Articles de revues : « Judicial Borrowing »

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Гладунова, Елена. « Государственная служба в судебных органах Европы и Украины : сравнительный анализ ». Studia Sieci Uniwersytetów Pogranicza 5 (2021) : 45–61. http://dx.doi.org/10.15290/sup.2021.05.04.

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Goal – to carry out a comparative analysis of civil service in the judiciary of Europe and Ukraine and highlight the positive foreign experience for the possibility of borrowing it in the Ukrainian state. Research methodology – the article uses the method of system analysis, an integrated approach, a comparative method, as well as analysis and generalization of practical activities. Score/results – the article analyses the organization and functioning of the civil service on the example of some foreign countries. The main similarities and differences in the relationship between the institution of public service and the judicial authorities of Ukraine are highlighted. Ways of functional optimization and problem solution based on borrowing foreign experience are proposed. Originality/value – the work was performed by the author independently, without outside help. The article contains links to quotes, as well as links to legislation. In essence, the article is an overview report.

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Susilowati, Susi, Hany Maria Valentine et Samuel Ramos. « Rancang Bangun Aplikasi Simpan Pinjam Koperasi Pegawai Pada Komisi Yudisial RI Berbasis Android ». Eksplorasi Teknologi Enterprise dan Sistem Informasi (EKSTENSI) 1, n^o 1 (30 novembre 2022) : 1–8. http://dx.doi.org/10.59039/ekstensi.v1i1.1.

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The Indonesian Judicial Commission Employee Cooperative in the process has several problems, namely the loan application process is still in the form of paper which is prone to loss. Cooperative members do not know whether the savings and loan application process are accepted or rejected. Then in the process of saving, borrowing, instalment and member registration transactions that cannot be accessed online. For the analysis method and the concept of this information system, the Unified Modelling Language (UML) model with the Flutter programming language and MySQL database is used. With the construction of an employee cooperative savings and loan information system at the Indonesian judicial commission, it can solve the problems faced in the company. Such as loan applications, saving, borrowing, instalment and member registration processes. This reduces work using Microsoft Excel or Word and file filling. The results obtained with the construction of this information system accelerate the savings and loan process and facilitate access to the application process.

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Samararatne, Dinesha. « Judicial borrowing and creeping influences : Indian jurisprudence in Sri Lankan public law ». Indian Law Review 2, n^o 3 (2 septembre 2018) : 205–23. http://dx.doi.org/10.1080/24730580.2018.1564961.

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RUBIN, AVI. « Legal borrowing and its impact on Ottoman legal culture in the late nineteenth century ». Continuity and Change 22, n^o 2 (août 2007) : 279–303. http://dx.doi.org/10.1017/s0268416007006339.

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ABSTRACTThe article sheds fresh light on socio-legal change in the Ottoman Empire during the late nineteenth century by focusing on the legal culture that emerged in the newly established Nizamiye court system. It is argued that a characteristic Nizamiye discourse that emphasized procedure mirrored the syncretic nature of this judicial system. This syncretism was a typical outcome of legal borrowing, encompassing both indigenous and foreign legal traditions. In addition, the article points to the possible impact of the new legal culture on judicial strategies employed by litigants. The accentuation of procedure opened up new litigation opportunities for the wealthier classes while disadvantaging and alienating the lower strata of society. Yet Ottoman law also provided some legal solutions for the lower orders.

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Gusev, Aleksey Yu. « The Development of Legal Provisions on Protection of Social Rights of Employees in the Pre- Revolutionary Russia (the Early XX Century) ». Arbitrazh-civil procedure 4 (8 avril 2021) : 56–60. http://dx.doi.org/10.18572/1812-383x-2021-4-56-60.

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The author analyzes the legally established methods of protecting the right to social security of employees and their family members in pre-revolutionary Russia, judicial protection of such rights, examines the practical issues of applying such protection, the main sources of Russian legislation of that time that regulated these issues, and makes some suggestions about the possibility of borrowing positive experience by modern Russian legislators.

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Красівський, Орест, et Орися Мерза. « European experience of state policy in the field of justice ». Public administration aspects 8, n^o 4 (29 octobre 2020) : 55–63. http://dx.doi.org/10.15421/152080.

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The article considers European experience of state policy in the field of justice. Various models of justice in Europe, on the basis of which protection of rights and freedoms of citizens and their interaction with public authorities and local governments is ensured, are considered. Different approaches to the construction of the system of justice in different European countries are highlighted. The essence of the judicial bodies in different European countries is determined and their activity is evaluated.It is argued that each European country has its own peculiarities of appointment of judges to their positions. It is determined that in most European countries organizational support of judicial institutions belongs to the competence of executive bodies, which are mainly the Ministries of Justice. Common and distinctive features of the activity of judicial bodies in European countries and in Ukraine are analyzed. It is noted that in Ukraine, in contrast to European countries, the powers in the field of intellectual property do not belong to the judicial bodies, but to the State Intellectual Property Service of Ukraine, which is a separate central executive body. Proposals regarding improvement of the activities of the judiciary bodies in Ukraine, taking into account European experience, are made. European experience shows that a rationally constructed system of justice can be an effective mechanism for protection of rights of citizens and promote the development of a civilized legal society. Analysis of this experience shows the possibility of borrowing the positive achievements of European legal policy to improve the activities of judiciary bodies in Ukraine. European standards will promote the establishment of the rule of law in Ukrainian state and ensure effective protection of human and civil rights in relations with public administration and local self-government bodies arising in the field of public legal relations in Ukraine.

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Masterman, Roger. « The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court : institutional proximity and jurisprudential divergence ? » Northern Ireland Legal Quarterly 71, n^o 2 (14 août 2020) : 285–302. http://dx.doi.org/10.53386/nilq.v71i2.320.

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It is often claimed that the constitutional role of the UK’s apex court is enriched as a result of the experiences of the Judicial Committee of the Privy Council as interpreter of constitutions within its overseas jurisdiction. This paper considers the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system(s), further seeking to assess how far the jurisprudence of the Judicial Committee has influenced constitutional decision-making in the UK apex court. While ad hoc citation of Privy Council authorities in House of Lords/Supreme Court decisions is relatively commonplace, a post-1998 enthusiasm for reliance on Judicial Committee authority – relating to (i) a ‘generous and purposive’ approach to constitutional interpretation and (ii) supporting the developing domestic test for proportionality – quickly faded. Both areas are illustrative of a diminishing reliance on Judicial Committee authority, but reveal divergent approaches to constitutional borrowing as the UK apex court has incrementally mapped the contours of an autochthonous constitutionalism while simultaneously recognising the trans-jurisdictional qualities of the proportionality test.

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KELEMEN, R. DANIEL, et TERENCE K. TEO. « Law, Focal Points, and Fiscal Discipline in the United States and the European Union ». American Political Science Review 108, n^o 2 (mai 2014) : 355–70. http://dx.doi.org/10.1017/s0003055414000100.

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Many studies suggest that strict balanced budget rules can restrain sovereign debt and lower sovereign borrowing costs, even if those rules are never enforced in court. Why might public officials adhere to a rule that is practically never enforced in court? Existing literature points to a legal deterrence logic in which the threat of judicial enforcement deters sovereigns from violating the rules in the first place. By contrast, we argue that balanced budget rules work by coordinating decentralized punishment of sovereigns by bond markets, rather than by posing a credible threat of judicial enforcement. Therefore, the clarity of the focal point provided by the rule, rather than the strength of its judicial enforcement mechanisms, determines its effectiveness. We develop a formal model that captures the logic of our argument, and we assess this model using data on U.S. states. We then consider implications of our argument for the impact of the balanced budget rules recently imposed on eurozone states in the Fiscal Compact Treaty.

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Emeziem, Cosmas. « From Judicial Transplants to Judicial Translations : Constitutional Courts in Southern Africa – A Comparative Review ». International and Comparative Law Review 19, n^o 1 (1 juin 2019) : 74–124. http://dx.doi.org/10.2478/iclr-2019-0003.

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Summary The contemporary legal landscape in Southern Africa and its responsiveness to the challenges in the region can be explained in many ways. Part of the explanation has been the idea of legal transplants—which entails borrowing and adapting legal norms, and structures from different legal systems in order to resolve legal problems in the region. The end of apartheid and other rapid changes in the region—political, racial, economic and social—has directly placed the courts on the frontlines of human rights protection especially on socio-economic rights and other overarching concerns of law reform. The adoption of constitutional courts in some of the countries, and consequent judicial activist turn in the jurisprudence of courts in the region generally; has inserted the courts into the mainstream of policy deliberations. Thus, this paper claims that legal transplant per se does not explain the full reality of what is going on in the region—in terms of nomativization, transmission, adoption, and adaptation of legal ideas within the respective systems in the region. It further claims that a mesh of different understandings and approaches to legal comparison and development is more suitable as a method of studying pluralist complex systems as we see in the region. Hence, the notion of judicial translation—the judiciary forming the membrane, purveyor and capillary of legal transmission—as an essential lens through which we can better view and understand the legal evolution in the region. Taking the institution of courts – particularly constitutional courts—and examining their jurisprudence as epitomized in some of their decisions of finality—the work seeks to begin a meaningful deliberation about the role of courts in law, social change, and policy in the region. It is divided into three major parts for ease of discourse. It is hoped that this would be a fitting exordium into the more significant meaning of legal transplant through judicial intervention in otherwise predominantly policy questions in the Southern African region.

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Stanciu, Mihai-Alexandru. « The content of the preventive measure of home detention ». Technium Social Sciences Journal 16 (4 janvier 2022) : 642–48. http://dx.doi.org/10.47577/tssj.v16i1.5649.

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The criminal procedural provisions in Romania regulate a number of 5 preventive measures, of which 3 are custodial and two restrictive. Of these, the measure of house arrest, regulated as a novelty at the beginning of 2014, seems to be an intermediate form between judicial control and pre-trial detention, borrowing elements of content from both measures. Compared to the obligations that can be imposed on the defendant arrested at home, certain situations can be left uncovered by the legislator, which can make the measure seem ineffective in practice.

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SUKHANOV, E. A. « THE RESEARCH CENTRE AND DEVELOPMENT OF DOMESTIC CIVIL STUDIES ». Civil Law Review 22, n^o 1 (5 mai 2022) : 30–44. http://dx.doi.org/10.24031/1992-2043-2022-22-1-30-44.

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The main results of the 30-year work of the Private Law Research Centre and the main directions of the forthcoming scientific work are highlighted. The negative features of the concept of economic analysis of law, which are proposed to be gradually replaced by legal analysis of the economy, as well as the negative aspects of excessive enthusiasm for the legal registration of business relations and borrowing foreign experience in legal development, are noted. The necessity of developing a general theory of civil law is proved, and the groundlessness of the search and reinforcement of theoretical structures directly in law enforcement (judicial) practice is pointed out.

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Krichevtsev, Mikhail Vladimirovich. « Reforms of the Military Judicial System of Switzerland in 1799-1800 : on the Question of French Influence ». Genesis : исторические исследования, n^o 12 (décembre 2022) : 215–26. http://dx.doi.org/10.25136/2409-868x.2022.12.39518.

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The proposed article is devoted to the history of two reforms of military justice in Switzerland – 1799 and 1800. It describes a chronologically small but very important stage of the transition to a new military-judicial organization associated with foreign interference in the affairs of the country. The purpose of the study is to present the main changes in the military justice of Switzerland and the degree of influence on them of the French institutions of the late XVIII century. The object of study here is the military-judicial law of the Helvetic Republic, reflected in the laws of July 27, 1799 and November 24, 1800. The subject of the study is the process of reforming military justice in Switzerland at the reception of the norms of French law. When working on the materials of the topic, the comparative historical research method, contextual analysis of legal documents and structural and functional analysis of judicial and legal institutions of the two countries were applied. As a result, the study showed that the reforms created a new system of military justice, which was connected only with the military organization and did not depend on the cantonal affiliation of military personnel. The reform of 1799 differed from the reorganization of 1800 by the greater radicalism and democracy of the institutions created, which corresponded to the political aspirations of various ruling groups that succeeded each other in the Helvetic Republic leadership. Nevertheless, both reforms were oriented towards the assimilation of the French experience of the military judicial system of the era of the Great Revolution. The borrowing of foreign military-judicial law in Helvetia was not limited to the complete copying of foreign norms, Swiss legislators were able to show a certain originality in their adoption. The main difference of the Swiss military judicial organization was the introduction of a three-tier system of military courts and the preservation of the institution of disciplinary councils, which in the French Republic by the end of the XVIII century already ceased to exist.

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Kuznetsov, V., et M. Syiploki. « New prospects for the development of electronic justice in sentencing ». Uzhhorod National University Herald. Series : Law 2, n^o 72 (27 novembre 2022) : 149–55. http://dx.doi.org/10.24144/2307-3322.2022.72.57.

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It is stated in the article that today Ukraine has received the status of a candidate for EU membership with the requirement, in particular, strengthening of anti-corruption and continuation of judicial reform. These challenges for national security are foreseen in the Strategy for the Development of the Justice System and Constitutional Judiciary for 2021–2023 (approved by the Decree of the President of Ukraine dated June 11, 2021 No. 231/2021). Separate measures to solve the specified problems are defined, in particular, the development of electronic justice taking into account world standards in the sphere of information technologies. It has been established that such measures mostly solve the issue of communication and access to justice, but the fairly promising issue of using information technology in the administration of justice remains neglected. The subject of our research is the issue of the introduction of electronic justice through the use of cybernetic methods by judges when imposing punishment. It has been established that the issue of the use of cybernetic methods by judges in sentencing is almost not investigated in Ukraine today and does not find appropriate implementation in conceptual documents on reforming the justice system. The analysis of the world experience of information technologies’ introduction makes it possible to draw a conclusion about its use in solving various legal issues: the detection and investigation of crimes, the expansion of communication between citizens and judicial authorities, the legal assessment of actions, etc. It is concluded that the formation of modern legislation based on the principles of wide application of judicial discretion is a “genetic” feature in the history of the former USSR republics legislation development. It is noted that the insufficient definition of criminal legal norms, the ambiguity of some terms, the variability of the punishment, the absence of detailed and clear rules for the imposition of punishment in the law significantly complicate the law enforcement process. All this leads to differences in judicial practice, to judicial errors, manifestations of corruption and, as a result, to a decrease in the authority of the judiciary. The analysis of the criminal law doctrine provisions proved that the idea of formalizing the appointment of criminal punishment did not receive proper development, although it was considered in the works of individual authors. Two directions of cybernetic methods using in the programming of the sentencing process have been identified: full and partial. It is concluded that the study of H. Alikperov “Electronic Scales of Justice”, which is based on the matrix of punishment and algorithms of its individualization, is promising for borrowing when creating new criminal legislation and reforming justice. The conducted research makes it possible to draw the following conclusions: the issue of automating judicial decision-making in modern conditions of digitization, reforming the judicial system and finding new effective means of combating corruption in the administration of justice in Ukraine requires a new understanding and possible reception for implementation in law enforcement activities; informational progress cannot be left without proper control by the state and must not violate human rights and freedoms; the use of cybernetic methods of formalizing punishment is impossible without stable criminal legislation and fair sanctions of prohibitive criminal legal norms that correspond to the public danger of the offense; conceptual documents regarding the development of the justice system should take into account the possibilities of using modern technologies not only to expand communication between subjects, access to justice, but also the use of information technologies specifically in the implementation of justice.

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Lysko, T. D., et I. A. Osadcha. « CRIMINAL RESPONSIBILITY FOR RAPE : ANALYSIS OF JUDICIAL PRACTICE ». Constitutional State, n^o 46 (20 juin 2022) : 87–93. http://dx.doi.org/10.18524/2411-2054.2022.46.257814.

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The issue of qualification of criminal offenses against sexual freedom and sexual integrity became especially relevant after Ukraine had signed a number of international conventions and had made significant changes to the Criminal Code of Ukraine. The purpose of the scientific article is to highlight these issues and to form the legal guidelines for developing an unified approach to the qualification of these criminal offenses. During the research, empirical methods are used. These methods allow to study the case law and identify the main trends in the qualification of rape. Currently, the issue of qualification of the rape, committed combined with violence against the victim, is quite acute. In addition, there are problems in distinguishing related types of sexual crimi¬nal offenses and resolving the issue of qualification by a set of individual manifestations of criminal illegal behavior that encroaches on two of the most important social values – sexual freedom and sexual inviolability of a person. The analysis and generalization of judicial practice in the context of the amendments to the Criminal Code of Ukraine, which entered into force on January 11, 2019, is becoming especially relevant. Simply borrowing the provisions of the Istanbul Convention without implementing them into national law did not solve the existing problems. What is more, such a reckless step significantly complicated the issue of delimitation of criminal offenses that violate sexual freedom and sexual in¬violability, it caused problems of qualification of these criminal offenses and it broke the established legal approaches to resolving legal conflicts. This situation highlights the need to develop legal guidelines that will bring these issues closer to the legal field and stabilize judicial practice. Despite such progressive and cardinal influence of international law on national criminal law, we have received a rather “doubtful” legal basis for the protection of the most important social values – sexual freedom and sexual inviolability of a person, in terms of unambiguity, correctness and legal certainty. We can state the lack of an unified approach of the courts of Ukraine on the qualification of rape and other criminal offenses that violate sexual freedom and sexual inviolability of a person, against the background of legislative changes that entered into force on 11.01.2019. We consider it necessary to emphasize the need to generalize judicial practice and develop legal guidelines for the implementation of an unified approach to the qualification of these criminal offenses.

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Jesse, James. « Limitation Clauses at the African Regional Human Rights System and Tanzania : Reflection of Judicial Decisions ». Eastern Africa Law Review 48, n^o 1 (30 juin 2021) : 62–101. http://dx.doi.org/10.56279/ealr.v48i1.2.

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Enjoyment of fundamental human rights as guaranteed by the African Charter or Constitution of Tanzania is subject to limitations which are set out by the ordinary law made by parliament. However, case law has demonstrated that no provision of the limitation clause in the African Charter or Constitution may be interpreted as permitting a State to suppress enjoyment or exercise of the rights and freedoms to a greater extent than reasonably required. Which tests or criteria should guide the court or other authorities depends on the instrument in question. Both the African Charter and the Constitution of Tanzania do not have clearer guiding criteria. Courts have attempted, nevertheless, to come up with criteria or tests by borrowing from international, other regional and domestic human rights systems. This article reviews case law from the African Court and Tanzania and finally proposes the adoption of the three-tier test in resolving tension when at issue before the Court is whether or not a legislation or conduct is saved by Article 30(2) of the Constitution which allows limitation of human rights. The benefit of adopting this approach would enable domestic courts to be consistent when deciding human rights petitions. Key Words: Limitation Clauses, Claw-back clauses, proportionality principle, necessary in a democratic society.

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Kirilova, Karina V. « FEDERAL PATENT COURT OF GERMANY AS AN INSTITUTE FOR THE PROTECTION OF PATENT RIGHTS ». RUDN Journal of Law 24, n^o 4 (15 décembre 2020) : 1024–38. http://dx.doi.org/10.22363/2313-2337-2020-24-4-1024-1038.

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The establishment of the Institute for the protection of patent rights, namely the establishment of the Federal patent court of Germany, has passed a rather difficult historical path. Interest to protection of patent rights was first identified in 1877, and that year the Patent law came into force; it is still relevant with a new version dated December 16, 1980. The German Federal patent court was established on 1 July 1961 as an independent Federal court. Strife for its establishment was conducted for a long time; it was accompanied by the need to introduce qualified specialists into that system, so called technical judges. The relevance lies in the borrowing of the German model of organization and functioning of the Federal patent court of the Federal Republic of Germany by other States to regulate the work of such a body in the judicial system of the country. The purpose of this article is to study the Institute for intellectual property protection in Germany. The author pays attention to the place and role of the Federal patent court of Germany in the German judicial system, as well as examines the legal regulation of the activities, structure and formation of the Federal patent court of Germany. The methodology of the research consists of the General scientific dialectical method of cognition and the methods that stem from it: systemic, logical, special-legal and statistical. In conclusion, the author of the study argues that today the most effective tool in ensuring and restoring violated intellectual rights is judicial protection, because the process of reviewing complaints in court contributes to finding objective solution to the dispute and allows restore the violated rights.

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Rautenbach, Christa, et Lourens du Plessis. « In the Name of Comparative Constitutional Jurisprudence : The Consideration of German Precedents by South African Constitutional Court Judges ». German Law Journal 14, n^o 8 (1 août 2013) : 1539–77. http://dx.doi.org/10.1017/s207183220000239x.

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Judges involved in constitutional adjudication often engage in comparative analyses of foreign cases. The judges of South Africa's Constitutional Court [hereinafter Constitutional Court] do so, too. The phenomenon has been given many names such as “transjudicialism,” “transjudicial communication,” “constitutionalist dialogue,” “judicial globalization,” “constitutional cross-fertilization,” “transnational contextualization,” “globalization of judgment,” “globalization of national courts,” “constitutional borrowing,” “constitutional comparativism,” and “judicial comparativism.” All these terms have merit, especially within their appropriate context, but for the purposes of this contribution we will use the term “comparative constitutional jurisprudence” to name the phenomenon we wish to describe and discuss. First, in the South African context, the terms “dialogue,” “cross-fertilization,” and “globalization” do not reflect the true nature of the exercises in drawing comparisons in the South African Constitutional Court. These terms imply a reciprocal dialogue between two or more courts from different jurisdictions. It is evident, however, that the South African Constitutional Court has been considering far more foreign jurisprudence than any non-South African constitutional court has been considering South African jurisprudence—in other words, this has largely been a case of one-way traffic. S v. Makwanyane, in many ways the inaugural decision of the Constitutional Court, contains 220 foreign case citations from 11 countries and three supranational courts. To our knowledge no other foreign court can boast a comparable statistic.

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Sharipova, Aliya. « The Concept of Convergence of Criminal Procedure Law with Other Branches of Procedural Law ». Legal Concept, n^o 1 (mai 2022) : 57–63. http://dx.doi.org/10.15688/lc.jvolsu.2022.1.8.

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Introduction: excessive variability of the criminal procedure legislation against the background of other branches, the need to take into account pre-trial court decisions, and unified processes of digitalization in justice have actualized the study of the possibility of convergence of four procedural branches of law. The purpose of the work is to develop the key provisions of the concept of convergence, i.e. coming together of criminal procedural law with civil procedural, arbitration procedural, and administrative procedural law. The approximation of criminal procedure law to other procedural branches due to the unification of a number of intersectoral institutions should serve the task of improving the quality of justice. Methods: the defining method of research is the method of comparative jurisprudence. The most important institutions of the “judicial” part of the criminal procedure are compared with their branch counterparts from other procedural branches of law. The research also uses the methods of historicism, system-structural analysis, and synthesis. Results: for some universal procedural institutions, fundamental differences in normative consolidation have been identified, the manifestations of which reduce the quality of justice in criminal cases. The gradual borrowing of the techniques tested in them into the criminal procedure from other branches can ensure procedural convergence without creating supra-sectoral structures of judicial law. Conclusions: the author proposes the ways of convergence of the criminal procedure “split off” from the rest of the procedural branches. A preliminary legislative examination of the impact on the identity of the normative consolidation of universal intersectoral institutions should be applied to draft laws on amendments to any procedural code. The joint scientific development of intersectoral problems in procedural law and the development by the law enforcer of unified approaches in “judicial” law will contribute to the convergence of not only the law but also science and law.

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Zvi Stampfer, Y. « Genizah within the Genizah ». Intellectual History of the Islamicate World 8, n^o 2-3 (30 juillet 2020) : 265–83. http://dx.doi.org/10.1163/2212943x-20201008.

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Abstract This paper deals with passages from works by Muslim authors embedded within works of Jewish Law (Halakha) and biblical commentary; some passages are quoted verbatim, while others were reworked to fit the Jewish context by replacing references to the Qurʾān with references to the Jewish Bible. The Jewish works were written in Judeo-Arabic, making it easy to seamlessly adapt and integrate passages written in Arabic. Neither of the Jewish authors note that they are borrowing from earlier sources: sometimes one can recognize the embedded passage through a change in the linguistic register, but in other cases only familiarity with the borrowed texts can bring them to the reader’s attention. While scholars have noted this phenomenon in fields outside the Jewish legal context, such as philology and philosophy, it has not been recognized within judicial works. The sources discussed here survived only in the Cairo Genizah and have not previously been published.

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Irawan, Bambang. « Institutional Pluralism Sistem Peradilan Indonesia dan Kekuatan Negara di Era Globalisasi ». Jurnal Borneo Administrator 15, n^o 3 (13 décembre 2019) : 237–56. http://dx.doi.org/10.24258/jba.v15i3.436.

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This article comes from the argument saying that the main indicator for measuring a state’s power is based on its endurance survival. Borrowing the concepts developed by International Relations and Public Administration, this article aims to describe the concept of a state’s power and its relations to administrative setting. Traditionally, state’s power is measured by its ability to affect the environment (external), however, the contemporary trend suggests that state’s power is leaning more and more towards the state ability to serve the demand of its people(internal)One of the global issues concerns to the ability of a state to fulfill justice and security internally. In Indonesian context, its judicial system and institutions revolve around three main institutions, the Supreme Court, the Constitutional Court, and the Judicial Commission. The institutional reform of Indonesia's justice system is intended to maintain accountability and reflect an institutional pluralism model. However, the model does not necesarily create a high level of public confidence towards the Indonesian judicial system, and later, it will affect Indonesia’s survivability. Keywords: Judicial System and Institutions of Indonesia, Institutional Pluralism, State’s Power, Survivability Abstrak Artikel ini bertitik tolak dari argumen yang mengatakan bahwa indikator utama dari kekuatan suatu negara adalah sejauh mana ia bisa menjaga eksistensinya (survival). Meminjam konsep-konsep yang dikembangkan dalam studi Hubungan Internasional dan Administrasi Publik, artikel ini bertujuan untuk mendeskripsikan konsep kekuatan Negara serta hubungannya dengan tatanan administratif dari suatu Negara tersebut. Jika secara tradisional kekuatan Negara sering kali diukur melalui kemampuan untuk memengaruhi lingkungan (eksternal), maka kecenderungan yang terjadi pada era kontemporer menunjukkan bahwa konsep kekuatan negara perlahan semakin bergeser pada penekanan terkait kemampuan Negara tersebut untuk melayani tuntutan masyarakatnya (internal). Salah satu isu global yang yang menjadi perhatian adalah kemampuan Negara untuk memenuhi rasa keadilan dan keamanan (order, justice dan security) di tengah masyarakat. Dalam konteks Indonesia, sistem dan lembaga peradilan berfokus pada tiga institusi yakni Mahkamah Agung, Mahkamah Konstitusi dan Komisi Yudisial. Reformasi kelembagaan sistem peradilan Indonesia dimaksudkan untuk menjaga akuntabilitas serta merefleksikan model institutional pluralism. Meski demikian, model tersebut tidak serta merta berdampak pada tingginya kepercayaan publik terhadap sistem peradilan Indonesia, dan pada gilirannya akan berpengaruh terhadap survivability Indonesia. Kata Kunci: Sistem dan Lembaga Peradilan Indonesia, Institutional Pluralism, Kekuatan Negara, Survivabilitas

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Lenaerts, Koen. « THE CONTRIBUTION OF THE EUROPEAN COURT OF JUSTICE TO THE AREA OF FREEDOM, SECURITY AND JUSTICE ». International and Comparative Law Quarterly 59, n^o 2 (avril 2010) : 255–301. http://dx.doi.org/10.1017/s0020589310000023.

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ABSTRACTThe aim of this article is to provide an overview of the European Court of Justice's (‘ECJ’) past and present contribution— both procedurally and substantively—to the Area of Freedom, Security and Justice. While it is too early to speculate what the ECJ's contribution to this area will be under the provisions of the Treaty of Lisbon, which entered into force on 1 December 2009, the latter's modifications to the ECJ's jurisdiction merit close attention. After describing how the procedural limitations that were imposed on the ECJ's jurisdiction by ex Title IV of Part Three of the EC Treaty and by ex Title VI of the old EU Treaty have been almost entirely eliminated by the Treaty of Lisbon, this article posits that not only does the latter Treaty improve significantly the judicial protection of private individuals, but it also facilitates the dialogue between the Union and the national judiciaries in the Area of Freedom, Security and Justice. Next, the article briefly explores the special ECJ procedures which may be followed in the Area of Freedom, Security and Justice in cases where time is of the essence. There, it is argued that, when having recourse to these procedures, the ECJ strives to strike the right balance between, on the one hand, swift judging and, on the other hand, the preservation of a qualitative and fair judicial procedure. As to substantive issues, drawing on examples from the fields of judicial cooperation in civil matters, asylum and judicial cooperation in criminal matters, it is argued that the ECJ's contribution to this area is largely grounded in the protection of fundamental rights. Finally, a brief conclusion supports the contention that the ECJ's contribution to the Area of Freedom, Security and Justice has favoured a ‘mutual borrowing’ of concepts and principles as between this area and other fields in relation to which the EU has competences, such as the internal market and competition. The Treaty of Lisbon having entered into force, an unprecedented level of coordination between different areas of EU law on both the procedural and substantive levels is to take place. Respect for fundamental rights will definitely be a unifying factor binding them all together.

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Holzer, Elizabeth. « Borrowing from the Women's Movement "for Reasons of Public Security" : A Study of Social Movement Outcomes and Judicial Activism in the European Union ». Mobilization : An International Quarterly 13, n^o 1 (1 février 2008) : 25–44. http://dx.doi.org/10.17813/maiq.13.1.52r0urt362184572.

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Can an elite-sponsored outcome be a social movement outcome? In Kreil v. Germany, the European Court of Justice issued a judgment hailed as a feminist victory, censuring Germany's exclusion of women from the military. But the women's movement did not sponsor the case; it was an organizational achievement for the nascent court that extended its jurisdiction to public security while preserving its legitimacy among potentially non-cooperative member states. With this case, I reassess movement-elite relations in the context of past protests that forged discursive resources. The women's movement did play an important role in this case: the court relied on discursive resources from past feminist activism to legitimize its decision and frame it as a matter of women's rights, drawing attention away from its uncertain jurisdiction. I present a model of "borrowing" from movements, a relationship distinct from alliances and cooptation, to show how elite-sponsored outcomes can still be movement outcomes.

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Markesinis, Basil. « FOREIGN LAW INSPIRING NATIONAL LAW. LESSONS FROM GREATOREX V. GREATOREX ». Cambridge Law Journal 61, n^o 2 (24 juin 2002) : 386–404. http://dx.doi.org/10.1017/s0008197302001666.

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The author focuses on the voluntary use by judge or counsel of foreign law and foreign legal ideas as a means of shaping national law when this is unclear, contradictory, or otherwise in need of reform, as distinct from the formal presentatin of foreign law through expert witnesses where such law has to be applied. The number of instances in which this kind of borrowing may happen must, of necessity, be limited. The problem is that foreign law is unlikely to come in a simple form, attractively packaged; and language is a major problem in judicial attempts to be inspired by a foreign idea if not to transplant the actual solution. This has led the author to advocate a more co-ordinated use of the different talents that judges, practitioners, and academics bring to the process of creating and interpreting law and to assist the process by provision, in the English language, of easily accessible accounts of relevant foreign material. The approach finds an excellent practical illustration in the judgment of the High Court in Greatorex v. Greatorex.

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Burkova, D. A. « Role of medieval universities in reception of Roman law ». Russian Journal of Economics and Law 16, n^o 4 (9 décembre 2022) : 777–89. http://dx.doi.org/10.21202/2782-2923.2022.4.777-789.

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Objective: to comprehensively study the reception of Roman law in Europe in the 11th – 17th centuries as the key element of the continental legal system formation; to consider the reception process through the study of the activities of medieval universities, which had a decisive influence on the borrowing of Roman legal norms and adapting them to European realities, and on the formation of the continental system of law.Methods: the article uses the main general scientific research methods: induction, extrapolation, analysis and synthesis, and also uses a comparative method of scientific research that allows tracing changes in the norms of Roman law during its reception.Results: it is difficult to overestimate the importance of Roman law reception for the European legal order and legal culture. As a result of a long process of analyzing, borrowing and adapting the Roman legal norms, the continental law system developed with the legal traditions and institutions forming it. It would not be an exaggeration to say that the full-fledged perception and qualitative adaptation of Roman law in the medieval states were possible only due to higher educational institutions. University professors disclosed the meaning of Roman legal norms in research works, taught students to apply these norms in the social conditions of that period, analyzed judicial practice, and contributed to the evolutionary changes of law that had arisen in the Roman Empire. In general, thanks to their activities, the absolute authority of Roman law was confirmed, and the attitude towards jurisprudence changed – law was no longer perceived as a limited set of casuistic laws adopted by the state, but as science and art.Scientific novelty: the article for the first time examines the influence of the Roman law reception, which was carried out by European universities, on the continental legal system formation. The evolutionary stages of the Roman law reception are considered: from the scholastic interpretation of the Code of Justinian by glossators to the activities of humanists. The opinion is argued that the transfer of cases to the conclusion (the Aktenversendung Institute), the development of the school of glossators, postglossators and humanists directly shaped the trends, determined the rules and system of the Roman private law institutions borrowing and adaptation.Practical significance: the main provisions and conclusions of the article can be used in scientific and pedagogical activities when considering issues related to the study of the Roman law reception and the trends in the European legal systems development.

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Havrylenko, V. V. « International legal standards as a methodological basis for the creation and improvement of national law enforcement systems ». Analytical and Comparative Jurisprudence, n^o 5 (30 décembre 2022) : 395–401. http://dx.doi.org/10.24144/2788-6018.2022.05.73.

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Having declared a firm and irreversible course for European integration, Ukraine continues to increase the pace of bringing its national law enforcement system to modern world and European standards, which is, in turn, a positive and very important indicator of the state's development in a democratic direction. The main guidelines in this process, in addition to national, historical and legal traditions, should be international legal standards that allow building Ukrainian statehood and its legal system openly and transparently in interaction with foreign and international law, by borrowing and using modern progressive foreign legal concepts , doctrines, ideas, generally recognized international principles, norms, standards. The implementation of international legal standards into the Ukrainian national law enforcement system began immediately after the declaration of Ukraine's independence and continued for thirty years, but it is now necessary to accelerate this process by means of a constant and scrupulous search in international legal sources, which become more and more every year more and more, new democratic directions of the functioning of judicial and law enforcement bodies, the latest forms and means of guaranteeing and protecting human rights, freedoms and legitimate interests. In addition to the analysis of the sources of international law, it is necessary to follow the scientific work of well-known foreign and domestic specialists, who in their works can offer modern and effective methods and techniques of borrowing international legal standards in the activities of national law enforcement agencies. This is also a significant way and method of solving the main issue of bringing the Ukrainian law enforcement system up to modern world and European standards. However, there cannot be an ill-conceived and simple mechanical transfer of an international standard or foreign experience of their implementation into national law enforcement systems, since our state is an original country with its own history, culture, mentality, its own way of developing law and legal system, which combine general civilizational and specific , trends peculiar only to Ukraine. In this regard, there is an urgent need to analyze the existing domestic and foreign developments regarding the borrowing of international legal standards as a methodological basis for the creation and improvement of the national law enforcement system, the development of acceptable for Ukraine procedures and mechanisms for the implementation of positive elements of the organization and activity of law enforcement agencies, which determines the need to conduct relevant scientific research.

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Efremova, Nadezda N. « Great, judicial reform as a factor in the formation of legal thinking of the Russian lawyers ». Russian Journal of Legal Studies 6, n^o 3 (1 avril 2020) : 56–61. http://dx.doi.org/10.17816/rjls19109.

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The article analyzes the modern problems of legal professional thinking in modern Russia caused by the transitional state and certain instability of the legislation, changes in the tasks and content of legal education, the pluralism of legal understanding of representatives of different legal schools and areas of jurisprudence, national peculiarities of legal mentality and legal consciousness of the population and the professional community of lawyers. Similar problems, complicated by the immaturity of the legal profession and legal education in the Russian Empire of the pre-reform period, were known in Russian history. The authors comparative legal analysis revealed these similarities and the main factor that determined the way and means of formation of professional legal thinking, in particular, as well as the new legal consciousness of both individual and social, and group (i.e. professional legal community), in General, in the post-reform period. The values of the new organization of justice, the development and defense of their lawyers of the new formation contributed to the solution of these problems. A special role in this process belonged to the new impetus for the development of legal doctrine, based not only on the borrowing of ideas and doctrines of the West, but also the formation of national concepts based on a combination of recognized as universal Western and traditional religious and moral domestic values, characterized by pluralism of approaches to the understanding of law and the state and their relationship. The new judicial legislation, the very creative process of its application, in turn, did not influence the formation of new legal thinking. The legal community was United in professional corporations, both official councils of attorneys at law and informal law societies at universities, which in turn contributed to the promotion of new legal values, combining the efforts of lawyers, practitioners, scientists and teachers. Such cooperation has undoubtedly benefited the jurisprudence of theoretical and practical Study and the use of domestic historical experience in this area can be useful for solving todays problems related to legal thinking.

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Dixon, Rosalind, et David Landau. « Healing Liberal Democracies : The Role of Restorative Constitutionalism ». Ethics & ; International Affairs 36, n^o 4 (2022) : 427–35. http://dx.doi.org/10.1017/s089267942200048x.

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AbstractThis brief essay contrasts two modes of constitutional change: abusive constitutional projects that seek to erode democracy and restorative constitutional projects that aim to repair eroded democratic constitutional orders. Constitutional democracies are eroded and restored via the same mechanisms: formal processes of constitutional amendment and replacement, legislative amendment, changes to executive policies and practices (or respect for conventions), and processes of judicial decision-making. Under the right conditions, abusive uses of these mechanisms for antidemocratic ends can be reversed by prodemocratic or restorative uses. The more difficult question is what kinds of political discourses are most likely to sustain successful processes of democratic rebuilding. In recent work, we have pointed to the role sometimes played by liberal democratic discourses as purported justifications for processes of abusive constitutional change: we label this the rise of “abusive constitutional borrowing.” Less well understood are the kind of discourses likely to sustain successful democratic healing or rebuilding. Often, the most popular discourse is a restorative one, which focuses on repairing damage caused by authoritarians and returning to a constitutional status quo ante. In this essay, we discuss the advantages and disadvantages of restorative constitutionalism as a response to prior episodes of democratic erosion.

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Diyachenko, E. B. « Application of the EAEU law by national courts and development of judicial dialogue ». Law Enforcement Review 6, n^o 4 (25 décembre 2022) : 244–60. http://dx.doi.org/10.52468/2542-1514.2022.6(4).244-260.

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The subject. This article examines the dialogue between the EAEU Court and national courts, on the one hand, as the application by national courts of the court of the integration organization, on the other hand, – as a recourse by the supranational court to the legal constructions that have been developed in the case law of the Member States’ courts.The purpose of the article is to confirm or disprove hypothesis that judicial dialogue between the court of the integration association and the courts of its Member States is the key to the effective application of supranational law.The methodological basis of the research is the doctrine of EU law, as well as the practice of Court of Justice of the European Union. The formal legal interpretation of the EAEU Court decisions and decisions of national Supreme Courts is also used.The main results, scope of application. One of the characteristics that differentiates the law of an integration organization from universal international law is its active application not only by the judicial body of such an organization, but also by the national courts. The plurality of actors in charge of the application of the law raises the question which of them have the authority of interpreting the integration law and the modalities of such an interpretation. One of the instruments that could help overcome the lack of uniformity of approaches regarding the interpretation and application of supranational law by the courts of several member states is the preliminary reference procedure. In the absence of such a procedure the burden of interpretation of supranational law rests on the national courts. Such a situation has arisen in the Eurasian Economic Union where the EAEU Court is empowered to interpret the law of the Union while settling disputes regarding the respect of EAEU law by its Member States, the challenge of the Eurasian Economic Commission's actions (failure to act) and decisions as well as delivering advisory opinions. The courts of the Member States, in turn, interpret the law of the EAEU in various fields of relations, including the ones where regulatory powers have been transferred to the supranational level. The analysis of national case law shows that in their application of EAEU law they premise their judgments on the principle of its primacy over national legislation.Conclusions. Judicial dialogue allows to prevent the non-uniform interpretation of the Union law by the court of the 5 Member States. It is a form of exchange of legal positions and concepts between the judicial bodies which, as a result, leads to a mutual enrichment of the legal orders by borrowing legal constructions and approaches.

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Markovicheva, E. V. « On the Consideration of a Criminal Case Against a Minor by Jury ». Rossijskoe pravosudie 2 (28 janvier 2021) : 90–96. http://dx.doi.org/10.37399/issn2072-909x.2021.2.90-96.

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The functioning of the jury in Russia has demonstrated not only effectiveness, but also a number of problems that need to be resolved. Such problems include the personal jurisdiction of criminal cases by jury. The article reveals the legal positions of the Constitutional Court of the Russian Federation regarding the right of minors to trial a criminal case in a jury. The approaches to solving this issue that have developed in the judicial practice of individual foreign states are analyzed, the main directions for further scientific discussion regarding the right of minors to a jury trial are outlined. The purpose of the article is to disclose various approaches to the administration of criminal justice in the relations of minors with the participation of lay judges. The theoretical basis of the study was Russian and foreign scientific works in the field of criminal procedure law, devoted both to the consideration of criminal cases with the jury, and the specifics of juvenile criminal proceedings. Using the comparative legal research method has allowed to reveal various approaches to the access of minors to jury trials in individual states. In Russian legislation and judicial practice the question of the right of minors to have a criminal case against them considered by a jury remains unresolved. The position of the Constitutional Court of Russia regarding the jurisdiction of such criminal cases is also controversial. The experience of foreign countries indicates that there is no universal way to ensure the right of a minor to a proper court. This issue is decided depending on the type of criminal process, the presence or absence of specialized juvenile courts. Any direct borrowing in this regard cannot be considered effective, but a generalization of foreign experience can create the necessary basis for optimizing both the work of the jury and criminal proceedings against minors.

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Berch, V. V. « THE CONSTITUTIONAL RIGHT TO A JURY TRIAL AND A FAST TRIAL : THE EXPERIENCE OF THE UNITED STATES ». Analytical and Comparative Jurisprudence, n^o 2 (6 juillet 2021) : 11–13. http://dx.doi.org/10.24144/2788-6018.2021.02.2.

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The article is devoted to the consideration of the constitutional right to a trial by a jury, as well as the right to a speedy trial in accordance with the provisions of the Sixth Amendment to the US Constitution. It is noted that as of today in Ukraine there is a question of ensuring the actual (real) participation of the people in the administration of justice and the creation of an appropriate mechanism for the realization of such a right of the people. It is established that the permanent evolution of the jury trial in the world as a full-fledged element of participatory democracy allows us to assert the possibility of applying the best foreign experience in this area and for Ukraine. It is noted that the jury trial, which is typical for the United States, is undoubtedly a consequence of the borrowing of English legal customs, but has its own special features. It has been established that the right to a speedy trial should be distinguished from other constitutional rights, as it concerns the interests of society and the justice system more than the interests of the accused. The circumstances that suggest whether a trial is in fact "fast" are rather vague, as each such proceeding is to some extent unique. The requirements for members of the jury are set out in the Jury Selection Act. It is noted that the release of jurors varies depending on the state. One of the grounds for such dismissal is professional activity. For example, doctors, lawyers, public figures, police or firefighters. At the same time, this practice is gradually ceasing to be natural. It is concluded that the jury trial as a form of public participation in the administration of justice is undoubtedly a democratic legal institution. Direct democracy in the exercise of judicial power, which is carried out in compliance with the principles of publicity and adversarial proceedings promotes the establishment of citizens' faith in the fairness of judicial decisions.

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Dyachenko, S. V., et S. V. Dyachenko. « ELECTRONIC MEANS OF PROOF IN CIVIL PROCESS ». Constitutional State, n^o 42 (7 juillet 2021) : 145–53. http://dx.doi.org/10.18524/2411-2054.2021.42.232417.

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The purpose of the article is to explore the issues of electronic means of proof in the civil process of Ukraine and foreign countries, the problems of application, as well as to identify possible ways to improve them. Relevance of research is due to that the issue of electronic evidence is gaining new importance at the present stage during the rapid development and improvement of electronic means of communication and media which causes the emergence of new theoretical and practical problems in their application. In this regard, a comparative analysis of the legislative consolidation and practice of application of this topic in civil proceedings of foreign countries and Ukraine will provide an opportunity to identify further ways to modernize electronic evidence in general. Also, the problematic issues concerning their application during the trial have not been fully resolved and the peculiarities of other countries have not been singled out. Therefore, effective use of the achievements of scientific and technological progress has become an important issue in the judiciary due to the continuous computerization and informatization. The methodology includes a comprehensive analysis and generalization of available scientific and theoretical material and the formulation of relevant conclusions and proposals. The following general scientific methods of cognition were used during the research: dialectical, terminological, logical-semantic, system-structural, logical-normative, comparative. The issues of legislative regulation of electronic evidence in Ukraine and other countries, their key differences, as well as the author’s ways to improve electronic evidence by borrowing best practices from other countries, including the United States. Problematic aspects of legislative consolidation of electronic evidence have been identified, the possibility of introducing forensic methods into the civil process to establish the authenticity of the provided electronic evidence and application of the blockchain system in order to prevent their destruction has been assessed. The current legal positions from judicial practice were given and analyzed on the issues under consideration. The results of the study can be used in lawmaking and law enforcement activities for the use of electronic evidence in civil proceedings.

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Dolzhikov, Aleksei. « Is it time to understand Russia rationally ? Test of suitability in constitutional adjudication ». Sravnitel noe konstitucionnoe obozrenie 29, n^o 6 (2020) : 79–114. http://dx.doi.org/10.21128/1812-7126-2020-6-79-114.

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The author discusses the application of the suitability test in constitutional adjudication. Then he puts forward a thesis that in comparison with the essentially philosophical categories of reasonableness and rationality, this prong of proportionality principle has practical value in judicial review of legislation. The political system has to meet the minimum standards of a deliberative democracy in order courts could use the doctrine of rationality. Among such standards are: recognition of the diversity of ideologies, real competition between political parties and other groups, a serious attitude towards discussion in society, etc. High courts, even in countries with long democratic traditions, usually use the self-restraint technique in reviewing the reasonableness of statutes. In illiberal and populist regimes, due to the unification of public discourse and the imitation of democratic institutions, the challenging of reasonableness of majority decisions can be dangerous. The argument on absurdity of legislation is relatively rare in the case-law of the Constitutional Court of the Russian Federation. It can be found in the dissenting opinions of constitutional judges. In regard with the recent legislative ban on the publication of these opinions, the reasoning ad absurdum has rather theoretical significance for constitutional adjudication in Russia. Moreover, criticism of the reasonableness of legislation can now create additional obstacles for the difficult dialogue of the Russian Constitutional Court with the parliament and other “political” branches. An alternative to critically reviewing the unreasonableness of parliamentary decisions in constitutional adjudication are both the borrowing of economic methodology and certain principles of Legisprudence. The author puts forward the argument on utility of these principles on the judicial review of the ability of legislative means to achieve public goals. Suitability has an empirical nature and requires scientific validity of statutes. Selection of regulatory measures should be evidence-based and grounded on outcomes of research. Usually, constitutional judges do not have special knowledge of complex issues of socio-economic policy. More often than not, the absence of such an expertise means deference to the parliamentary and administrative fact-finding, which predetermined the normative decision. The intensity of the review of the suitability of legislation can be increased in those areas where constitutional judges have the necessary expertise or practical background. Constitutional tribunals recognize the broad discretion of representative bodies in forecasting the social, economic and other consequences. Otherwise, the intervention of judges in the goal-setting of regulatory policy is inevitable. Forecasting can be inaccurate and even erroneous due to the targeting of the regulatory decision for the future. A second-guess of the legislative forecast in constitutional adjudication is an exception to the general rule. It is possible due to newly discovered circumstances, changes taking place in society or progress in science. The implementation of regulatory impact assessment in law-making does not replace, but supplements the judicial review of the principle of proportionality. Consistency test in constitutional adjudication is closely related to the principle of legal certainty, which in turn excludes inconsistency and contradictions of legislative measures with public aims. The consistency approach obliges the members of parliament to be logical in the implementation of the legislative intent. Otherwise, citizens’ legitimate expectations in the governmental policy are undermined. The suitability test has an applied meaning in discrimination cases. If unequal treatment affects the fundamental rights of truly vulnerable social groups, constitutional judges could increase the intensity of judicial review of unreasonable laws.

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Gong, Nan, et I. I. Fedorov. « Historical evolution of the judicial system of Ancient Russia in the aspect of customary law ». Legal Science in China and Russia, n^o 4 (16 septembre 2021) : 126–31. http://dx.doi.org/10.17803/2587-9723.2021.4.126-131.

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The formation of the Russian procedural legal system is closely connected with its unique historical evolution. Russian Russian culture According to the Norman theory of the origin of the Russian nation, the Scandinavian culture is the most important source of early Russian culture. During the chaotic period of the tribe at the stage of primitive society, the Norman Varian was invited to Russia to reconcile the tribes of Russia and manage them, and this brought the Germanic custom to regulate the socio-economic and legal relations of various tribes. Since the formation of the ancient state of Russia, the ruling class has constantly strengthened the drafting of new laws and regulations, but customary law still dominates the legal system of the state. At the same time, ordinary norms in the system of customary law as a quasi-legal norm between morality and law have become an integral organic component of social customs and norms at all stages of Russian social development.During the period of Ancient Russia, the common custom of the Slavic people and the Norman Customary Law had a profound impact on the social life of ancient Russia. From the beginning of the 9th to the 17th century, customary law existed as the main legal source for regulating social relations in the late period of the development of Russian primitive society and in the earlier time of feudal society. His coercive force was based on the conviction that was widespread in the social community during this period, that is, "existing customs denote a reasonable basis". With the formation of the East Slavic state, the rulers began to work on drafting new legal norms, but inheritance is still mainly based on customs based on the clan system. As a result, as a rule of conduct recognized and guaranteed by the state, traditional customs gradually acquired a legal nature, and after that, positive law was formed. "Russkaya Pravda" is the most representative legal collection in the early years of the Russian feudal society, "The Truth of Ross", which was compiled according to the customs of the Eastern Slavs, and is the very fi rst positive law of ancient Russia.Before the appearance of formal law, customary law always played a role and coercive force as legislation, but the self-defense and insane methods of revenge obtained from it also caused social unrest. In order to stop personal self-defense and self-arbitrariness, as well as to strengthen ties between different regions, it is necessary to use the power of common law to unite the Principality into a whole. Although the new law does not exclude the original good customary norms, if there are no necessary penalties for violations, it will be destructive for the law. Therefore, it is necessary to give customary law a legal meaning and a compelling force, without changing the existing content of customary law.I must say that the German customs and the traditional customs of the Slavic people are intertwined in the historical codifi cation of Russian procedural law, forming a unique historical path of development of the procedural legal system of ancient Russia. Although national customs were recognized by the state in the form of positive law with the help of " Russian Truth”, and became the norm of justice and social norm on the basis of the guarantee of national coercive force, but this did not change the essence of customary law, but the form of positive law was given to it. As the modernization of the Russian judicial system moves into modern times, generations of legislators and lawyers are focusing on the study of national legal traditions and history, trying to discover the natural laws governing the development of the Russian legal system, and are constantly trying to make progress in the modern and modern process of judicial reform. The harmony of legislation, the borrowing of laws and national customs to a certain extent ensured a reasonable adjustment of national laws and norms of customary law.

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Dimitrijević, Marko. « State immunity for economic activities : Example of an odious public debt ». Zbornik radova Pravnog fakulteta Nis 59, n^o 88 (2020) : 55–70. http://dx.doi.org/10.5937/zrpfn0-28256.

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The subject matter of analysis in this paper are the essential features of an odious public debt (loan) in contemporary monetary law. In this context, the first part of the paper focuses on the concept and basic functions of the public debt in the theory and practice of monetary management, where the author discusses the basic principles of public borrowing that ensure timely servicing of overdue monetary obligations and support fiscal responsibility and credibility of public loan subscribers. The second part of the paper deals with the concept of an odious public debt emission and its correlation with the state immunity for undertaking economic activities, which are indisputable in the field of fiscal and financial sovereignty but it raises the issue of responsibility of the public monetary agents (central banks and public debt management agencies) for the harm they may cause to others in their work. In particular, the analysis focuses on the need for a more extensive use of the doctrine of odious public debt as a means of protecting the creditors from subscribing to the so-called "odious" bonds of dictatorial state regimes. The author also points to the need for establishing an international judicial forum which would have the authority to prevent the effects of an odious public debt in a timely manner by ensuring an early detection of mala fides by the debtor state or extend the necessary period for examining such intentions prior to the conclusion of the contract. In the author's view, this is a vital condition for the effective operation of credible public debt management policies.

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Dixon, Rosalind, et Amelia Loughland. « Comparative constitutional adaptation : Democracy and distrust in the High Court of Australia ». International Journal of Constitutional Law 19, n^o 2 (1 avril 2021) : 455–75. http://dx.doi.org/10.1093/icon/moab036.

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Abstract The ideas developed by Ely in Democracy and Distrust have had an important influence on at least one member of the High Court of Australia—Justice Stephen Gageler, first as counsel and now as a justice of the Court. This influence has not involved the straightforward “borrowing” of those ideas. Rather, it has involved a more standard-like application of US-style tiered scrutiny in contexts such as the protection of the “channels of political change” and giving narrower ambit to the judicial protection of “discrete and insular minorities.” This, the article suggests, reflects a distinctive form of comparative constitutional adaptation—a process involving, first, the attempt to develop a contextual understanding of Ely’s thought; second, a quite “thick” or “deep” form of comparison between the original and new context; and third, a context-sensitive adaptation of the theory to that new setting. This comparative adaptation has some similarity to the process of “recontextualization” identified in Gunther Frankenberg’s account of an “IKEA” style of global constitutional transfer. But it is distinctive in its direct engagement with foreign constitutional ideas at their source and its attention to the importance of constitutional context, difference, and generality or commonality. Similar forms of comparative constitutional adaptation can be found elsewhere, including in the engagement by Australian Chief Justice, Susan Kiefel, in the development of proportionality doctrines. But attention to Ely’s influence on Justice Gageler’s thought provides a useful window not only into Australian constitutional practice, but also into this distinctive and normatively attractive form of comparative engagement.

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Putri, Lisa Balqis Mega, et Mas Anienda Tien F. « Juridic Analysis Of Revocation Of Homology For Delaying Debt Payment Obligations (Case Study between PT. X and PT. Y) ». LIGAHUKUM 2, n^o 1 (23 juillet 2021) : 01–10. http://dx.doi.org/10.33005/ligahukum.v2i1.51.

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In the business world, of course, can experience ups and downs in corporate earnings. Not always the company always gets a profit, but there are times when the company suffers losses that ultimately have an impact on the velocity of money in the company. This triggers debts that must be done by the company in order to continue to run the company properly. Borrowing funds or money made by a company can be through a bank or a fellow company. If there is an agreement from the two companies, the debt-receivable transaction can run properly. There are times when companies that become debtors again experience problems that result in not being able to pay their debts in a timely manner in accordance with the agreement between them. That caused the company that became a creditor to make legal efforts to continue to receive payment of money. Both the debtor and the creditor can submit a Deferment of Obligation for Debt Payment (PKPU) to settle debts between them. Both the debtor and the creditor can submit a Deferment of Obligation for Debt Payment (PKPU) to settle debts between them. Despite these efforts, it still cannot avoid other problems. Problems usually occur after the approval of the peace plan (Homologation) which is included in the Delayment of Obligations of Debt Payments that ends in the withdrawal of the peace carried out by the Commercial Court. Although it has been revoked, those who feel dissatisfied with the results of the decision can take legal action through cassation and judicial review through the Supreme Court. Problems usually occur after the approval of the peace plan (Homologation) which is included in the Delayment of Obligations of Debt Payments that ends in the withdrawal of the peace carried out by the Commercial Court. Although it has been revoked, those who feel dissatisfied with the results of the decision can take legal action through cassation and judicial review through the Supreme Court. The purpose of this research is to know the role of peace Treaty (Homologasi) in the application of postponement of debt payment obligation (PKPU) PT. X. And also to know the consequences incurred if the peace treaty (homologation) was canceled by the judge against the payment of PT. X debt. Using the juridical-normative method of supporting this research report.

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Kopylov, Andrey Yu. « On the features of civil liability for the illegal use of images of fictional characters as objects of copyright ». Vestnik Tomskogo gosudarstvennogo universiteta, n^o 478 (2022) : 226–35. http://dx.doi.org/10.17223/15617793/478/27.

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Theoretical and practical issues of civil liability of business entities that use images of fictional characters, mainly from feature films, without having the appropriate permission from the copyright holders, have been studied. The author has established that the illegal use of images of characters, as a rule, is associated with the production of goods whose packaging or appearance embody well-known fictional images. Consumers are subconsciously guided by these images and form demand necessary to increase sales. The infringer, embodying the images of famous characters protected both by copyright and as part of trademarks in goods and on their packaging, significantly reduces their costs due to non-payment of a license fee to the right holder and thereby reduces prices for these goods. The actual damage may be the costs of the right holder, which they have incurred or will inevitably incur when restoring their violated right. These costs can be incurred when making test purchases of counterfeit goods on which cartoon characters are placed, upon receipt of information fixing relevant violations, information on sales volumes of counterfeit goods, etc. Losses caused by violation of the exclusive right to depict a fictional character may also be expressed in the form of lost profits. Such a loss may manifest itself either in the failure of the right holder to receive remuneration for its illegal use, or in the failure to receive income from the independent use of the character in the implementation of certain entrepreneurial activities. If it is proved that the illegal user received income in a certain amount as a result of such a violation, then the right holder has the right to demand compensation, along with other losses and lost profits, in an amount not less than the income received by the violator. From the analysis of the judicial practice widely presented in this article, it follows that the most common way to protect violated exclusive rights to images of fictional characters is to claim monetary compensation, which is a borrowing from the Anglo-American legal order with its institution of statutory damages. The article analyzes the judicial practice related to the application of this sanction, notes its main shortcomings and concludes that the explanations of the Supreme Court of the Russian Federation in this part are rather superficial, not presented systematically and contradict the doctrinal provisions of the science of civil law. The author concludes that, to eliminate this shortcoming and to implement the principles of justice, equality of participants in civil relations, it is necessary to exclude the lower threshold of compensation from these norms.

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Насонов, Сергей, et Syergyey Nasonov. « THE EUROPEAN PROCEDURAL MODELS IN JURY TRIALS : JURY TRIAL IN BELGIUM (COMPARATIVE LEGAL RESEARCH) ». Journal of Foreign Legislation and Comparative Law 2, n^o 4 (5 septembre 2016) : 0. http://dx.doi.org/10.12737/21259.

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The article is devoted to the peculiarities of the procedural rules in the jury administered in Belgium in compliance with the Rules adopted in 1878 (with amendments of 2016) as a type of a European model procedure. These features are considered in the comparative legal aspect, in comparison with the same procedure that of the Russian CCP. The article notes that the requirements for candidates for jurors, enshrined in the Code of Criminal Procedure of Belgium, in general, are similar to the Russian requirements. The procedure of drawing up lists of candidates for jury service in Belgium has significant similarities with the Russian, as there is the absence of open (transparent) procedures, which is compensated by the publication of the lists. Features of the Belgian procedure of selecting the jury manifested in the establishment of the rule of gender proportions of the panel, which is not typical for the Russian legislation and practice. The proceeding in the jury trial in Belgium is an example of the continental type of this form of proceeding and its significant differences from the same procedure, enshrined in the Russian CCP are based on this factor. The presiding judge has broad discretion in the field of proving, as all questions set by the parties for interrogated persons are asked through him. The features of the judicial enquiry in jury in Belgium are: the presentation of an indictment and defense objections to the jury, the prohibition to the parties to put questions to the defendant, an extensive research of the personal information of the defendant before the jury. The article notes the specifics of the stages of putting the questions to jury, of charging the jury (the presiding judge don’t address the facts of the case), of the jury deliberations, as jury is obliged to motivate the verdict. The article suggests the possibility of the borrowing of the certain elements of the Belgian model of proceeding into a jury trial of the Russian legislation.

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Boiaryntseva, M. A. « PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE ». Actual problems of native jurisprudence, n^o 4 (30 août 2019) : 116–20. http://dx.doi.org/10.15421/391925.

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In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

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Vennikova, V. V. « Disputes in the sphere of social security : ways of prevention, essence and methods of resolution in the countries of the European Union ». Analytical and Comparative Jurisprudence, n^o 3 (28 septembre 2022) : 98–102. http://dx.doi.org/10.24144/2788-6018.2022.03.17.

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The article examines the European experience of considering disputes in the field of social security, the ways of their prevention, the essence and methods of resolution, the possibility of borrowing positive assets of foreign states in the law enforcement practice of Ukraine is considered. Having analyzed the European experience of resolving disputes in the field of social security, three ways of their possible settlement are distinguished: 1) with the help of special courts on social security issues (sectoral justice); 2) through a civil process in general courts; 3) by means of conciliation and arbitration procedures. It was determined that a social model has developed in European countries, which is based on such values common to all EU member states, such as: a close connection between the level of economic development and social progress; high level of social security, which is universal in nature; developed legislation; equal opportunities and fight against discrimination; production democracy; dialogue of social partners within the framework of contractual relations; availability of developed social infrastructure; the key role of the state in solving social problems; the struggle for employment and eradication of the phenomenon of social rejection and poverty; decent salary; social justice and solidarity in society. These basic values also formed the basis of consideration and resolution of disputes in the field of social security. The listed values should form the foundation of the Ukrainian theory and practice of social disputes. It was determined that the national specifics and practice of each European state provide for the use of various methods of resolving social disputes with recourse to social courts, reconciliation services, mediation, arbitration and mediation. The activity of social courts is based on the principles of tripartite cooperation (tripartism). Court cases are considered by a panel consisting of a professional judge and two non-professional judges. In addition, state mediation and mediation are effective measures for the pre-trial resolution of social disputes in the EU countries. They contribute to the relief of the judicial system, saving time and financial resources of the parties to the dispute. These institutions are little known for Ukraine and, at the same time, promising.

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Maciejewski, Jędrzej. « Book Markets in Europe : Facing the Challenges of the Digital Single Market ». Comparative Economic Research. Central and Eastern Europe 22, n^o 2 (18 juillet 2019) : 173–87. http://dx.doi.org/10.2478/cer-2019-0019.

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The aim of this article is to identify the challenges created by digitalization and the Digital Single Market for book markets in Europe. The research questions are, on the one hand, related to the nature of these challenges and the impact they have on European book markets, and on the other hand, the impact of the activities of EU institutions. This leads to the hypothesis that the digitization challenges that the book markets in Europe are facing are of a technological, economic, legal, political and judicial nature. Therefore, the key research method will be an analysis of these challenges and the (re)actions (under)taken by EU institutions. The book market in Europe is characterized by diversity and fragmentation in comparison with, for example, the American market, and is losing its share in the global book market with the development of book markets in emerging markets. Over the last decade, it shrank between 2008 and 2013 and started to rise again after 2014. In contrast to the European book market, the Polish book market is gradually decreasing. The e‑book market, which developed dynamically between 2009 and 2014 (often at the expense of paper books), reached the level of about 6–7% of the entire book market in Europe. To meet the challenges of the ongoing digitization, the European Union has started to implement the Digital Single Market Strategy, which also affects the European book market through the directives and regulations adopted as part of the Strategy. European copyright law, by introducing exceptions and limitations, implemented to varying degrees in individual member states, affects the business models of European publishers. In addition, the activities of authors and publishers is influenced by the case law of the Court of Justice of the European Union (CJEU). Therefore, EU institutions, through the directive on copyright in the Digital Single Market, are trying to create an appropriate legal framework for out‑of‑commerce works or confirm the right to fair compensation for publishers. A separate issue remains e‑lending, which is related to the possibility of borrowing e‑books. The development of the e‑book market was limited by different VAT rates of print and digital books, which was finally resolved by the European Parliament and the Council in 2017–2018. European institutions have an impact on the book market in Europe, where the European Commission has recently been trying to solve problems resulting from the interpretation of existing directives by the CJEU.

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Nikolayets, V. « Bulgarian experience on the legal regulation of examples and types of cases in administrative judiciary ». Social Law, n^o 3 (6 novembre 2019) : 67–69. http://dx.doi.org/10.37440/soclaw.2019.03.11.

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In the article the specifics of Bulgaria's experience in the legal regulation of model and typical cases in administrative proceedings are analyzed. The peculiarities of administrative and legal regulation of the specified sphere are revealed. Proposals for borrowing from the national legislation the positive experience of Bulgaria on the legal regulation of model and typical cases in administrative justice are formulated.

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Barnes, Wayne. « Hadley v. Baxendale and Other Common Law Borrowings from the Civil Law ». Texas Wesleyan Law Review 11, n^o 2 (mars 2005) : 627–48. http://dx.doi.org/10.37419/twlr.v11.i2.20.

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Is this recognition deserved? To some extent, inarguably it is. But is the judicial "inventiveness" ascribed to the Hadley court fully warranted? Was it created out of whole-cloth by ingenious practitioners of the common law? This Article seeks to answer that question, though the title perhaps eliminates any attempt at suspense, for the civil law was most assuredly referenced for the Hadley rule. After this initial introduction, Part II of this Article will discuss the facts and holding of the Hadley case, and describe fully the civilian sources for the rules announced by the Hadley court. Part III will discuss generally the concept of legal transplants, and the interrelation between the development of a particular legal rule and the context of the society in which it is promulgated. Part IV will present, by way of illustration and example only, a handful of other instances in which Anglo-American courts have borrowed from the civil law for purposes of "creating" new common law doctrine. Part V will offer some concluding remarks.

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Fokov, A. P. « THE CODIFICATION OF CIVIL LAW IN THE PEOPLE'S REPUBLIC OF CHINA (GENERAL PROVISIONS) : HISTORY AND MODERNITY ». Proceedings of the Southwest State University 22, n^o 2 (28 avril 2018) : 128–35. http://dx.doi.org/10.21869/2223-1560-2018-22-2-128-135.

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In this article, the author highlights the main historical stages of the codification of civil legislation in China, reveals the content of the "General provisions of the civil code of the PRC", which entered into force on October 1, 2017, predicts further prospects for the development of Chinese civil law institutions in modern economic conditions The author analyzes the historical stages of codification of a large array of Chinese civil legislation in the twentieth and early TWENTIETH centuries, shows its focus on borrowing Russia's experience in codification and improvement of civil legislation, and also takes into account international obligations related to the participation of the state in the WTO. The current doctrine that the Civil code is a kind of economic Constitution that is constantly evolving, not only in time but also in space, shows that in China the process of reforming civil legislation is slow and haste. Thus, it is significant that the procedures related to the preparation, discussion and adoption of the civil code of the PRC have historically developed over time: from the past to the present and, of course, to the future with the prospect of solving new social and economic problems on the basis of stable codified laws. Until now, the science of Russian civil law has not received full coverage of the processes of reforming the civil legislation after the formation of the people's Republic of China in 1949, and there is no answer to the legitimate question of, and for what reason have not been adopted by scientists developed the Draft Civil code of China (1954), (1962), (1979), (2002)? The author understands the complexity of the topic, but also draws attention to the fact that in recent years, between civil scientists and practitioners of China and Russia there is a tendency to intensify the development of General provisions and institutions of civil law in the context of international cooperation. But the question of whether it is possible to identify the stages of codification of the civil legislation of Russia and China is still open, because the historical features of China, the mentality of its citizens and traditions do not allow full use of the experience of Russia, which at one time proposed a new unified text of the Civil code in the context of WTO accession. The author focuses not only on the problems of understanding the historical stages of reforming China's civil legislation in time, but also its features in the space, when the codification of the General part and institutions of civil law is under the influence of the formation of a common judicial practice in a market economy. In the course of the research the author used analytical, formal and legal methods, abstraction method, which allowed to formulate conclusions on the conducted research. The author comes to the conclusion that the codification of civil legislation in China has a common historical relationship with Russia, but at the same time, and distinctive features, which are expressed in the content of the "General provisions of the civil code of the PRC" (hereinafter - the civil code of the PRC), which entered into force on October 1, 2017.

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Deb, Rajat. « Corporate Tax Cuts and Fiscal Slippage ». Indian Economic Journal 68, n^o 2 (juin 2020) : 281–89. http://dx.doi.org/10.1177/0019466220950901.

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The Union Finance Minister on 20 September 2019 announced the highest corporate tax rate cuts in the last 28 years as a level-playing field for both the existing and green-field firms for turning around the sluggish economy. The stimulus package, notwithstanding, has likely to accelerate the demand in the short run, but to increase the fiscal deficit inasmuch, the government would increase its spending through borrowings, which could lead to fiscal slippage. Instead of excessive dependence on the fiscal measures, the government should initiate economic and judicial reforms for accelerating the growth and improving doing business in the country.

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Юдин, А. В. « Law Institute of the Samara National Research University named after Academician S.P. Korolev ». Вестник Арбитражного суда Московского округа, n^o 2 (15 juillet 2022) : 51–64. http://dx.doi.org/10.46279/asmo.2022.93.98.002.

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В НАСТОЯЩЕЙ РАБОТЕ РАССМАТРИВАЕТСЯ ВОПРОС О ЗНАЧЕНИИ ДОКАЗАТЕЛЬСТВЕННЫХ АКТОВ, НАХОДЯЩИХСЯ В ДРУГИХ ДЕЛАХ, РАССМАТРИВАЕМЫХ ИЛИ УЖЕ РАССМОТРЕННЫХ СУДАМИ ОБЩЕЙ ЮРИСДИКЦИИ ИЛИ АРБИТРАЖНЫМИ СУДАМИ. АВТОР ЗАДАЕТСЯ ВОПРОСОМ О ТОМ, НАСКОЛЬКО ПРАВОМЕРНЫМ ЯВЛЯЕТСЯ ПРЯМОЙ ПЕРЕНОС ДОКАЗАТЕЛЬСТВ, ИХ ЗАИМСТВОВАНИЕ ИЗ МАТЕРИАЛОВ ОДНОГО ГРАЖДАНСКОГО ДЕЛА ИЛИ ЭКОНОМИЧЕСКОГО СПОРА В МАТЕРИАЛЫ ДРУГОГО ДЕЛА; НЕ ПОТРЕБУЮТ ЛИ ТАКИЕ ДОКАЗАТЕЛЬСТВА СВОЕГО РОДА ЛЕГАЛИЗАЦИИ В ДРУГОМ ПРОЦЕССЕ. ПОСТАВЛЕННАЯ ПРОБЛЕМА НЕ МОЖЕТ БЫТЬ РЕШЕНА С ОПОРОЙ НА ПРАВИЛА О ПРЕЮДИЦИАЛЬНОСТИ СУДЕБНЫХ АКТОВ, ПОСКОЛЬКУ ПРАВИЛА О ПРЕЮДИЦИИ НЕ ПРЕДРЕШАЮТ ОЦЕНКУ ДОКАЗАТЕЛЬСТВ, В ТОМ ЧИСЛЕ ИСПОЛЬЗУЕМЫХ ПО ДРУГОМУ ДЕЛУ. В СИЛУ ПРАВИЛ СВОБОДНОЙ ОЦЕНКИ ДОКАЗАТЕЛЬСТВ СУД МОЖЕТ ДАТЬ И ИНУЮ ОЦЕНКУ ДОКАЗАТЕЛЬСТВАМ, ИСПОЛЬЗОВАННЫМ РАНЕЕ В ДРУГОМ ДЕЛЕ. АВТОР РАЗДЕЛЯЕТ ВСЕ ИМЕЮЩИЕСЯ ДОКАЗАТЕЛЬСТВА НА ДВЕ ГРУППЫ: ДОКАЗАТЕЛЬСТВА, КОТОРЫЕ, БУДУЧИ ПРЕДСТАВЛЕННЫМИ В МАТЕРИАЛЫ ГРАЖДАНСКОГО ДЕЛА ИЛИ ЭКОНОМИЧЕСКОГО СПОРА, ВПОСЛЕДСТВИИ МОГУТ БЫТЬ ТИРАЖИРОВАНЫ НЕОГРАНИЧЕННОЕ ЧИСЛО РАЗ БЕЗ ПОТЕРИ ИХ ДОКАЗАТЕЛЬСТВЕННЫХ КАЧЕСТВ ПО ДРУГИМ ДЕЛАМ, И ДОКАЗАТЕЛЬСТВА, КОТОРЫЕ ПРЕТЕРПЕВАЮТ ИЗМЕНЕНИЕ СВОЕГО КАЧЕСТВА В РЕЗУЛЬТАТЕ СОВЕРШАЕМЫХ ПРОЦЕССУАЛЬНЫХ ДЕЙСТВИЙ В СФЕРЕ ДОКАЗЫВАНИЯ. ОСНОВНАЯ ПРОБЛЕМА КАСАЕТСЯ ДОКАЗАТЕЛЬСТВ, ОТНОСЯЩИХСЯ КО ВТОРОЙ ГРУППЕ, КОТОРЫЕ ПРЕДЛАГАЕТСЯ ОЦЕНИВАТЬ В КАЧЕСТВЕ ПИСЬМЕННЫХ ДОКАЗАТЕЛЬСТВ, ЛИБО В КАЧЕСТВЕ ИНЫХ ДОКУМЕНТОВ И МАТЕРИАЛОВ. В ЛЮБОМ СЛУЧАЕ, БУДУЧИ ПРЕДСТАВЛЕННЫМИ В МАТЕРИАЛЫ ДРУГОГО ДЕЛА, ТАКИЕ ДОКАЗАТЕЛЬСТВА УТРАЧИВАЮТ СВОЕ НОМИНАЛЬНОЕ ДОКАЗАТЕЛЬСТВЕННОЕ ЗНАЧЕНИЕ, ЧТО, ОДНАКО, НЕ ИСКЛЮЧАЕТ ПОВТОРНОЕ ВОСПРОИЗВЕДЕНИЕ ТАКИХ ДОКАЗАТЕЛЬСТВ СУДОМ ЗА СЧЕТ ПРОВЕДЕНИЯ НОВЫХ ПРОЦЕДУР ИХ ИССЛЕДОВАНИЯ И ОЦЕНКИ. В РАБОТЕ ЗАТРАГИВАЕТСЯ ПРОБЛЕМА ДОПУСТИМОСТИ РАЗЛИЧНОЙ ОЦЕНКИ ОДНИХ И ТЕХ ЖЕ ДОКАЗАТЕЛЬСТВ, ИМЕЮЩИХСЯ В РАЗНЫХ ДЕЛАХ. ТАКАЯ ОЦЕНКА, БЕЗУСЛОВНО, ВОЗМОЖНА, ОДНАКО ПРИЧИНЫ ИЗМЕНЕНИЯ СОДЕРЖАНИЯ ДОКАЗАТЕЛЬСТВА, ПРИВЕДШИЕ К РАЗЛИЧНОЙ ЕГО ОЦЕНКЕ ПО РАЗНЫМ ДЕЛАМ, МОГУТ ПОТРЕБОВАТЬ РЕАКЦИИ СО СТОРОНЫ СУДА. В РАБОТЕ ЗАТРАГИВАЮТСЯ ТАКЖЕ ВОПРОСЫ СОБИРАНИЯ, ПРЕДСТАВЛЕНИЯ И ИССЛЕДОВАНИЯ ДОКАЗАТЕЛЬСТВ, ИМЕЮЩИХСЯ В ДРУГОМ РАССМАТРИВАЕМОМ ДЕЛЕ ИЛИ В ДЕЛЕ, ЗАВЕРШЕННОМ ПРОИЗВОДСТВОМ. THIS WORK DISCUSSES THE QUESTION OF THE SIGNIFICANCE OF EVIDENTIAL ACTS IN OTHER CASES CONSIDERED OR ALREADY CONSIDERED BY COURTS OF GENERAL JURISDICTION OR ARBITRATION COURTS. THE AUTHOR ASKES A QUESTION ABOUT WHAT IS THE DIRECT TRANSFER OF EVIDENCE, THEIR BORROWING FROM THE MATERIALS OF ONE CIVIL CASE OR ECONOMIC DISPUTES TO THE MATERIALS OF ANOTHER CASE IS LEGAL; WILL SUCH EVIDENCE REQUIRE A TYPE OF LEGALIZATION IN ANOTHER PROCESS. THE posed PROBLEM CANNOT BE SOLVED BASED ON THE RULES ON PREJUDICATION OF JUDICIAL ACTS, BECAUSE THE RULES ON PREJUDICE DO NOT PREJUDICATE THE EVALUATION OF EVIDENCE, INCLUDING THE EVIDENCE USED IN ANOTHER CASE. UNDER THE RULES OF FREE ASSESSMENT OF EVIDENCE, THE COURT MAY ALSO MAKE A DIFFERENT ASSESSMENT OF EVIDENCE PREVIOUSLY USED IN ANOTHER CASE. The author divides all available evidence into two groups: evidence, which, being presented in the materials of a civil case or economic dispute, subsequently, an unlimited number of times can be replicated without the loss of their evidence in other cases, and evidence that undergoes a change in their quality as a result of the resulting PROCEEDING ACTIONS IN THE SPHERE OF EVIDENCE. THE MAIN PROBLEM CONCERNES THE EVIDENCE RELATED TO THE SECOND GROUP, WHICH IS PROPOSED TO BE EVALUATED AS WRITTEN EVIDENCE OR AS OTHER DOCUMENTS AND MATERIALS. IN ANY EVENT, WHEN PROVIDED IN ANOTHER CASE, SUCH EVIDENCE LOSE ITS NOMINAL EVIDENCE VALUE, WHICH, HOWEVER, DOES NOT EXCLUDE THE COURT'S RE-REPRODUCTION OF SUCH EVIDENCE THROUGH NEW EXAMINATION PROCEDURES. THE WORK AFFECTS THE PROBLEM OF ADMISSIBILITY OF DIFFERENT EVALUATION OF THE SAME EVIDENCE AVAILABLE IN DIFFERENT CASES. SUCH ASSESSMENT IS CERTAINLY POSSIBLE, HOWEVER, THE REASONS FOR CHANGING THE CONTENT OF EVIDENCE LEADING TO ITS DIFFERENT ASSESSMENT IN DIFFERENT CASES MAY REQUIRE A REACTION FROM THE COURT. THE WORK ALSO AFFECTS THE COLLECTION, PRESENTATION AND STUDY OF EVIDENCE AVAILABLE IN ANOTHER CASE PRESENT OR IN A CASE COMPLETED WITH PROCEEDINGS.

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Zhou, Han-Ru. « Legal Principles, Constitutional Principles, and Judicial Review ». American Journal of Comparative Law 67, n^o 4 (décembre 2019) : 899–930. http://dx.doi.org/10.1093/ajcl/avz028.

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Abstract Principles form part and parcel of our law and legal discourse, so much so that we seldom think of what they are and what they entail. For centuries they have been invoked daily to interpret and argue about the law. But when it comes to matters of constitutional law, principles are further called upon to perform a perennially controversial function: to help police the boundaries of state action. In most common law jurisdictions with a written constitution, this function of principles runs against the generally accepted view that the exercise of judicial review must ultimately be governed and restricted by the terms of the national constitution. This Article argues that the exercise of judicial review based on principles is not confined to that view, once the relationship between principles and the constitution is unpacked and recontextualized. While the English-language literature on principles over the past half-century has been dominated by a select group of Anglo-American scholars, there is a wealth of untapped insights from other parts of the world. One of the major contributions by continental legal theorists even predates the earliest modern Anglo-American writings on the subject by more than a decade. Overall, the law literature in common law and civil law systems reveals a significant degree of commonalities in the basic characters of principles despite the absence of initial evidence of transsystemic borrowings. The wider conceptual inquiry also displays a shift in the focus of the debate, from the protracted search for a clear-cut distinction between rules and principles towards a redefinition of principles’ relationship with “written” law, be it in the form of a civil code or a constitutional instrument. From this inquiry reemerge “unwritten” principles not deriving from codified or legislated law although they have been used to develop the law. Translated into the constitutional domain, these unwritten principles bear no logical connection with the terms of the constitution. Their main functions cover the entire spectrum from serving as interpretive aids to making law by filling gaps. The theoretical framework fits with an ongoing four-century-old narrative of the evolution of constitutional principles and judicial review across most common law-based systems. Constitutional principles are another area where Anglo-American law and legal discourse is less exceptional and more universal than what many assume. Throughout modern Western history, legal battles have been fought and ensuing developments have been made on the grounds of principles. Our law and jurisprudence remain based on them.

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Tent, Jan. « A profile of the Fiji English lexis ». English World-Wide 22, n^o 2 (31 décembre 2001) : 209–45. http://dx.doi.org/10.1075/eww.22.2.03ten.

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The vocabulary of Fiji English is one of its most distinguishing features. English has a profound influence upon the lives of all Fiji Islanders — it is the principal language of government, the judiciary, education and commerce. This paper examines some of the sources and features of the Fiji English lexis, the most common of which include: borrowings, reborrowings, calques, new coinages, semantic shifts, archaisms, and hybrid compounds. It also outlines some of the lexical affinities with and divergences from other varieties of English.

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Олег Геннадійович Данильян et Олександр Петрович Дзьобань. « THE VIRTUALNESS IS IN SOCIAL ENVIRONMENT : SPATIAL MODUS ». Bulletin of Yaroslav Mudryi National Law University. Series:Philosophy, philosophies of law, political science, sociology 1, n^o 48 (9 mars 2021) : 34–50. http://dx.doi.org/10.21564/2075-7190.48.224377.

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Problem setting. An identity is formed and develops on a border social and personal realities, by submitting a soba their contradictory unity the study of that helps social philosophy to expose the features of life of modern society. For the study of virtuality the analysis of totality of spatially-judicial descriptions of authentication is needed, that will allow to overcome the context of her opening out in the conditions of virtualization of society, when the potential prevails above available. Life is impossible out of time and space, it has specific spatial descriptions. Recent research and publications analysis. Despite the growing interest in the study of the virtual, in modern scientific discourse there is still no unambiguous interpretation of the term "virtual reality": it is understood as an artificial environment supported by computer programming tools (including the Internet and computer simulators), a number of human mental states ( hypnotic trance, dreams, creative process, etc.), as well as a set of phenomena associated with the functioning of the media environment (media, digital economy, etc.). As a result of this posture, the attention of researchers remained the problems of the influence of spatial parameters of virtuality in the social environment. Paper objective. The purpose of the article is to consider the features of spatiality inherent in virtual reality in general, as well as the specifics of cyber-virtuality as a special manifestation of the virtual in social reality. Paper main body. Entering the virtual environment involves going through the initial registration procedure and subsequent identification, a kind of simplified initiation rites, “initiation” into users. In addition, the user gets the opportunity to identify himself as “his”, acquires a different status than the “guest”, which is anonymous, invisible, in many cases does not have access to information or cannot leave comments. Leaving the Web returns a person to a state of anonymity, while re-entering leads to individuation and return to the cyber-virtual microspace, the person's immediate environment on the Web. The concept of "virtual ghetto" is considered, which means a space that isolates subjects within the framework of a virtual social community from other groups through borrowing patterns of social interaction and through the choice of contexts of self-presentation that allow them to best "fit" into their environment. The Internet is a new space for social practices, a space of boundless, relatively free, communication, despite the desire to control the processes taking place there by the authorities. This is a space for free self-expression of a person, a refuge for creative research, a repository of wisdom, an arena for debate, a work of art that can be valued as a masterpiece of music, painting or architecture. Here it is possible to create social movements based on value identities, independent of the so-called flows (informational, symbolic, monetary, etc.) that regulate social life, set its pace and often contribute to human alienation in the modern world, in particular, through control over access to the Internet. Comprehension of the category of virtual space leads to the statement that traditional spatial oppositions are erased here, and any point in the world can become close and even central. The cycles of entry and exit from this space set the rhythm of relations within virtual communities, self-developing intellectual systems, united by a semantic field that is significant for each of their members. Conclusions of the research. Relations within virtual communities are determined in a certain way by the functioning of social fields characterized by a set of norms, the internalization of which leads to the inclusion of the individual in the field, where he is endowed with some freedom of action. Human limitation by the framework of the field, his dependence on the virtual microspace in decision-making, being on the “virtual periphery” is opposed to absolute freedom, leading, ultimately, to the limitation of the framework of personal space, fraught with alienation from society, the loss of the need for communication and society.

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Kravchenko, I. M. « PUBLIC CONTROL AS A SEPARATE AREA OF INTERACTION BETWEEN ADMINISTRATIVE COURTS AND THE PUBLIC ». Actual problems of native jurisprudence, n^o 05 (5 décembre 2019) : 94–98. http://dx.doi.org/10.15421/391965.

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The article is devoted to the analysis of public control as an independent direction of interaction of administrative courts with the public. It is proved that the formation of civil society in Ukraine is the basis for effective public control over administrative courts. Features of modern civil society in Ukraine are characterized. The concept of public control over administrative courts is presented as an independent direction of interaction of administrative courts with the public. The content of public control as an independent direction of interaction of administrative courts with the public is revealed. The features of public control over administrative courts in Ukraine are considered. General and special principles of public control over administrative courts are defined. Forms of exercising public control over administrative courts have been established. Methods of conducting public control over administrative courts are revealed. Problematic issues of public control over administrative courts have been identified. The ways of improving the activity of civil society in Ukraine in exercising public control over the activity of administrative courts are outlined. The ways of increasing the effectiveness of civil society interaction with the administrative courts of Ukraine are outlined. The peculiarities of the foreign experience of civilian control over the judiciary are analyzed. Ways of borrowing foreign experience in exercising public control over the activities of the judiciary are proposed. The directions of improvement of public control over administrative courts are defined.

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