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.

scholarly journals Legal Policy for the Establishment of Special Standards of Social Assistance and Protection for Entities with Special Legal Status

2020 ◽  
Vol 16 (1) ◽  
pp. 39-48
Author(s):  
Artem G. Repev
Keyword(s):  
Social Relations ◽  
Legal Status ◽  
Social Assistance ◽  
Legal Doctrine ◽  
Legal Policy ◽  
Legal Norms ◽  
The Social ◽  
Legal Position ◽  
Special Rules ◽  
The Individual

The author justifies the tendency to increase the role of special legal norms in Russian legislation, established in order to increase the effectiveness of the State’s legal policy on social assistance and protection of subjects with special legal status. The views of scientists on the understanding of legal policy are critically compared, and in particular, the incorporation of the principle of equality in its implementation. Based on the study of legal doctrine, a system of normative legal acts, through a formal-legal approach, the legal position of the individual is inextricably linked to advantages as a form of improvement of the legal position of the individual. As a result, modern special rules of law containing various types of legal advantages (benefits, privileges, immunities and special legal procedures) have been systematized, both for socially vulnerable categories of citizens and for subjects with power. The shortcomings of the modern legal policy to strengthen the legal position of these subjects are argued, including on the example of certain categories of positions in the internal affairs bodies. As a conclusion, the social necessity and the State need for a systematic, scientifically based use of the potential of legal advantages as a means of assisting and protecting the subjects of social relations have been proved.

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.

Informed consent in psychiatric practice: where does the law now stand?

2011 ◽  
Vol 28 (2) ◽  
pp. 86-90
Author(s):  
Peter Leonard
Keyword(s):  
Informed Consent ◽  
Medical Profession ◽  
Case Law ◽  
Point Of View ◽  
Psychiatric Practice ◽  
Mental Health Legislation ◽  
Clinical Scenarios ◽  
Legal Duty ◽  
Legal Position ◽  
Health Legislation

AbstractThere is an established ethical and legal duty upon psychiatrists to obtain informed consent before treating a patient, although some exceptions do apply under Mental Health Legislation. The required standard for informed consent has been the subject of important case law in Ireland and other common law jurisdictions and this has caused some uncertainty for clinicians. The standard of informed consent can be viewed from the point of view of what the medical profession thinks is appropriate, or alternatively from the position of what a patient would reasonably expect to be told. These contrasting approaches are discussed in detail. A recent decision of the Irish Supreme Court establishes the ‘patient-centred’ standard for informed consent as the relevant standard in Irish law. The current legal position on informed consent is discussed in relation to common clinical scenarios in psychiatric practice.

Stone Roots, Digital Leaves: Czech Law against Unfair Competition in the Internet Era

2008 ◽  
Vol 33 (2) ◽  
pp. 155-180 ◽  
Author(s):  
Radim Polčák
Keyword(s):  
Legal System ◽  
Case Law ◽  
Unfair Competition ◽  
The Internet ◽  
Business Practices ◽  
Black Letter ◽  
The Law ◽  
Legislative Changes ◽  
Further Development

AbstractThe law against unfair competition is traditionally understood in countries of the Alpine legal system as extraordinary and unconventional. Unlike other legal disciplines, it does not rely on black-letter law; it is less formal and less legislatively elaborative in detail. Thus, progress and development in this area is not a matter for the legislator but for broad practically-driven doctrinal work connected to contemporary case law. When the Internet brought new opportunities in the development of business ventures, Czech law against unfair competition did not react with legislative changes but by the further development of standard interpretational patterns. In this article, we will briefly describe the grounds as well as recent related developments in the Czech law against unfair competition connected to unfair business practices on the Internet.

Visually Handicapped People and the Law

1987 ◽  
Vol 81 (2) ◽  
pp. 53-58 ◽  
Author(s):  
V.E. Bishop
Keyword(s):  
Final Section ◽  
Case Law ◽  
Legal Definition ◽  
Legal Precedent ◽  
Legal Position ◽  
Handicapped People ◽  
The Law ◽  
Definition Of ◽  
Visually Handicapped

This paper explores the definitional problems of visual handicaps, especially in terms of the legal definition of blindness. A brief history is given of the laws concerning visually handicapped people, and a discussion of case law describes legal precedent. A final section presents suggestions for strengthening the legal position of visually handicapped people in future litigation.

Indian Legal Literature

2008 ◽  
Vol 36 (2) ◽  
pp. 300-302
Author(s):  
Surendra Malik
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Legal Literature ◽  
Statutory Law ◽  
The Law

Indian Legal literature is comprehensive and exhaustive in that it fully encompasses the law prevailing in India in all its varied aspects. Statutory law, case law, and minor portions of customary and religion-based laws are well documented and readily accessible. Fortunately, from the point of view of a foreign reader, nearly all of the law currently prevalent in India is available in English.

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.

scholarly journals ASPECTS OF INSOLVENCY IN CRIMINAL LAW

2015 ◽  
Vol 3 (72) ◽  
pp. 18
Author(s):  
Ivars Kronis
Keyword(s):  
Criminal Law ◽  
Scientific Literature ◽  
Criminal Liability ◽  
Legal Protection ◽  
Case Law ◽  
Behavior Patterns ◽  
Insolvency Law ◽  
Legal Norms ◽  
The Law ◽  
Insolvency Proceedings

The article contains analysis of the legal norms that govern criminal liability for risks posed to insolvency. Based on case law and conclusions made by the law scholars, the preconditions have been studied the presence of which has to be proven in order to enable calling of a person to criminal account for leading to insolvency, filing of a fraudulent application for insolvency proceedings, hindering the insolvency proceedings and breach of the conditions of legal protection. The study enables deepen understanding of the preconditions to application of the law and helps to gain knowledge of criminal legal protection of insolvency and to avoid any behavior patterns that might be interpreted as criminal. The period since enactment of the new Insolvency Law that has changed the concept of insolvency as well as the course of procedure and therefore has affected the application of criminal legal protection has been too short for development of judiciary in this area. The few sources of scientific literature on the regulation of criminal legal protection of insolvency in the Criminal Law had been published before enactment of the new Insolvency Law. Five years of operation of the Insolvency Law is a kind of milestone for updating the issues of criminal legal protection of insolvency and extended assessment of the insolvency regulations in the Criminal Law.

scholarly journals Gribas izteikums kā tiesiska darījuma svarīgākais elements

2021 ◽  
Author(s):  
Laura Kadile ◽  
Keyword(s):  
Subjective Assessment ◽  
Case Law ◽  
Civil Procedure ◽  
Legal Norm ◽  
Legal Doctrine ◽  
Legal Norms ◽  
Legal Consequences

To any uninvolved reader, word combinations like “understand the meaning of one’s action” and “ability to control one’s action” can be confusing. Would the legislator have deliberately created such a broad-ranging combination of philosophical concepts in the text of a legal norm that each factual circumstance could be covered under these concepts and render applicable the legal consequences specified in the legal norm, or, after all, does the legal doctrine and case law already envisage a clear model, according to which the respective legal norm is applied? In the absence of a uniform filling of a legal norm with substance, might such an interpretation permit a purely subjective assessment? For a uniform interpretation and application of legal norms to exist in practice, the interpretation must be based on new fundamental principles and a common legal doctrine, abstaining from the case law and understanding of legal norms that existed before the reform of civil procedure capacity.

scholarly journals Solving Cases of Historical Justice: How Lithuanians Defended Their Tribe

Teisė ◽  
2021 ◽  
Vol 121 ◽  
pp. 62-79
Author(s):  
Giedrė Lastauskienė
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Social Changes ◽  
Legal Doctrine ◽  
Factors Influencing ◽  
Historical Justice ◽  
The Law ◽  
Resistance Movement

The article raises the problem of the distinction between the law and laws arising from changes in legal order or other fundamental social changes. The legal doctrine and case-law relating to cases of historical (transit) justice are examined in the context of the examples of Germany and Lithuania. Under investigation is the model of punishment of persons who collaborated with Soviet occupiers and contributed to the elimination of participants of the resistance movement, implemented in Lithuania, revealing the factors influencing the change in this model.

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