Development and Peculiarities of Compensation Function Formation in the Russian Law

2015 ◽  
Vol 3 (10) ◽  
pp. 0-0
Author(s):  
Антон Тараканов ◽  
Anton Tarakanov
Keyword(s):  
Significant Development ◽  
Legal Norms ◽  
Russian State ◽  
Ancient Law ◽  
Full Compensation ◽  
Compensation Standard ◽  
Russian Law ◽  
The Law ◽  
Further Development ◽  
Compensation Function

Compensation function of rules of law is considered at various stages of formation and development of the Russian state and the Law. The legal norms in the Ancient Russian law which expressed compensation function are identified and analyzed. In the Ancient law the opportunity to protect economic as well as moral benefits was fixed. Standards of Russian Truth performed the compensatory function. In the study of the penal system of that period the elements of liability and compensation of non-pecuniary damage are identified. It is suggested that modern legal institutions of compensation for material and moral (non-property) damage originate from the earliest written records of the ancient Slavs. The improvement and strengthening of the compensation standard functions contained in the Code of Law in 1497 and 1550 are analyzed. There is a significant development of compensatory function in the rules the Conciliar Code of 1649. The author considers the further development of the compensation function of the law in connection with the adoption of the Law "On conscientious possession" 1851. The legislation of the Soviet state which was used exclusively for compensation for material damage is analyzed. There is a growing function of the compensation law in connection with its reform of 1990 and the construction of all branches of the law on the principle of full compensation for losses.

Practical significance of law constitutional principles

2020 ◽  
pp. 435-441
Author(s):  
Aleksandr Paramonov
Keyword(s):  
Public Relations ◽  
Legal Regulation ◽  
Practical Significance ◽  
Legal Consciousness ◽  
Direct Role ◽  
Positive Role ◽  
Legal Norms ◽  
Russian Law ◽  
The Law ◽  
Basic Ideas

We consider the constitutional principles of Russian law in the framework of positivist legal consciousness. We note the highest value of the law constitutional principles, as the basic ideas that underlie individual branches of law and all legal regulation. We focus on the practical significance of the constitutional principles of Russian law. We point out that in order to overcome defects in the legal consciousness of the population, it is advisable to duplicate the law principles that enshrined in the Constitution of the Russian Federation and in sectoral legislation. We emphasize that the practical significance of the law constitutional principles is manifested not only in their direct role in the legal regulation of public relations, but also in the fact that in judicial practice they can be used in the case of applying the analogy of law and the analogy of legislation. We indicate that this legal and technical tool is used to fill gaps in legal regulation. It is used in many branches of Russian law: civil, civil procedural, arbitration procedural, ad-ministrative procedural, family and others. Thus, the study shows the positive role of law constitutional principles in decision-making by a law enforcer in the absence of sectoral legal norms applicable in a particular situation.

scholarly journals Operation of Legal Deposit System and the Ways of Its Improvement

2018 ◽  
Vol 67 (6) ◽  
pp. 607-615
Author(s):  
Nikolay A. Sakharov
Keyword(s):  
Scientific Information ◽  
Federal Law ◽  
Electronic Library ◽  
Electronic Form ◽  
Russian State ◽  
The Law ◽  
State Library ◽  
Academy Of Sciences ◽  
Further Development ◽  
Timely Delivery

Legal deposit (LD) system, which remains to be the main source of formation of the national library-information stock of documents of the Russian Federation, needs further development and improvement. The purpose of this article is to identify the main problems faced by the modern system of LD in the segment of Federal legal deposit copy of printed publications and to consider various solutions. One of the main problems is incomplete delivery (or non-delivery) by manufacturers of the documents of printed publications issued by them, especially in electronic form, although this is required by the current version of the Federal law “On Legal Deposit copy of documents”. Instead of 16 copies, set by the Law, many publishers deliver to the Russian Book Chamber (RBC, ITAR-TASS branch) a smaller number of them, up to one copy. Situation with the delivery of publications produced in small runs is particularly alarming, as well as there are certain difficulties with the delivery of periodicals, including newspapers.General provisions of the Law “On Legal Deposit copy of documents” also apply to the copies of printed publications in electronic form. Their inclusion in the LD has led to significant changes for both document producers and LD recipient organizations. In 2017, only 518 of 5775 Russian publishers sent to the RBC the LD copies of printed publications in electronic form. The total number of electronic copies sent amounted to 24.5 thousand (about 21% of all publications issued in the country in traditional printed form).There are different ways to solve the arisen problems. The libraries-recipient constantly put the question on the need to strengthen the responsibility of manufacturers of documents for the incomplete or undelivered LD. Currently, the Russian State Library (RSL) has developed and published the “Declaration of the RSL on the work with Legal Deposit copy of the printed publication in electronic form”, which explains the most important principles of work with LD of the RSL as the operator of the National Electronic Library. The article considers a number of proposals on improvement of the LD system, in particular, of the RBC, the Library of the Russian Academy of Sciences, the Fundamental Library of the Institute of Scientific Information on Social Sciences. The author concludes that it is necessary to take effective measures to ensure the complete and timely delivery of documents from their manufacturers and stepwise inclusion in the LD of new documents that exist only in the electronic form.

scholarly journals Qualified Legislator’s Silence: Problem of Recognition

2019 ◽  
Vol 86 (3) ◽  
pp. 22-31
Author(s):  
Ю. І. Чалий
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Legal Doctrine ◽  
Suggested Approach ◽  
Legal Policy ◽  
Legal Norms ◽  
Major Shortcoming ◽  
Legal Position ◽  
The Law ◽  
Further Development

The problem of developing the ways of recognition of the qualified silence of the legislator has been studied. It has been stated that the “qualified silence of the legislator” is underdeveloped category of law, especially regarding the ways of recognizing such specific legislative silence within the norms of law. This problem has become more urgent due to the revival of case law in Ukraine on the application of the analogy of law and the analogy of legislation. While applying these techniques, overcoming the gaps of civil law, the courts often identify the relevant gaps of the legislation with the qualified silence of the legislator, which is a major shortcoming. Solution of this problem will allow the courts to better identify the qualified silence of the legislator in the law norms. One of the methodological approaches in solving the problem of recognition of the legislator’s qualified silence and the gaps of the legislation is the extension of the relevant research tools. In contrast to the legal position existing in the legal doctrine, the author of the article has critically assessed the ability of systematic interpretation of the law norms to be a self-sufficient method of revealing the legislator’s qualified silence. In order to recognize the true qualified silence of the legislator, the author has offered to concentrate on explaining the legal policy that may be manifested in one or other cases of the legislator’s silent expression of will. At the same time, systematic, historical or doctrinal interpretation of legislation is of relative importance to the need for clarifying legal policy. From the point of view of determining the degree of scientific novelty, the suggested approach has the nature of further development of doctrinal provisions. The author has noted on the necessity of further elaboration of the studied problems, in particular, in determining the location of each of the ways of recognizing the qualified silence of the legislator within the system of methods of interpretation of legal norms.

STUDI KASUS PENETAPAN KEMBALI TARIF DAN/ATAU NILAI PABEAN (SPKTNP) OLEH DIREKTUR JENDERAL BEA DAN CUKAI: TINJAUAN PUTUSAN PENINJAUAN KEMBALI MAHKAMAH AGUNG RI

2018 ◽  
Vol 2 (2) ◽  
Author(s):  
Akhmad Firdiansyah ◽  
Wachid Hasyim ◽  
Yonathan Agung Pahlevi
Keyword(s):  
Qualitative Analysis ◽  
Supreme Court ◽  
Director General ◽  
Import Duty ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Law

ABSTRACT In accordance with the mandate of Article 23A of the 1945 Constitution, all tax stipulations must be based on the law. To carry out the mandate in accordance with Article 17 of the Customs Law Number 17 of 2006, the Director General of Customs and Excise is given the attributive authority to issue reassignment letter on Customs Tariff and / or Value for the calculation of import duty within two years starting from the date of customs notification carried out through a mechanism of audit or re-research. To examine the application of these legal norms, there are currently Supreme Court (MA) Judgment (PK) decisions that accept PK applications from PK applicants and question the legality of issuing SPKTNP by the Director General of BC. This study uses explosive qualitative analysis to analyze the issuance of SPKTNP by the Director General of BC. The results of this study indicate that the Supreme Court is of the view that the issuance of SPKTNP by the Director General of BC is a legal defect, while DGCE considers the issuance of SPKTNP by the Director General of BC according to the provisions.Key words: official decision, reassignment letter, DCGE  ABSTRAKSesuai amanah Pasal 23A Undang-Undang Dasar 1945 Segala penetapan pajak harus berdasar undang-undang. Untuk menjalankan amanah tersebut sesuai Pasal 17 Undang-Undang Kepabeanan Nomor 17 Tahun 2006 Direktur Jenderal Bea dan Cukai (Dirjen BC) diberikan kewenangan atributif untuk menerbitkan Surat Penetapan Kembali Tarif dan/atau Nilai Pabean (SPKTNP) guna penghitungan bea masuk dalam jangka waktu dua tahun terhitung sejak tanggal pemberitahuan pabean yang dilakukan melalui mekanisme audit atau penelitian ulang. Untuk meneliti penerapan norma hukum tersebut dewasa ini terdapat putusan Peninjauan Kembali (PK) Mahkamah Agung (MA) yang menerima permohonan PK dari pemohon PK dan mempermasalahkan legalitas penerbitan SPKTNP oleh Dirjen BC. Penelitian ini mengunakan analisis kualitatif eksplotarif untuk menganalisis penerbitan SPKTNP oleh Dirjen BC. Hasil penelitian ini menunjukkan bahwa MA berpandangan penerbitan SPKTNP oleh Dirjen BC adalah cacat hukum, sedangkan DJBC beranggapan penerbitan SPKTNP oleh Dirjen BC telah sesuai ketentuan.Kata Kunci: penetapan pejabat, SPKTNP, Direktur Jenderal Bea dan Cukai.

Common Interests of Humankind and the International Regulation of the Use of Force

2018 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Use Of Force ◽  
State Responsibility ◽  
International Regulation ◽  
Philosophical Foundations ◽  
Un Security Council ◽  
Common Interests ◽  
The Law ◽  
Mere Existence ◽  
Further Development

The chapter discusses the philosophical foundations of the current regulation of the use of force. The chapter argues that, in correspondence with the emergence of a sphere of substantive rules protecting common interests of humankind, international law is also gradually developing a system of protection against egregious breaches of these interests. This conclusion is reached through an analysis of the law and practice governing the action of the UN Security Council as well as the law of state responsibility concerning individual and collective reactions to serious breaches of common interests. This system is based on positive obligations imposed upon individual states as well as UN organs, and it appears to be still rudimentary and inefficient. However, the chapter suggests that the mere existence of this system, these shortcomings notwithstanding, has the effect of promoting the further development of the law in search for more appropriate mechanisms of protection.

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

Comparative analysis of normative legal acts on the execution of criminal penalties in the initial stage of the formation of the Russian state for the implementation of equality principle before the law

2021 ◽  
pp. 752-765
Author(s):  
Nikolai S. Kovalev
Keyword(s):  
Legal Status ◽  
Legal Regulation ◽  
Equal Rights ◽  
Scientific Methods ◽  
Soviet State ◽  
Labor Legislation ◽  
Initial Stage ◽  
Russian State ◽  
General Scientific ◽  
The Law

The object of the study is the implementation of equality principle before the law by fixing equal rights and obligations of prisoners in the normative legal acts of the Soviet state. The subject of research: provisions of normative legal acts of the Provisional Government, departmental normative acts of the People’s Commissariat of Justice of the RSFSR and People’s Commissariat for Internal Affairs of the RSFSR. As a methodological basis for cognition, general scientific methods of analysis, synthesis, induction, de-duction are used, which allow us to investigate aspects of legal reality directly related to the implementation of the principles of penal enforcement (correctional labor) legislation, to formulate reasonable conclusions. Private scientific methods: formal-legal and comparative-legal – allow us to identify differences in the legal regulation of the legal status of prisoners in the pre-war period. As a result of the conducted research, we make a reasonable conclusion that the principle of equality before the law, although it was not enshrined in specific norms regulating the procedure for the execution and serving of imprisonment, however, was manifested in the provisions regulating the legal status of persons deprived of liberty. The notions of equality before the law of both citizens in general and prisoners in particular were not the fundamental basis of the legislation of the Soviet State. Prisoners were differentiated on the basis of social affiliation, due to: 1) the principle of class approach proclaimed by the Constitution of the RSFSR; 2) the functioning of two systems of places of deprivation of liberty for prisoners with different social status; 3) regulating the execution (serving) of sentences in the form of deprivation of liberty by various regulatory legal acts.

Zur Frage der doktrinellen Auslegung des Artikels 61 Pkt. 3 der Verfassung der Republik Kasachstan

2021 ◽  
Vol 67 (2) ◽  
pp. 133-144
Author(s):  
Ermek B. Abdrasulov
Keyword(s):  
Public Relations ◽  
Social Relations ◽  
Legal Regulation ◽  
Legislative Process ◽  
Legal Norms ◽  
The Law ◽  
The Republic ◽  
Definition Of ◽  
The Relationship ◽  
National Business

This article examines the issues of differentiation of legislative and subordinate regulation of public relations. It is noted that in the process of law-making activities, including the legislative process, practical questions often arise about the competence of various state bodies to establish various legal norms and rules. These issues are related to the need to establish a clear legal meaning of the constitutional norms devoted to the definition of the subject of regulation of laws. In particular, there is a need to clarify the provisions of paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan in terms of the concepts "the most important public relations", "all other relations", "subsidiary legislation", as well as to establish the relationship between these concepts. Interpretation is also required by the provisions of p. 4 of Article 61 of the Constitution in terms of clarifying the question of whether the conclusion follows from mentioned provisions that all possible social relations in the Republic of Kazakhstan are subject to legal regulation, including those that are subject to other social and technical regulators (morality, national, business and professional traditions and customs, religion, standards, technical regulations, etc.). Answering the questions raised, the author emphasizes that the law and bylaws, as a rule, constitute a single system of legislation, performing the functions of primary and secondary acts. However, the secondary nature of subsidiary legislation does not mean that they regulate "unimportant" public relations. The law is essentially aimed at regulating all important social relations.

scholarly journals Hvem var opænbarligh gen guth i Jyske Lovs Fortale? Et studie i Lovbogens teksthistorie

2016 ◽  
Vol 52 ◽  
Author(s):  
Michael H. Gelting
Keyword(s):  
Fifteenth Century ◽  
Canon Law ◽  
Original Text ◽  
Standard Text ◽  
History Of ◽  
The Will ◽  
The Law ◽  
Further Development ◽  
Political Realities ◽  
Made In

One sentence in the Prologue of the Law of Jutland (1241) has caused much scholarlydiscussion since the nineteenth century. Did it say that “the law which the king givesand the land adopts, he [i.e. the king] may not change or abolish without the consentof the land, unless he [i.e. the king] is manifestly contrary to God” – or “unless it [i.e.the law] is manifestly contrary to God”? In this article it is argued that scholarly conjectures about the original sense of the text at this point have paid insufficient attentionto the textual history of the law-book.On the basis of Per Andersen’s recent study of the early manuscripts of the Lawof Jutland, it is shown that the two earliest surviving manuscripts both have a readingthat leaves little doubt that the original text stated that the king could not change thelaw without the consent of the land unless the law was manifestly contrary to God. Theequivocal reading that has caused the scholarly controversy was introduced by a conservativerevision of the law-book (known as the AB text), which is likely to have originatedin the aftermath of the great charter of 1282, which sealed the defeat of the jurisdictionalpretensions of King Erik V. A more radical reading, leaving no doubt that the kingwould be acting contrary to God in changing the law without consent, occurs in an earlyfourteenth-century manuscript and sporadically throughout the fifteenth century, butit never became the generally accepted text. On the contrary, an official revision of thelaw-book (the I text), probably from the first decade of the fourteenth century, sought toeliminate the ambiguity by adding “and he may still not do it against the will of the land”,thus making it clear that it was the law that might be contrary to God.Due to the collapse of the Danish monarchy in the second quarter of the fourteenthcentury, the I text never superseded the AB text. The two versions coexistedthroughout the fourteenth and fifteenth centuries and soon produced a number ofhybrid versions. One of these gained particular importance, since it was the text thatwas used for the first printed editions of the Law of Jutland in 1504 and 1508. Thus itbecame the standard text of the law-book in the sixteenth century. The early printededitions also included the medieval Latin translation of the Law of Jutland and theLatin glosses to the text. The glosses are known to be the work of Knud Mikkelsen,bishop of Viborg from 1451 to 1478. Based on a close comparison of the three texts, itis argued here that Bishop Knud was also the author of the revised Danish and Latintexts of the law-book that are included in the early printed editions, and that the wholework was probably finished in or shortly after 1466. Bishop Knud included the I text’saddition to the sentence about the king’s legislative powers.An effort to distribute Bishop Knud’s work as a new authoritative text seems tohave been made in 1488, but rather than replacing the earlier versions of the Lawof Jutland, this effort appears to have triggered a spate of new versions of the medievaltext, each of them based upon critical collation of several different manuscripts.In some of these new versions, a further development in the sentence on the king’slegislative power brought the sentence in line with the political realities of the late fifteenthcentury. Instead of having “he” [i.e. the king] as the agent of legal change, theyattribute the initiative to the indefinite personal pronoun man: at the time, any suchinitiative would require the agreement of the Council of the Realm.Only the printing press brought this phase of creative confusion to an end in theearly sixteenth century.Finally, it is argued that the present article’s interpretation of the original senseof this particular passage in the Prologue is in accordance with the nature of Danishlegislation in the period from c.1170 to the 1240s, when most major legislation happenedin response to papal decretals and changes in canon law.

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