The goal setting in law: the theoretical and methodological problems of substantive and procedural law

The paper examines the question of whether relations developing in arbitration proceedings are included in the subject of civil procedure law. The author describes the positions of researchers and the arguments justifying them. In the paper, the author derives a criterion for the unification of public relations under the subject of civil procedure law. As such a criterion the paper defines an objective social need or interest in the legal regulation of certain public relations in a unified system of procedural safeguards (in a civil procedural form), taking into account the nature of these relations and ensuring to the maximum extent the real protection of the rights and legally protected interests of persons. It is concluded that the legal regulation of public relations developing with the arbitral tribunal is designed to satisfy the need for a qualitatively different procedure for resolving civil cases as compared with the system of justice. These relations objectively are non-procedural in their nature and are not included in the subject matter of law of civil procedure. In confirmation, the fact is given that in arbitration proceedings there is a rejection regarding procedural guarantees that are fundamental for civil procedure law.

This scientific article examines the relationship between substantive and procedural law in civil proceedings. Based on the analysis of the existing doctrinal positions, it is indicated that each procedural branch of law is closely connected, first of all, with that branch (branches) of substantive law, which it as if serves. This connection is crucial in terms of clarifying the legal nature of the procedural procedures designed to service the basic substantive legal relationship. The relationship between substantive and procedural law is crucial, because it is the substantive law determines the category of cases in each of the types of proceedings, including civil, because the different legal nature of cases is important to determine the order of judicial review of such cases. It is indicated that the determining influence of the substantive component of cases is carried out, first of all, on the activity of the court of first instance. It is emphasized that the main elements that are under the material – legal influence (formed) include, in particular, the following: the subject and grounds of the claim (statement of claim), the subject composition, jurisdiction, subject of proof (evidence and proof), ways to protect the violated, unrecognized or disputed subjective rights and interests, etc. The relationship between the rules of substantive and procedural law can be traced in the content of the court decision. It is indicated that the court in the motivating part of the decision indicates the rules of law applied by the court, and the reasons for their application and the rules of law referred to by the parties, which the court did not apply, and the reasons for their non-application. that the substantive nature of cases to some extent affects the procedural form of their consideration and resolution in civil proceedings. there is a certain differentiation into generic and categorical characteristics, which distinguish court cases. Generic properties of court cases – are the criteria for distinguishing types of court cases. This is a branch affiliation of a certain group of material legal relations; the legal nature of substantive legal facts, which is a prerequisite for the emergence of civil proceedings. It is indicated that the current construction of the Civil Procedure Code of Ukraine shows that the rules of civil procedural law have some feedback with substantive law. The conclusion is made about the relationship between the norm of substantive and procedural law, which is manifested in the resolution of a particular civil case, in particular, in determining the rules of jurisdiction, highlighting the subject of evidence, determining the subjective composition of the parties.

In the science of civil procedural law, there is considerable interest in the study of evidence law. In some cases, the evidence law is considered purely in the sense of the subjective right to prove the circumstances of the case but most researchers have attempted to determine the place of evidence law in the general system of law. However, the conclusionson this point are very different; the evidence law is proposed to be considered as both a legal institute, and as a branch of law, and as an independent formation. To characterize evidence law, it is necessary to determine what legal rules are parts of it, how they are interconnected, and how they are involved in the proving. This will provide a basis for answering the question of the place of evidence law in the system of law.Evidence law is, first and foremost, rules of procedural law which establish the procedure for proving at all stages of it, determine the basic requirements under which procedural actions aimed at establishing the circumstances of a case must be made. The connection between the evidence law and the procedural law is obvious but proving in civil cases is directly influenced by substantive law.Rules of substantive law are the basis for the formation of the subjectmatter of proof. From these rules follows the main content of the evidentiary activity in the case and the relevance of evidence submitted to confirm the claims and objections of the participants in the case. Providing the form of committing certain transactions, the procedure for issuing various kinds of documents, the competence of different bodiesto make certain decisions, the substantive law rules help to determine the admissibility of the means of proof. They also establish legal presumptions that affect the distribution of the circumstances to be proven between the parties to the case, the legal status of judicial experts, the procedure for conducting judicial examinations and the requirements for expert opinions. Therefore, the evidentiary activity in civil cases cannot be carried out with the application of the rules of civil procedural law only and requires the application of the rules of substantive law.Despite this, unlike procedural law, substantive law does not contain any rule which is applicable in every civil case. The subject-matter of the case, the relevance of the evidence, and the substantive element of its admissibility are largely derived from substantive law, in each case being quite different legal provisions. That is, while some rules of procedural law, in particular, Art. 76-81, 83, 89 of the CPC are applicable in proving in all civil cases, there is no universal rule of substantive law whichwould be involved in proving in every case without exception. Rules of procedural law regulate proving directly by establishing the rights and obligations of the subjects of proving, specific rules and procedures for the submission, investigation and evaluation of evidence. The rules of substantive law are included in proving selectively, their action is always individual and contextual in nature and limited to the resolution ofindividual issues. Therefore, it seems that the effect of the rules of substantive and procedural law in proving is as follows: the order of proving is governed by the rules of procedural law, and substantive law creates the preconditions for proving.The rules of procedural and substantive law in evidence law are combined in a complex, rather than systematic way, since the set of these rules is not characterized by the construction inherent in the system. The set of these rules is not peculiar to the unity of the object and method of legal regulation, commonality in the use of the same institutions and reciprocity of influence, so evidence law does not belong to any of theelements of the system of law. This is a legal phenomenon, an independent complex formation which is based on the rules of procedural law and is characterized by a special order of application of substantive law.

This study deals with case law that has an important impact on the field of civil law. In the area of civil law, many issues straddle the substantive and procedural law portions of the law. The main case law covered in this study concerns dividend and unjust enrichment litigation in civil enforcement proceedings. This issue is an appropriate subject matter when discussing the relationship between substantive law and procedural law because certain interpretive standards have been set by precedent. The study of this case is the starting point for a comprehensive study of the harmonization of substantive and procedural law.
 In this study, I summarized the academic theories concerning such precedents and clarified the significance of the precedents by referring to Japanese precedents and academic theories as well. This precedent reaffirmed its own position and made it clear that, absent a major change in the law in the future, trial practice will allow general creditor to do unjust enrichment litigation without doing objection to a dividend.
 However, a detailed investigation into the possibility of unjust enrichment litigation certification specifically must be conducted in future studies. It is important to look for interpretative arguments and necessary legal amendments regarding dividend and unjust enrichment litigation from the perspective of harmonizing substantive and procedural law. A simple substantive or procedural law unique arproach may not lead to a reasonable conclusion. A comprehensive study of substantive and procedural law should investigate whether the use of unjust enrichment litigation should allow an opportunity to modify dividend, and how to ensure an effective procedure for dividend.

The article examines the directions for improving the administrative and legal regulation of public relations in the field of dimensional and weight control (GVK) in Ukraine as an important element of state policy in the field of road safety, transport infrastructure protection and compliance with public order. The theoretical and methodological principles for improving the administrative and legal regulation of public relations in the field of GVK in Ukraine are revealed, in particular through the prism of a systemic approach, conceptual analysis of administrative and legal categories and means of influence. Doctrinal approaches to determining the essence and significance of areas for improvement are analyzed, their role in increasing the efficiency of public administration in the transport sector is characterized. The features of the modernization of the regulatory system in the context of administrative law are outlined, including the classification of sources, the issues of law enforcement and the requirements for the unity of the regulatory body. Particular attention is paid to identifying the current problems of the current administrative and legal regulation in this area, including the conflicting regulatory framework, the fragmentation of the powers of control bodies, the imperfection of procedures, the lack of digital solutions, the absence of a single administrative procedure, as well as the inconsistency of the responsibility of carriers with modern challenges. Based on a critical analysis, priority areas for improving the administrative and legal mechanism of the GVK have been formulated, in particular through updating the legislation, reorganization of the organizational and staff structure of control subjects, development of information and legal instruments and digitalization of control processes. Separately, the means of practical implementation of the proposed changes are substantiated, including: legislative modeling, updating procedural and substantive law, conducting expert assessments of regulatory impact, as well as the use of public monitoring mechanisms and open data in this area. The final emphasis is placed on formulating guarantees for the implementation of certain areas, including institutional, legal, organizational, budgetary, technological and anti-corruption safeguards that should ensure the proper functioning of the updated system of administrative and legal regulation of the GVC in the context of Ukraine’s integration into the European legal space and strengthening national transport security.

The division of material and procedural law has its deep traditions both in the law and in the legal science. Until recently in the continental legal system had primacy substantive law and the procedural law was perceived as something secondary, as a technology whose task is to serve the substantive law. However, in recent years, more and more widespread is the understanding that both substantive and procedural law are equally important. There is no basis for the material right to be considered as primary and priority, and the process as secondary and subordinate. Substantive law is inextricably linked with procedural law. They can be considered as two sides of the legal category - legal regulation and procedural means for administrative and judicial protection of subjective rights in regulated public relations. In the substantive law, the legal norm determines what the rights and obligations of the legal entity are. The process law determines how these rights and obligations will be realized, that is, the procedure.

An attempt is made to analyze the features and essence of the rules of administrative procedure, as well as some aspects of their relationship with the substantive rules of administrative law. In particular, it is noted that the rules of administrative procedural law: are the primary elements of the system of administrative procedural law; are derived from the rules of administrative law, as they provide sufficient procedural conditions for the implementation of its regulatory, protective and procedural rules; have a specific structure due to the sphere of objectification; enshrined in the Code of Administrative Procedure of Ukraine and other acts of administrative procedure legislation; aimed at the legal regulation of public relations arising in the field of administrative proceedings; have the purpose - fair, impartial and timely resolution by the court of disputes in the field of public relations in order to effectively protect the rights, freedoms and interests of individuals, rights and interests of legal entities from violations by the subjects of power; implementation is ensured through a system of certain means (state-coercive, stimulating, etc.). It is summarized that the norms of administrative procedural law are a primary element of the system of administrative procedural law derived from substantive legal norms, which has a specific structure due to the sphere of objectification, aimed at legal regulation of public relations arising in administrative proceedings for effective protection. rights, freedoms and interests of individuals, rights and interests of legal entities from violations by the subjects of power.

Litigation, refers to the state judicial organs in accordance with the participation of the parties and other participants in litigation, in accordance with the legal procedures, the special activities to deal with the case. Procedural laws is the state judicial organs in the parties and other participants in litigation activities must follow the legal norms of the general term. The laws of litigation mainly provides for the basic principles of litigation, litigation procedures and systems, the duties of state organs entitled to conduct litigation and their interrelationship, the rights and obligations of litigation participants, etc. The procedural laws is relative to the substantive laws, the substantive laws is the laws of people's substantive rights and obligations, is the premise of the existence of procedural laws, while the procedural laws is the guarantee of the implementation of the substantive laws, the substantive laws of the rights and obligations must rely on the procedural laws in order to be successfully realized; at the same time, in order to repair the damaged legal relationships, the infringed rights to relief, but also through litigation. Substantive laws and procedural laws are the content and form of the relationship, one cannot be without the other, complement each other.

It is here contended that respect for individual human rights is in large part predicated on, at the outset, recognition and honouring of collective human rights. Often, however, individual basic human rights are violated on a blanket basis due to the actual or perceived membership of the individuals in an identifiable collective such as a refugee collective with a defined ethnic, religious, socio-political or other group characteristic. In such cases the State focus is then on the collective and not on the individual. In fact when the State adopts such an approach, from the State perspective, the individuals in the collective, in practice, for most if not all human rights related intents and purposes, no longer exist legally. Consideration of and regard for collective fundamental human rights is, however, as will be illustrated via the refugee cases here discussed, essential in regards to refugees if the individual refugee is to be fairly treated according to international customary and jus cogens norms and relevant international treaty and convention obligations. For instance, collectives of highly vulnerable people in many cases are entitled in the first instance, and are sometimes granted, in effect if not formally, prima facie recognition as refugees in terms of entitlement to protection. This occurring then even before individual cases are assessed on their merits. Thus, for example, Bangladesh has accepted a flood of Rohingya persons (400,000 as of September, 2017), belonging to an ethnic Muslim minority group in their homeland of Burma. Thus Bangladesh has, in the first instance, regarded these Rohingya as a prima facie refugee collective comprised of individuals fleeing what has been described by the current U.N. High Commissioner for Human Rights as ethnic cleaning (by the Burmese military and certain non-State groups of different ethnicity):

Edvidence is the information about the facts on the basis of which the court can draw conclusions about the existence or absence of circumstances relevant to the case. The perception of factual data is possible due to the work of the human senses. In the vast majority Eof cases, evidence is perceived through vision or hearing or a combination of them, material evidence can also be perceived through touch and smell. In order for information to be heard or seen, comprehended, analyzed, evaluated, it must be expressed in a certain form which creates the possibility for one person to convey this information and for another person to perceive it. Information about facts relevant to the case may be perceived by the court only through certain means in which the information is recorded. Therefore, in the procedural doctrine it is logically formed the conclusion about the unity in judicial evidence of information and its medium. Evidence and sources of evidence are correlated with each other as the content and form of its fixation. Evidence shows what information it carries, sources of evidence shows in what objective form it is expressed. Types of sources of evidence are stipulated by the standards of the procedural law in the form of an exhaustive list. However, the formation of evidence also affects the rules of substantive law. For written evidence the substantive law establishes the form of the transaction, the competence of the state authority to issue a certain type of act etc. For witness testimony the substantive law defines the official’s or professional position of the person and their access to information which must be kept secret by law, which makes it impossible to interrogate this person about such information. Thus, in some cases sources of evidence must satisfy the requirements of norms of procedural and material law both. Evidence in the civil process may be characterized on the set of such features: 1) it is actual data, information about the facts, expressed in an objective manner; 2) it has the connection with at least one circumstance of the case; 3) the objective form of expression of the actual data corresponds to the essence of one of sources of evidence provided by the procedural law; 4) the source of evidence is directly filed with the court (written evidence, certain types of material evidence), or indicated in the procedural document as the one whose investigation is required to establish the circumstances of the case, including the need to seek evidence (testimony witnesses, certain types of material evidence), or formed on the basis of a court order (expert’s conclusion).

The history of the development of religious courts and the inner atmosphere struggle of Muslims in Indonesia which faced the state’s political force in the New Order era has brought forth the religious procedural law. Article 54 of The 1989 Law No.7 stated that "the applicable law in the Religious Courts are applicable procedural law in the General Court, except those specifically regulated in this law." Philosophically, the Western law both civil substantive law (Burgerlijke Wetboek) and formal law/civil procedure (HIR and Rbg), prepared using the approach of individualism, secular, the optical properties of the nature legal dispute was seen as objects (Zaak) which is sheer material. While the substantive law in religious courts is the law derived from Islamic law that stem from philosophical values of Islam. So, the presence of the Religious Courts in the scope of judicial in Indonesia still raises problems, including: Why is the western law of civil procedure which promote the value of materialism and formal correctness adopted into religious procedural law, whereas the philosophical orientation is not aligned with the substantive law based on Islamic law, and what are the efforts to reform the reformulation of procedural law of religious courts.

Current debates on decentralization and revitalization in Indonesia are closely linked to discourses on individual and cultural human rights: local or indigenous people claiming rights based on their cultural roots, migrants claiming equal individual human rights as Indonesian citizens, and refugees referring to both their human right to protection and their cultural right to return to their ancestral land. Individual human rights and their collective counterpart, cultural rights, will be two of the hardest touchstones for the cultural turn in peace research and are the central theme of this chapter. The contrasting claims of indigenous people, migrants, and refugees in Maluku clearly show the dilemmas arising out of the granting of, on the one hand, cultural rights — one important outcome of decentralization and the adoption of an international discourse on collective human rights in Indonesia — and the granting of individual human and equal citizenship rights, on the other. Whereas every Indonesian citizen can claim the latter, only some can claim collective rights for local polities, which results in multiple citizenship, the essentialization of culture, and the exclusion of cultural outsiders.

In the modern legal system, legal structures play an important role in ensuring effective enforcement of both substantive and procedural law. That is why the author has selected an appropriate source (scientific and normative) base, and has formed the goal and objectives that fully reveal the subject matter of the study. The author emphasizes that substantive law regulates basic social relations by establishing the rights and obligations of subjects, while procedural law provides mechanisms for their actual implementation and protection. Legal constructions are a legal instrument which allows to organize legal provisions, ensuring their clarity, universality and unambiguous implementation. In addition, the author examines the internal construction of a legal provision and a legal prescription, and the correlation of these legal phenomena. The author emphasizes such an important characteristic of the legal construction of a legal provision as a genetic link, which is used to further form legal institutions, sub-branches and branches of substantive and procedural law. The article focuses on the analysis of the role of legal constructions of substantive and procedural rules of law in the process of law enforcement. The author separately considers the issues of their creation, application and impact on the efficiency of legal regulation. The author examines the interaction of substantive and procedural law through the prism of legal constructions of legal norms, which allows identifying key aspects of their systemic effect in the legal system. The work contains examples from the current legislation, in particular, the Civil, Civil Procedure Codes of Ukraine and other legal acts. The author examines the case law which demonstrates the practical value of the issue raised and the need for proper construction of legal provisions at the stage of law-making, which results in their further implementation. The author characterizes the impact of legal constructions on legal practice and their role in ensuring legal stability and predictability. Based on the study, the relevant conclusions were formed.

The article analyzes the legal means that are elements of both the mechanism of legal regulation and legal technology, their characteristics are given, its purpose is indicated. The legal regulation of public relations is considered not only as a static phenomenon, but also as a dynamic process, showing a phased movement from one element to another in their interaction, starting with lawmaking and ending with the achievement of the goal of legal regulation, which consists of the formation and strengthening of law and order in society. A model of the mechanism of legal regulation as a set of combined legal means at all stages of the legal regulation of public relations, including lawmaking, legal relations and the implementation of law, is proposed. The types of legal technology are considered. It is shown with the help of which techniques and means various legal technological operations and actions are carried out, forming the sum of technologies for creating legal documents and implementing legally significant acts and procedures. This is about the same legal means that are elements of a legal regulation mechanism. And here the categories of “legal technique” and “legal regulation mechanism” partially coincide. In this regard, the relationship between the categories of legal technology and the legal regulation mechanism is formulated, in which the legal regulation mechanism is general and the legal technique is private.

There are two very important, and very distinct, areas of criminal law: substantive law and procedural law. This entry introduces the reader to the basic differences between the two by exploring a few examples drawn from each. The basic difference between substantive law and procedural law is the question they answer. Substantive law answers the question “What?” It defines which behaviors are criminal and what prosecutors must prove to convict a defendant of a given crime. On the other hand, procedural law answers the question “How?” It sets limits on how police may conduct investigations and on how prosecutors may prove the substantive elements of the case.