Legal Norm
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Author(s):  
Aldar Munkozhargalovich Chirninov

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.


2021 ◽  
Vol 3 (2) ◽  
pp. 135-142
Author(s):  
Siti Nuraidah ◽  
Ani Yumarni ◽  
Nurwati

Indigenous peoples are legal subjects recognized for their traditional rights and other rights by the 1945 Constitution and other laws and regulations. Sunda Wiwitan is understood as the original Sundanese religion or early Sundanese which is the naming of the belief system used by people of Sundanese descent who still confirm the spiritual teachings of the Sundanese ancestors. Humans are legal subjects, bearers of rights and obligations from the moment of birth and end when humans die. From the event of a person's death, there are legal consequences, namely how to resolve the rights and obligations of the person's death which is regulated by inheritance law. This is an empirical juridical method or non-doctrinal study, looking at the validity of a statutory regulation and legal norm originating from religion, which lives and develops in a group of indigenous peoples. The purpose of this study was to determine and examine the acculturation of customary inheritance law and Islamic inheritance law in the Sunda Wiwitan community and to determine the form of application of Islamic inheritance law to the Sunda Wiwitan indigenous people in Kasepuhan Ciptagelar with Kampung Urug. The results show that the acculturation of the application of inheritance law to the Sunda Wiwitan community, Kasepuhan Ciptagelar and Kampung Urug regarding the application of Islamic inheritance law is that Islamic inheritance law is carried out by prioritizing deliberation and consensus in the family of the heirs of the Sunda Wiwitan Indigenous Peoples. followers of Islam. As for customary law, the Sunda Wiwitan people make it a norm and culture that is carried out in social life.


Author(s):  
S.E. Fedik

The modern concept of reforming procedural legislation in Ukraine has set before law enforcement and law enforcement agencies a number of tasks for a smooth transition from the normative-act to the precedent method of law enforcement. Moreover, such a position is directly enshrined in the procedural legislation of Ukraine, in particular in Part 4 of Art. 10 of the Civil Procedure Code of Ukraine, which states: - "The Court applies in cases the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its protocols, approved by the Verkhovna Rada of Ukraine, and the case law of the European Court of Human Rights as a source of law." [1]. It is this article of the Civil Procedure Code of Ukraine that the legislator indirectly obliges the judicial authorities of Ukraine to use both norms of international law (represented by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its protocols) and court decisions of the European Court. on human rights, which are expressed in the practice of this court in the consideration of cases by this international judicial institution. The very provision of the above-mentioned article of the Civil Procedure Code of Ukraine declares the actual transition from the rules of normative-legal procedure of law application to the principles of precedent legal system, where the source of law is not only normative-legal act but also court decision. An important condition for the correct application of a rule of law or a court decision is the correct interpretation of a legal norm, or a whole normative legal act, as well as judicial precedent. Interpretation of legal norms involves a combination of objective and subjective, and depending on the purposes of interpretation in this process, respectively, its two stages are correlated - clarification and explanation. And if the process of interpretation is aimed only at the interpreter's understanding of the content of the legal norm, then clarification is an independent process of cognition. When the goal is to bring the content of the legal norm to third parties, the clarification and explanation are stages (stages) of a single, inseparable process. This process is inherent in all types of legal activity - lawmaking, law enforcement, law enforcement, systematization and legal education, and in a legal society the interpretation of legal norms is a stabilizing factor in the process of regulating social relations, enhances legal norms, strengthens legality, protects human and civil rights [2, P. 5-6].


Author(s):  
O.V. Ilkiv

The article is devoted to the study of the grounds for the cessation of real rights to foreign things in order to further develop the theoretical foundations for the settlement of the transition of real rights.  The foundations of the emergence of legal relations are analyzed, the elements of which are real rights to foreign things, and the legal facts of their termination are compared.  The article describes the will of the subjects of real relations on termination of real rights as a dispositive factor, as well as comparative orders relating to circumstances that are not based on a contractual basis.  The contract may be a legal fact that is the basis of the emergence of obligatory and real legal relations.  The grounds for the emergence and termination of real relations are largely dependent on the peculiarities of the object, the real relations and the purposes of their use, where depending on the type of real rights to foreign things will be determined by their legal regime.  The legal relationship that arises on the basis of the contract is mixed in nature, covering the obligatory and real legal nature of its components.  Investigated that the administrative act of the authority of power can not act as a direct basis for the termination of real relations that arose on the basis of the contract without its termination.  Therefore, the administrative act recognize the element of the legal composition, which ends with the termination of contractual relations.  The refusal to use someone else's property should be considered as a subjective real right of any subject of real rights, which is given this civil law.  The author came to the conclusion that in the event of the occurrence of the circumstance provided for a hypothesis of the legal norm, it can be considered as a legal fact, which is associated with the termination of real relations.  The legal consequences of the mechanism of law accession are the appointment of certain rights and responsibilities of participants in civil legal relations or legal relations as a whole.  In view of this, in the work it is proposed to improve the classification division of the grounds of termination of legal relations with strangers.


2021 ◽  
Vol 16 (7) ◽  
pp. 23-31
Author(s):  
A. V. Kostruba

The mechanism of legal regulation of relations is considered as a system of legal means, methods and forms with the help of which social relations are regulated. The author argues about the variability of the normative element of the mechanism under consideration, since it is not always possible to include the multiplicity of parameters that form its content and essence exclusively into the content of a legal norm. It is argued that the rule of law is not the main element of the mechanism of legal regulation through which relations between members of the society are being regulated. The corresponding regulatory influence is ensured with the help of individual regulators that have a different legal nature due to their limited, personalized obligatoriness. The author proves that, along with a legal norm, an individual normative prescription acts as a legal means of ensuring the operation of the mechanism of legal regulation of social relations, and its form is represented by alter-normative regulators (contract, custom). In addition, along with normative and alter-normative regulators, super-normative (principles of law) and quasi-normative (judicial acts) are highlighted.


Author(s):  
Dyah Retno Wahyuningrum ◽  
Suhariningsih Suhariningsih ◽  
Rachmi Sulistyorini

Regulations for the minimum age for marriage and dispensation in the national marriage law have changes because they are not in accordance with the development of society. This study proposes to analyze and find criteria for limiting dispensation to marriage that contains vagueness that can lead to legal uncertainty and juridical implications of norm blur related to marriage dispensation regulation. The research method used in this study is normative juridical legal research, the approach method used is prescription legislation and conceptual and case approaches. From the results of the research and discussion it can be concluded first: Criteria for limiting dispensation to marriage with very urgent reasons accompanied by supporting evidence according to Article 7 paragraph (2) of the Marriage Law is a vague legal norm, even though the intention of the legislators is reflected in the Academic Paper, the very urgent reason is a condition that the prospective bride is pregnant and has been proven by a certificate from a health worker. Meanwhile, the formulation of the norm of Article 7 paragraph (2) does not mention pregnancy as a requirement. Second: The juridical implication of the vagueness of norms regarding dispensation of marriages results in the dispensation of court rulings.


Al-Qalam ◽  
2021 ◽  
Vol 27 (1) ◽  
pp. 85
Author(s):  
Abdul Rahman ◽  
Anwar Sadat

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>The enactment of Law No. 35 of 2014 concerning Child Protection is intended to protect children and guarantee their rights to live, grow, develop, and participate optimally following human dignity and get protection from violence and discrimination. It could be achieved through increasing awareness of the rights and obligations and the responsibility of the involved parties, especially parents because they are the first and foremost in contact with children. In the context of the Law socialization, research is needed to find an appropriate and effective socialization model especially for women (mothers) through religious-social activities. One of them is majelis ta'lim program. This research used a normative-empirical research type. Normative research was used through the interpretation of grammatical and authentic legal methods. Empirical research was conducted by a teleological interpretation method to know the extent of the legal norm according to the community’s attitudes, behaviors, and compliance. Data were collected through the study of literature and empirical studies using interview guidelines and questionnaires. The research results showed that the developed socialization model could solve the most fundamental and urgent literature and the wider community’s interests. In protecting the community-based program, the issue is not merely children in conflict with the law. It includes a larger unit of interaction, such as parents, family, peers, environment, and wider social institutions</span></p></div></div></div>


2021 ◽  
pp. 68-88
Author(s):  
A. E. Shastitko ◽  
K. A. Ionkina

The paper defines the features of the collective dominance institute in Russia as well as the relation between collective dominance and oligopoly in the spheres of law and economic theory. The article evaluates the grounds and consequences of the collective dominance legal norm application; it suggests an approach to examining the relation between effects and expected results of this legal norm application and outlines the potential ways to harmonize the best international practices of the collective dominance norm application with the existing economic standards of product market analysis for the purpose of competition law enforcement. Results of the oligopoly theory and the Russian version of collective dominance institution key elements comparison show: the collective dominance institution concept is inadequately applied to identify individual abuse of dominant position due to possible law enforcement errors. The Russian version of collective dominance institution reflects one fundamental tendency intrinsic to Russian antitrust: examined more closely, law enforcement, which is de jure aimed at protecting competition, appears to be economic regulation, which de facto can lead to competition restriction. One of the possible structural alternatives for the collective dominance institution reforming is based on presumption of the need to analyze the joint impact exerted by a group of undertakings on the market.


Author(s):  
S.B. Buletsa

The development of medical science, the improvement of the living standards of the population and the establishment of democratic institutions contribute to the increase of the requirements for the activity of medical workers and to the increase of cases of bringing them to justice for improper performance of professional duties. Civil law distinguishes between types of liability according to different criteria. Thus, on the basis of the rights and obligations, for the violation of which liability is established, it is divided into contractual and non-contractual. Contractual and non-contractual civil liability have some common generic features. Liability in medical activities arises in case of violation of rights and responsibilities. The activities of health professionals (doctors, nurses, support staff) in any case, aimed at the patient, he receives medical care, taking into account his health, physical condition, and aim at positive changes in the patient's health. In the case of contractual liability, the terms of the contract are violated, in the case of non-contractual (tort) liability between the violator and the victim before the violation there were absolute legal relations. The behavior of the offender must be active, ie passive behavior is not the basis for tortious liability, but only if there are special rules of law that provide only for active behavior (doctors). Tort liability damages the general prohibition, where potentially harmful conduct is not clearly defined by law, as any active conduct is illegal and associated with the occurrence of the damage. Contractual liability will arise in compliance with the terms of liability, especially the causal link, ie the objectively existing link between the wrongful conduct of the debtor and the adverse consequences that have occurred. The classic features of the contract, of course, are more clearly manifested in private medical services (eg, dentists, private medical institutions), there are contractual relationships. Liability in the field of medical activity is a type of legal liability, ie the implementation of a sanction of a legal norm, which by its nature is a means of coercion, is accompanied by condemnation by the state and is expressed in imposing on the perpetrator of violation of intangible consequences of a material nature.


Author(s):  
Sabine Wehnert ◽  
Viju Sudhi ◽  
Shipra Dureja ◽  
Libin Kutty ◽  
Saijal Shahania ◽  
...  
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