ◽  
Scientific Development ◽  
General Mechanism ◽  
Judicial Reform ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Practice ◽  
The Subject ◽  
The Law

Ensuring the unity of judicial practice is the implementation of the legal certainty principle, which is considered as the part of the rule of law, ensures the predictability of court decisions. At the theoretical level, the issues of the unity of judicial practice are mostly the subject of research in the context of judicial reform and the judiciary, but comprehensive research on this issue in the field of modern criminal justice is almost absent. The purpose of the study is to establish a system of legal means to ensure the unity of judicial practice. The methodological basis of the study was based on general and special methods, namely: dialectical, systematic, formal-legal and logical methods. The authors provide a brief overview of the theoretical provisions that determine the socio-legal value of the unity of law enforcement practice. The concept of "unity of judicial practice" in the field of criminal proceedings is analyzed and it was emphasized the usage of the approach of understanding the unity of judicial practice as a synonym of equal (adjustment) application of procedural and material norms in homogeneous categories of court decisions, which are adopted in the course of criminal proceedings. It is established that the limit of permitted differences in the application of the law is quite flexible and informal. It is established that the quality of the law cannot be assessed in isolation from the practice of its application. The authors also emphasize the instrumental role of judicial practice in the general mechanism of ensuring uniformity of law enforcement. A position was expressed on the role of explanations of the Plenum of the Supreme Court in the general mechanism of ensuring the unity of judicial practice. It is established that the system of legal means to ensure the unity of application of the law in the field of criminal proceedings consists of a set of interrelated elements. The results of the study can be used in further scientific development of the problem of ensuring the unity of judicial practice, scientific substantiation of proposals aimed to improve the current legislation of Ukraine, which regulates the issues that have become the subject of this research

scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

scholarly journals Perbuatan pidana kesusilaan dalam rancangan undang-undang KUHP

2004 ◽  
Vol 1 (2) ◽  
Author(s):  
Sri Hartini
Keyword(s):  
Law Enforcement ◽  
Criminal Policy ◽  
Criminal Code ◽  
Social Philosophy ◽  
The Other ◽  
Statutory Rape ◽  
Other Hand ◽  
The Law

As an independent and sovereignty country, Indonesia should arrange KUHP (Kitab Undang-Undang Hukum Pidana) to avoid loss of criminalities that have been increasing. The renewal of KUHP is very needed because it's not proper with the values of social politic, social philosophy, and social cultural of Indonesia people. It is the basic for sosial, criminal policy, and law enforcement. The urgency of revising of KUHP, specially putting susila crime put in draft criminal code (RUU KUHP) and almost the requirement still be formed widely, not distinguishing between criminal and people who break the rule, but the words "susila Crime” and the newly "statutory rape" and "incest’. According to the renewal, it's needed to direct it into the law development that is democratic and responsive, so that the law's function-that protect the society, can give fairness and as a development instrument will raise suitable with the principle of law country.  Although the draft criminal code (RUU KUHP) still need to be discussed again, remembering the effort to have national KUHP is very urgent, so it's better that draft criminal code (RUU KUHP) is not need more time to be UU, in the other hand, technically we will face difficulties in law enforcement because the representatives and experts are more free to say their thoughts.

scholarly journals Forging Alberta's Constitutional Framework, Richard Connors and John M. Law, eds., and The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger, Ed.

2008 ◽  
Author(s):  
James W. Muir
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
The Other ◽  
Weight Of Evidence ◽  
Recent Issue ◽  
Other Hand ◽  
New Directions ◽  
The Law ◽  
The One ◽  
Made In

In a recent issue I raised the question of whether Canada has developed a distinctive law of its own. With two recent publications it is possible to focus that question more narrowly and ask if there is such a thing as a distinctive Albertan law that has developed over the twentieth century. In the introduction to their book Forging Alberta's Constitutional Framework (Forging), Richard Connors and John Law declare that "Alberta has, in part, forged its own Constitution and its place within Canada's Constitution." This statement perfectly balances the issue: on the one hand, Alberta has its own Constitution that it has made itself; on the other hand, it exists as an entity within the wider Canadian constitutional framework. In his introduction to The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger strikes a similar balance: "In those areas where the Court did act, the weight of evidence suggests that while some aspects of Alberta's jurisprudential path have been creative and forward looking, in others they were less inclined to strike out in new directions.... And if the Court's jurisprudence in a given area might appear tentative or tightly prescribed, in others we find indications of a distinctive "made in Alberta" flavour that did not necessarily tread expected paths."Reading these books introduces us to many interesting parts of Alberta's legal past, but in the end these sometimes unique events do not lead us to conclude that there is much distinct about the law in Alberta, whether in its constitutional framework or in its courts.

Knowledge which Reached a High Degree of Probability

1967 ◽  
Vol 2 (1) ◽  
pp. 18-34 ◽  
Author(s):  
D. Bein
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Other Hand ◽  
The Law ◽  
High Degree

In the decisions of the Israel Supreme Court delivered since the establishment of the State, one sometimes comes across the express or implied statement of the rule that: “the knowledge possessed by the accused at the time of the act that his conduct would lead to a consequence which the legislature desired to prevent, is by a construction of the law regarded as intention to bring about this consequence. ‘Knowledge’ in this context does not necessarily mean ‘full and certain’ knowledge that this consequence is inevitable but on the other hand it must be knowledge which reached a high degree of probability.”The object of this article is to clarify a few aspects of this rule (which, for the sake of brevity, will be referred to as the rule of “constructive intention”).

scholarly journals Combating the Illegal Activities in Financial Markets: The Role of the Bank of Russia

Legal Concept ◽  
2019 ◽  
pp. 145-153
Author(s):  
Alina Gazalova
Keyword(s):  
Law Enforcement ◽  
Financial Markets ◽  
Financial Market ◽  
Financial Fraud ◽  
Law Enforcement Agencies ◽  
Judicial Practice ◽  
The Russian Federation ◽  
The Law ◽  
Illegal Activities

Introduction: in the paper the author notes the strengthening of the role of the Central Bank of the Russian Federation in combating financial fraud: the megaregulator units identify the signs of violations, as reported by the law enforcement and supervisory authorities. All initiated materials are subsequently accompanied up to the stage of the final procedural decision; the cooperation with the law enforcement agencies is being actively developed. Methods: the methodological framework for this study is the methods of scientific knowledge, among which the main ones are the methods of consistency, analysis and comparative law. Results: this paper is devoted to the ongoing process of building by the Bank of Russia the system of combating the illegal activities in the financial market, including at the regional level. The most frequently detected violations of the Bank of Russia and the law enforcement practice of their suppression are given. Conclusions: the author upholds the position that the Bank of Russia is gradually becoming one of the key regulatory institutions involved in the formation of the law enforcement and judicial practice in the field of combating unfair practices in the financial market.

scholarly journals The Role of digital technologies in the new code of civil procedure

2019 ◽  
Vol 3 (1) ◽  
pp. 170-175
Author(s):  
Noémi Suri
Keyword(s):  
Digital Technologies ◽  
Sensu Stricto ◽  
Civil Procedure ◽  
The Other ◽  
Other Hand ◽  
The Law ◽  
Special Rules ◽  
Electronic Technologies

In my essay, I will examine the role played by electronic technologies in the new Code of Civil Procedure. My hypothesis is that despite the sensu stricto text of the law, the new law is built around entirely the use of electronic means of contact to be utilized instead of the traditional, paperbased solutions. The essay will on one hand uncover the overarching structure of the legislation, and on the other hand it will analyze and evaluate the substance and remits of the choice of electronic means of contact. Furthermore, it will uncover the special rules governing communication with experts, and administrative and other authorities as well as between courts. Additionally, it will scrutinize the regulations pertaining to actions taken via electronic means of contact.

BLOCKADE OF THE SURGE OF PROLACTIN AT PRO-OESTRUS BY ADMINISTRATION OF ANTI-OESTROGENIC SUBSTANCE, MER-25

1973 ◽  
Vol 74 (4) ◽  
pp. 769-774 ◽  
Author(s):  
Akira Yokoyama ◽  
Hiroshi Tomogane ◽  
Katuaki Ôta
Keyword(s):  
Strong Evidence ◽  
The Other ◽  
Other Hand

ABSTRACT A non-steroidal oestrogen antagonist, MER-25, was administered to cycling rats for elucidating the role of oestrogen in the surge of prolactin observed on the afternoon of pro-oestrus (POe). In animals injected with 20 mg of MER-25 intramuscularly on the afternoon (16.30 h) of the first day of dioestrus (D-1), the surge of prolactin was blocked while the level of prolactin on the afternoon of POe of these animals was significantly higher than that of the corresponding controls injected with oil. Ovulation was also blocked in these animals treated with the drug on the afternoon of D-l. On the other hand, treatment on the morning (10.30 h) of the 2nd day of dioestrus failed to prevent not only the surge of prolactin but also ovulation. These observations provide strong evidence for the view that oestrogen is responsible for the surge of prolactin on the afternoon of POe, and that the surge is accompanied by that of LH.

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