scholarly journals Constitutional and judicial argumentation and the transformation models of normative legal regulation

2021 ◽  
pp. 39-57
Author(s):  
Aldar Munkozhargalovich Chirninov
Keyword(s):  
General Rule ◽  
Legal Regulation ◽  
Legal Norm ◽  
Transformation Models ◽  
Judicial Decisions ◽  
Judicial Practice ◽  
Time Space ◽  
Constitutional Justice ◽  
Judicial Argumentation

This article explores the interrelation between constitutional and judicial argumentation, and the key transformation models of normative legal regulation under the influence of constitutional and judicial decisions. Using the analysis and summarization of the extensive constitutional and judicial practice, the author describes the argumentative patterns emerging as a result of appeal of the constitutional justice bodies to particular variants of normative correction. Special attention is given to such corrective measures as disqualification of the legal norm, formulation of an exception to the general rule, modification of the hypothesis and disposition of the legal norm, correction of its sanction, clarification of the mechanism of action of the legal norm in time, space and scope of persons, filling of the legislative gaps, and securing additional guarantees. The novelty of this research consists in studying the constitutional and judicial argumentation from instrumental perspective, namely in the context of its of carrying out of its official function with regards to constitutional control, which allowed outlining the argumentative patterns that are prevalent within the constitutional discourse, and thus grasp the mechanism of generation of arguments. The acquired results demonstrate that conceptually, the reasoning of the constitutional justice bodies reflect the process of critical re-evaluation of the current legal regulation and determination of its constitutional flaws with simultaneous projection of the normative model that fits into the constitutional framework. The conclusion is formulated that the constitutional and judicial argumentation aims to indicate the most acceptable variant of regulation from the constitutional perspective, outline the eligible lawmaking divergence from the constitutional standards legal regulation, as well as explain which part of the normative legal regulation should be corrected based on the constitutional requirements.

Current State of Legislation, Law Enforcement and Judicial Practice in the Sphere of Conclusion, Modification and Termination of Lease Agreements for Land Plots, Concluded for Construction Purposes

2020 ◽  
Vol 1 ◽  
pp. 16-23
Author(s):  
V. V. Cheremukhin ◽  
Keyword(s):  
Law Enforcement ◽  
System Analysis ◽  
Legal Regulation ◽  
Scientific Development ◽  
Synthesis System ◽  
Judicial Practice ◽  
Current State ◽  
General Scientific ◽  
Statistical Indicators

Construction, as a sphere of the national economy, has impressive statistical indicators, determining the importance and relevance of its proper legal regulation, especially in terms of land use for relevant purposes. This article discusses the current situation in the sphere of provision of land plots for construction purposes, further alteration and termination of the relevant lease relations; provides a detailed analysis of the current legislation, law enforcement and judicial practice in such sphere. The purpose of the article is to analyze and summarize legislation judicial and law enforcement practice in this area, as well as the development of specific directions for a comprehensive dissertation research, proposals for improving the legislation regulating these relations. This goal is achieved by solving tasks such as studying of the existing legal regulation of disputed legal relations, law enforcement and judicial practice, identification of problematic and conflict-of-laws issues in the field under consideration, review of the degree of scientific development of the research topic, determination of trends in the development of this sphere of legal relations, development of specific proposals for changing legislation and law enforcement practice. General scientific (synthesis, system analysis, analogy) and special (formal-legal, comparative-legal) methods are used to solve the above problems. Based on the results of consideration of these issues, the author formulates the main problems of the legal relations under consideration, an assessment of the current degree of scientific development of this field is given, the main directions of the planned scientific research are also outlined, proposals are formulated to improve legislation and law enforcement practice.

scholarly journals Current issues of the implementation of a criminal penalty

2021 ◽  
Vol 17 (2) ◽  
pp. 93-100
Author(s):  
Ekaterina V. Avdeeva
Keyword(s):  
Integrated Approach ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Scientific Methods ◽  
Judicial Practice ◽  
Current Trends ◽  
Criminal Penalty ◽  
General Scientific ◽  
The Subject

The subject of the research is the criminal-legal aspects of the implementation of a fine as a type of criminal punishment. In this regard, an analysis of the materials of judicial practice is carried out, which makes it possible to reveal the current trends in the appointment of a criminal fine by the court. The dynamics of the appointment of a fine by the court as the main and additional punishment has been established. The purpose of the study is to uncover the problems of implementing a criminal fine as a type of punishment and to develop proposals for improving the mechanism for imposing a criminal fine by a court. The methodological basis of the research is formed by a set of general scientific and private scientific methods that predetermined an integrated approach to the study of the purpose of a fine as a type of punishment. In the course of achieving the goal of the study, special legal methods of cognition were used to facilitate the analysis of the legal regulation of the appointment of a fine, the determination of the property status of a person, and other income of the convict. The main results of the study contain conclusions and proposals aimed at improving the measures for the appointment of a fine in relation to minors, for the aggregate of crimes, when replacing a fine in case of malicious evasion from its payment. Conclusions are formulated regarding the methodological, organizational and practical aspects of the legal impact of a fine as a type of punishment aimed at achieving the goals of punishment. The novelty of the research topic lies in the formulation and solution of the problem associated with the appointment of a fine: 1) for the aggregate of crimes; 2) in relation to minors. Conclusions and proposals for improving the criminal law governing the basis and procedure for imposing a criminal fine are formulated.

scholarly journals Confl ict Regulation of Debtor’s Transactions Invalidity in Cross-Border Insolvency

2021 ◽  
Vol 16 (1) ◽  
pp. 147-155
Author(s):  
M. I. Polshkova
Keyword(s):  
Legal Regulation ◽  
European Regulation ◽  
Applicable Law ◽  
Cross Border ◽  
Judicial Practice ◽  
Foreign Law ◽  
Bankruptcy Procedure ◽  
The Stability ◽  
Relationship Of

Given the lack of proper legal regulation of both cross-border insolvency in general and the invalidity of transactions in cross-border insolvency in the Russian law, the author analyzes Russian judicial practice revealing the problem of determining applicable law in challenging the debtor’s transactions in the framework of the insolvency procedure. The author concludes that the Russian judicial practice shows that determination of the law applicable to the invalidity of transactions is contingent on the existence of a bankruptcy procedure and on the grounds for recognizing the transaction as invalid. Based on the analysis of the European regulation of legal issues applicable when challenging the debtor’s transactions in cross-border insolvency, the author considers possible exceptions to the conflict of laws lex fori concursus for certain categories of third parties to be protected from unexpected interference in the legal relationship of the parties to foreign law in order to ensure the stability of the turnover and maintain legal certainty.

scholarly journals Circumvention of the Auction Procedure by Changing the Land Plot Provision Purpose

JURIST ◽  
2021 ◽  
Vol 4 ◽  
pp. 51-54
Author(s):  
Vyacheslav V. Cheremukhin ◽  
Keyword(s):  
Law Enforcement ◽  
System Analysis ◽  
Legal Regulation ◽  
Developing Regions ◽  
Land Plot ◽  
Judicial Practice ◽  
New Construction ◽  
General Scientific ◽  
State Registration

Moscow is one of the most dynamically developing regions of Russia, in which a very significant role is played by the issues of management and disposal of city property, especially of land plots. Further development of the economy and urban economy entails the need to change the purposes for which a particular land plot is provided and used, which is formalized by the conclusion of the relevant additional agreements. The purpose of the article is to analyze and summarize legislation, judicial and law enforcement practice on the issue of concluding and state registration of additional agreements to existing land lease agreements, by which the purpose of their provision is changed from the operation of existing buildings to new construction or reconstruction. This goal is achieved by solving tasks such as studying the existing legal regulation of disputed legal relations, law enforcement and judicial practice, identification of problematic and conflicting issues in the area under consideration, determination of trends in the development of this sphere of legal relations, development of specific proposals for changing legislation and law enforcement practices. In solving the above problems, general scientific (synthesis, system analysis, analogy) and special (formal-legal, comparative-legal) methods are used. Based on the results of the consideration of these issues, the author formulates the main problems of the legal relations under consideration, assesses the emerging judicial and law enforcement practice, and formulates proposals for improving legislation and law enforcement practice.

scholarly journals LEGAL REGULATION OF THE PROCEDURE FOR HANDLING CROSS-BORDER DISPUTES IN CIVIL MATTERS WITHIN THE EU

2019 ◽  
pp. 183-192
Author(s):  
V. V. VOYNIKOV
Keyword(s):  
Economic Integration ◽  
Legal Regulation ◽  
Access To Justice ◽  
Court Decisions ◽  
Legal Norms ◽  
Cross Border ◽  
Judicial Practice ◽  
Definition Of ◽  
The Eu

This paper is devoted to the consideration of certain aspects of legal cooperation in civil matters related to the determination of jurisdiction, recognition and execution of court decisions, as well as the definition of law to be applied when considering cross-border cases within the EU. At the EU level, an entire system of unified legal norms has been created governing the procedure for handling cross-border disputes in civil matters within the Union. At the same time, the EU’s goal is not to replace national procedural legislation with Allied acts, but to facilitate access to justice in civil cases of a cross-border nature in the context of close economic integration. The author analyzes the concept of «legal cooperation in civil matters», and also reveals its key elements. The paper highlights and examines in detail the four modes of consideration of cross-border cases within the EU, notes their features, as well as analyzes judicial practice.

FEATURES OF MODERN CODIFICATION OF CIVIL PROCEDURAL LEGISLATION

2021 ◽  
Vol 11 (1) ◽  
pp. 237-242
Author(s):  
I.I. GILAZOV
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Regulation System ◽  
Legal Proceedings ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Objective Necessity

This article is devoted to the modern codification of civil procedural legislation of the Russian Federation. The author substantiated the necessity to intensify work on the determination of unified procedural mechanisms in various types of legal proceedings and the necessity to conceptual unification of legislation. The ultimate goal of unification is the adoption of a single codified normative legal act regulating civil procedural relations. In particular, the study points out the objective necessity, at this stage, of scientifically and practically grounded, deliberate, gradual and progressive actions for the conceptual unification of legislation, the ultimate goal of which is the adoption of a single codified normative legal act regulating civil procedural relations. At the same time, the unity of the legal regulation system will depend primarily on the extent to which all the features of various types of legal proceedings are identified and taken into account. Particular attention should be paid to judicial practice: both courts of general jurisdiction and arbitration courts.

DISSENTING OPINION IN THE CONSTITUTIONAL JUSTICE AND THE EVOLUTION OF LEGAL SCIENCE

2021 ◽  
Vol 7 (4) ◽  
pp. 167-182
Author(s):  
Konstantin V. KARPENKO
Keyword(s):  
Law And Order ◽  
Constitutional Courts ◽  
Scientific Discussion ◽  
Judicial Practice ◽  
Legal Method ◽  
Legal Science ◽  
New Ideas ◽  
Constitutional Justice ◽  
The One

The article deals with the influence of the dissenting opinions of constitutional judges on the development of legal science. This issue is usually very important for constitutional and legal science as its understanding and practical resolution influence the authority of constitutional justice in a state. The dissenting opinion of any judge is their right to express their reasoned disapproval of the rendered decision, formulated in writing and attached to the court decision. Dissenting opinions in constitutional proceedings are of increased importance, because decisions of constitutional courts are aimed to protect law and order in general and are addressed to entire population. The dissenting opinions of constitutional judges contribute to the development of legal science in two aspects. On the one hand, they can contain new ideas, theories and approaches to law, with the help of which new categories and concepts are introduced into scientific discussion. On the other hand, dissenting opinions make often wide references to foreign experience in resolving legal conflicts. In this case, dissenting opinions fit into the framework of comparative legal research and allow taking into account the judicial practice and judicial argumentation of other countries and legal systems. Both aspects contribute to the expansion of the doctrinal base of legal science, pose and solve new problems, increase the need for scientific discussion. This study is based on a formal-dogmatic scientific method, which is aimed at disclosing the true meaning of legal positions of judges presented in dissenting opinions. A systematic method is also used, which allows to identify and classify single areas of scientific knowledge. The author also applies the comparative legal method, which consists in comparing different legal positions in the dissenting opinions of judges. The novelty of the research is in determination of contribution of dissenting opinions of constitutional judges to the development of legal science.

Constitutional litigation. Second edition

2018 ◽  
Author(s):  
Светлана Несмеянова ◽  
Svetlana Nesmeyanova
Keyword(s):  
Public Administration ◽  
Legal Regulation ◽  
The Body ◽  
Judicial Process ◽  
Judicial Control ◽  
Applicable Law ◽  
Judicial Practice ◽  
The Status ◽  
Constitutional Justice ◽  
And Function

In the textbook in accordance with applicable law, through a judicial practice in summary form the main issues of the Russian constitutional judicial control. Describes the problems of its legal regulation, determine the status and function of the body of constitutional justice, as well as the features of the constitutional judicial process. For students, undergraduates, postgraduates and lecturers of law universities and faculties, where he studied constitutional litigation, constitutional justice, constitutional proceedings, constitutional law. The Handbook also will be useful to all those interested in problems of public administration, constitutionalism and human rights.

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