Literatura académica sobre el tema "Norme civilistiche"

La Costituzione italiana rappresenta un unicum dal punto di vista degli or-dinamenti passati e vigenti, giacché è la sola a porre a suo fondamento il concetto di “lavo-ro”. Tale nozione, nell’ottica della Carta, assurge a diritto, dovere e principio di natura cos-tituzionale. Va sottolineato che la relazione di impiego che soggiace a questa stessa nozione è quella che le norme civilistiche definiscono come subordinata. L’intenzione del Costituente era quella di conciliare la subordinazione del lavoratore con la libertà del cittadino. Per questo, la Costituzione introduce dei “contrappesi” volti a tutelare quegli individui che, sprovvisti di mezzi di produzione, per vivere dignitosamente sono vincolati al potere diretti-vo di un datore di lavoro. Sebbene molte disposizioni costituzionali non siano state piena-mente attuate, la Costituzione ha comunque assolto la funzione di migliorare le condizioni dei lavoratori italiani. La globalizzazione e le cicliche recessioni del mercato internazionale hanno messo in crisi l’anima lavoristica della Costituzione, esigendo il sacrificio di numerose garanzie. Nonostante oggi si registrino alcune timide migliorie dei livelli occupazionali, è dif-ficile sperare in una restaurazione completa di quelle stesse tutele di cui hanno goduto gene-razioni passate di lavoratori italiani.

The subject of the research is the additional powers of the Chairman of the Supreme Court of the Russian Federation in relation to cassation and supervisory complaints.The purpose of the article is to substantiate the necessity or redundancy of certain additional powers of the Chairman of the Russian Supreme Court taking into account the nature of such powers and the conditions for their application.The methodology. Analysis and synthesis, dialectical method as well as formal legal interpretation of Russian legislative acts and judicial practice of Russian Supreme Court were used.The main results. Since the transformation of the three-tier supervisory proceedings into a system of two cassation and one supervisory instance, as well as the liquidation of the Supreme Arbitration Court, the powers of the Chairman of the Supreme Court of the Russian Federation have spread to a fairly wide range of relations that allow influencing the movement of the case in the cassation and supervisory instance, and on itself initiation of a case in a supervisory instance. Moreover, such activities are far from always regulated by the norms of the law.The Chairman of the Supreme Court of the Russian Federation (or his deputy) currently has leverage over the possibility of considering a case in the cassation instance of the Supreme Court of the Russian Federation (Judicial Collegium of the Supreme Court) and in the supervisory instance (Presidium of the Supreme Court). These possibilities are called control and substitute in the article. Control powers should include: 1) regulation of key deadlines in cassation and supervisory proceedings; 2) interference in the procedure for filtering complaints. The procedure and conditions for the use of these powers are not regulated in the procedural codes. Having such powers in relation to procedural terms, the President of the Supreme Court actually influences the very possibility of initiating a case in a court of cassation or supervisory instance, as well as the duration (and, accordingly, the quality) of the examination of the complaint. The intervention of the Chairman of the Supreme Court of the Russian Federation in the procedure for filtering complaints has a clearly pronounced discretionary nature, moreover, it is selective. It would not be superfluous to point out that such as "order" in itself creates conditions for its abuse both by the participants in the case and by the courts. The substitute authority is the right of the Chairman of the Supreme Court to initiate supervisory proceedings on his own initiative, contrary to the basic rule of civil proceedings based on the principle of discretion (the case is initiated by the person whose rights have been violated). Supervisory proceedings are currently intended to appeal against judicial acts adopted by the Supreme Court of the Russian Federation itself when considering cases in the first, appeal and cassation instances. However, among the objects of appeal there are also acts of the Judicial Collegium of the Supreme Court, applications to which are possible with complaints against acts of any lower courts, with some restrictions on the decisions of justices of the peace (Article 390.4 of the Civil Procedure Code; Article 291.1 of the Arbitration Procedure Court). In this regard, the supervisory authority must continue to be viewed as the final link in the system of reviewing judicial acts. However, the system for reviewing judicial acts is very contradictory. On the one hand, there are a number of strict rules that cut off certain types of judicial acts from appeal; filtering complaints in the second cassation and supervision; establishing special rules for the jurisdiction of complaints. On the other hand, it is possible not to comply with these strict rules and directly contact the Chairman of the Supreme Court of the Russian Federation.This extraordinary power of the Chairman of the Supreme Court of the Russian Federation has been preserved, precisely because the Russian legislator firmly and consistently adheres to the conviction that it is necessary to leave at least one official who is not a party to the case the right to initiate an audit of a judicial act.Conclusions. The extraordinary powers of the Chairman of the Supreme Court are of an extra-procedural nature, at best they are based on the rules of record keeping (instead of the law), are selective and opaque.

Theoretical ideas about the balance between private law and public law in the activities of autonomous institutions today are not obvious, which often generates biased scientific judgments on many relevant issues. In the doctrine, the issue concerning the search for the optimal balance between public and private legal aspects and their correlation in relation to autonomous institutions has not actually been raised and has not been resolved. The ability to independently provide property for their current activities through participation in civil law relations, as a rule, is studied separately from the norms of public law, creating an unmistakable scientific idea of the exclusively civilistic content of the normative rules that determine the legal personality of autonomous institutions. The author addresses the problem of dualism in determining their status, making a theoretical attempt to coordinate public and private law in this area.In the course of the study, the author demonstrates systemic interweaving of private and public principles when analyzing the status of autonomous institutions. At the same time, there is a lack of well-established theoretical guidelines for the study of relations in which the analyzed entities participate. This, according to the author, is the main reason for the negative nature of scientific research in recent years devoted to the study of such a subject of legal relations.At the same time, realizing that the purpose of any research is to detect advanced and progressive problems, the author sees it necessary to take into account the dichotomy and convergence of the provisions of public and private law in the subsequent analysis and study of such a subject of legal relations as an autonomous institution.

The relevance of the research is based on the heated discussion that has unfolded in recent years in connection with changes of the current legislation on legal regime of animals as objects of civil rights as well as awkward suggestions aimed at essentially reshaping the civilistic concept of animals and establishing their special legal status by recognizing them, albeit with some restrictions, as subjects of legal rights. The purpose is to analyze the genesis of animals legislation, including but not limited to international legislation, and to reveal the social significance of norms governing the conditions and procedure for acquisition of animals and the limits and principles of their treatment. The article also aims at voicing the authors position on participation in the civil circulation of animals. Research methods applied in the work are as follows: formal-legal, dialectical unity, system analysis, interpretation, modeling, and forecasting. The results of the study (conclusions) are realized in proposing to supplement Art. 128 of the Civil Code of the Russian Federation with a new term property as basic in relation to terms things, other property, and property rights. It is also recommended to expand the range of objects of civil rights by identifying animals as an independent object, clarify the revision of Art. 137 of the Civil Code, presenting in it the definition of an animal as an object of civil rights and reflecting the main criterion for classifying animals (turnover). In addition, a judgment was made on changes in Russian legislation introduced in 2020, including the Law On the Animal World, allowing amateur and sports hunting of animals in semi-free conditions and artificially created habitat. This law clearly contradicts international agreements that allow hunting (capture) of animals only for the maintenance of human livelihood.

There is no mention of a forensic experiment in the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation. But the study of judicial practice in civil cases shows a very frequent use of experimental research by the court. Through the prism of the norms of the current legislation and the established law enforcement practice, the use of experimental research in the civil law process is analyzed, the fundamental basis for the legal regulation of the judicial experiment is determined. One of the research methods by which an expert comes to certain conclusions is an expert experiment, the results of the experiment in this case are mediated by the expert’s conclusion. However, experimental studies can also be carried out under the auspices of the court directly in the court session. Examples of such use from current judicial practice are given. Based on the approaches existing in science, a theoretical conclusion is made about the dual nature of the phenomenon of evidentiary activity under consideration: forensic and forensic experiments are ways (methods) of research (verification) of forensic evidence: as personal — explanations (testimony, conclusions, consultations) of the subjects of evidentiary activity, as well as substantive evidence. At the same time, experimental studies also act as ways (methods) of forming such forensic evidence as an expert opinion. For civil (arbitration) cases, it is necessary to create a scientifically based legal model for conducting a judicial experiment, built on the principles of civilistic competition and optionality. This is supported by the experience of using the judicial experiment both in Russian judicial practice and in the post-Soviet legal space (in particular, the experience of using experimental studies in the Republic of Belarus).

The problems of a claim and a claim as a form of protection for a violated right have a fundamental significance not only in the traditional sense — for the civilistic areas of law - but, especially, for the theory of criminal, criminal procedure and penitentiary law. Economic aspects make it possible to consider a claim to be a preventative instrument of influencing lawbreakers. Procedural aspects of a claim show that it is effective for the observance of the principle of procedural economy. The criminological aspects of a claim lead to the conclusion regarding the necessity of taking into consideration the connections between different areas of law. The author proves that the value of criminal punishment should not be determined independently, but rather depending on the norms, institutions of criminal law and taking into consideration their interconnection and interdependence with the institutions of other areas of law. Such an approach makes it possible to conclude that the institute of claim, which is significant for interactions between different law areas, holds a special place in the legal sphere and acts as an important element of the crime prevention mechanism. It is a challenge for contemporary international and Russian law to strike a fair balance between the interests of the subjects of public relations. In this connection, the claim has another crucial significance — it ensures the right of the victim for the unhindered access to court by restoring his/her rights and compensating the moral damage inflicted by the criminal act. The realization of this right depends on the formulation of the object and grounds for the claim; their specific features are described by the author in the existing research concepts of the theory of claim developed in the civil procedure law research. The objective of protecting the violated rights of the victim is above the division of law into areas; it is formulated in view of the principle of optionality, which is reflected in both civil procedure and civil legislation of Russia. Taking into account the trends in the criminal policy of foreign countries aimed at the attenuation of the punitive side of the criminal justice system and the development of economic measures of influencing crime, the author presents arguments in support of the legal and actual appeal of a civil claim in criminal proceedings based on the established clauses of the procedural theory and the contemporary needs of the law enforcement practice.

The article continues the development of the topic of convergence of public and private law. The social background is determined by the Covid-19 pandemic. The private legal aspects of the emergency situation, force majeure, requisition, and the unknown absence of people were among the priorities. Civilists have been familiar with these categories for a long time. Wars, natural disasters always accompany society and at different times the legal reaction of the state to human misfortunes becomes extremely important. These legal concepts are consistently analyzed in this manuscript. The specific contribution of specialists of the Tomsk State University Law Institute is shown. Scientific forecasts and the approximate fate of the necessary regulatory arrays have been determined. The expediency of working out the civilistic block of norms in complex federal laws, in particular, in the Information Code, is substantiated. The article proposes a number of measures aimed at strengthening the protection of citizens' interests. The thesis about the need for more radical transformations of the Family Code is repeated, since the reforms of the last two decades have turned into a process of "patching holes"; the fragmentary nature of the measures taken gives negligible results. The author suggests returning to the discussion of the development of the Children's Code of the Russian Federation. The question of the need for a Children's Code in Russia in the literature accessible to the Soviet reader was raised more than a hundred years ago. Professor M.N. Gernet in his now famous monograph called one of the paragraphs "Children's Codes". There was no deeper and more thorough research in our private law literature. This is quite understandable, the criminological aspect "scared off the civilists." M.N. Gernet gave an overview of the content of children's codes (or regulations) of a number of countries. In previous works, the idea of abandoning the Housing Code was justified. Here are the arguments in favor of replacing it with another legal form. The issue of replacing the Housing Code of the Russian Federation is not difficult to solve at all, there is good experience. After all, the first Housing Code of the RSFSR appeared only in 1983, and did not live long. The following code could not be made qualitative, consistent with the Civil Code. It is impossible to include all the huge housing legislation in a small diversified regulatory act. Thus, the way to improve housing legislation is open for scientific research. The author declares no conflicts of interests.

This article is a development of the author's concept of civil circulation, according to which the latter should be perceived not as a legal form of economic circulation (as it is established in the Russian civilistic doctrine), but as a systematically organized sphere of actual (real) relations of subjects, representing an economic subsystem of society, which should be subject to legal regulation due to its social importance. Choosing the mechanism of legal regulation of civil circulation as the subject of this study, the author highlights approaches to the understanding of the mechanism of legal regulation (available in the general theory of law) and to the issue of its elements, the types of legal regulation allocated in science. On this basis, the author formulates a general definition of the mechanism of civil circulation legal regulation, and gives characteristics of legal regulation means and types of this social sphere. The mechanism of civil circulation legal regulation is defined as a system of legal means, by which legal regulation (ordering) of social connections (relations) that form civil circulation as a sphere of society is carried out. It is noted that the elements of the mechanism of civil circulation legal regulation are such legal means as: 1) norms of positive law; 2) (specific) legal relations of subjects of civil circulation; 3) acts of implementation of legal opportunities and obligations by participants in civil circulation; 4) (optionally) acts of law application. It is summarized that the peculiarity of these means of the civil circulation legal regulation mechanism is the presence of «intersectoral component», caused by the specificity of civil circulation as an object of legal regulation. The author pays attention to the necessity of developing a general (intersectoral) doctrine of the civil circulation legal regulation mechanism. It is argued that the legal regulation of civil circulation is carried out not through a combination of two types of legal regulation – public law and private law types, but through the only one – general permissive type.

La tesi tratta delle problematiche relative all'acquisto di azioni proprie. La prima disciplina dell’operazione avviene nel Codice di Commercio per poi attraverso varie modifiche e attuazioni di Direttive Comunitarie arrivare alle ultime disposizioni del D.Lgs 29 novembre 2010 n. 224. L'attuale normativa regola in modo dettagliato all''art. 2357 c.c. e seguenti tale argomento. All’operazione di acquisto di azioni proprie vi si ricorre per svariati motivi tra cui: riduzione del patrimonio eccedente, regolazione del corso dei titoli in borsa, finalità di controllo societario, finalità interne alla società, accordi interaziendali. La normativa di cui sopra si concretizza con la precisa appostazione in bilancio delle “azioni proprie” e dei “Fondi riserva acquisto azioni proprie”, il cui inserimento in un raggruppamento piuttosto che in un altro, rappresenta politiche e immagini aziendali diverse. Infine il lavoro si sofferma anche su metodi piu’ sofisticati di acquisizione delle azioni proprie, leveraged by out, opzioni call e put, buy back, in continua espansione nei mercati internazionali.

Il volume sviluppa una riflessione intorno alla figura giuridica delle “clausole generali”, evidenziandone la collocazione all’interno delle categorie della scienza del diritto, indagandone gli elementi costitutivi e approfondendo criticamente il suo rapporto con la dimensione "costituzionale” dell’ordinamento giuridico. Lo studio prende le mosse analizzando lo statuto metodologico del “discorso intorno alle clausole generali”, indicando le più ricorrenti cause d’equivoco che contraddistinguono la materia e predisponendo quale rimedio un chiaro apparato stipulativo, sulla cui scorta l’indagine si rivolge poi a quei rami della scienza giuridica (soprattutto civilistica e teorico-generale) che alla categoria in parola hanno tradizionalmente dedicato la maggior attenzione. Tale percorso consente all’Autore di mettere in luce la “pluralità” dei concetti di clausole generali, enucleando per ciascuno di essi le caratteristiche strutturali e funzionali e tracciandone un primo bilancio, che costituisce la base per la successiva ricerca sul piano del diritto costituzionale. Ed è qui che viene in evidenza come il rapporto fra Costituzione e clausole generali intrecci i fili della sua trama con argomenti chiave della scienza costituzionalistica come ad esempio quello delle norme “a fattispecie aperta”, delle formule “compromissorie” o dei “principi/valori”. L’indagine dogmatica viene poi affiancata da un’attenta analisi della giurisprudenza costituzionale in tema di clausole generali, le cui risultanze sono occasione per delineare lo scenario conclusivo d’un approccio critico che consenta effettivamente di “prendere sul serio” le clausole generali costituzionali.