Doctrinal Analysis Research Articles

The subject of municipal law as a branch of law: debatable issues of theory

The article examines the problems of defining the subject of municipal law as a branch of Ukrainian law. The phenomenology of municipal law is studied in the context of its genesis, development and understanding of the subject of municipal legal regulation. It is proved that the subject of municipal law as a branch of national law should be considered social relations that arise in the process of recognition, formation, organization and exercise of municipal power, as well as the realization and protection of municipal human rights. The article provides a doctrinal analysis of approaches to interpreting the content of relevant social relations. The issue of the principles and forms of implementation of municipal law was raised.
 It is stated that the urgent task of the modern municipal legal doctrine is the search for the main characteristics of the subject of municipal legal regulation, that is, the generalized criterion that allows to attribute the social relationship to the number of proper municipal legal relations. Municipalism and community organization at the municipal level - the municipal system - should act as such a characteristic.
 For the first time, it was proposed to introduce the category «municipal system» into scientific circulation. According to the author, the municipal system is a system of social relations and principles related to the exercise by territorial communities of their functions and powers as the primary subject of local self-government, as well as the implementation of historical, socio­economic, spiritual-cultural, ethno-national and other features and traditions of their municipal life, which are recognized and protected by the Constitution and other acts of positive law. It is a kind of system-conglomerate structure, a synergistic combination of the principles of local self-government and heterogeneous elements and processes of municipal life (human rights, freedom, democracy, power, territory, property, etc.). It is claimed that the municipal system is one of the basic criteria for the formation of the subject of modern municipal law.

HOLDING AS A FORM OF SUCCESSION PLANNING

Holding companies as a form of succession planning have gained prominence in the business and family context, being used as an effective strategy for protecting assets and minimizing taxes. The general objective will be to analyze the use of holding companies as a succession planning mechanism, addressing their advantages, legal and tax aspects, in addition to highlighting their importance in organizing family assets. The research methodology used is bibliographic, involving the analysis of doctrines, academic articles and legislation relevant to the subject, aiming to provide an in-depth understanding of the advantages and challenges associated with the creation of holding companies. The justification for choosing this topic lies in the growing need for succession planning in Brazil, where the lack of an adequate strategy can lead to asset disruption and family conflicts. In addition, the relevance of the topic is evidenced by the complexity of tax laws and the search for alternatives that guarantee efficiency in the transfer of assets. Thus, the analysis of holdings as a succession planning tool not only contributes to academic knowledge, but also guides entrepreneurs and families in adopting practices that promote asset security and the continuity of their legacies.

Identifying untapped legal capacity to promote multi-level and cross-sectoral coordination of natural resource governance.

Natural resource governance in the face of climate change represents one of the seminal challenges of the Anthropocene. A number of innovative approaches have been developed in, among others, the fields of ecology, governance, and sustainability sciences for managing uncertainty and scarcity through a coordinated approach to natural resource governance. However, the absence of an enabling legal and regulatory framework has been identified in the literature as one of the primary barriers constraining the formal operationalization of these governance approaches. In this paper, we show how these approaches provide tools for analyzing procedural mandates across governmental levels and sectors in the natural resource governance space. We also find that there has been inadequate consideration of the potential in existing laws and regulations for cross-sectoral and multi-level coordination of natural resource governance. On this basis, we develop and apply a protocol that draws on the traditional legal method of doctrinal analysis to demonstrate how to identify existing, untapped legal capacity to promote coordinated governance of natural resources through an in-depth case study of water resources in South Africa. We then show how these untapped capacities within existing legal structures may be operationalized to improve natural resource governance. Further, this protocol is portable to other countries, provinces (states), and localities around the world.

Prohibition of corporal punishment and alternative justifications for the lawful use of force against children in Australia

AbstractThe prohibition of corporal punishment in Australia will require reform of the criminal law of assault to abolish defences in each Australian state and territory that permit the use of force on children for the purpose of punishment. This paper highlights the anomaly of those defences by undertaking a comparative doctrinal analysis with other Australian criminal law principles that excuse the use of force by parents and caregivers, including force for the purpose of management and control, and physical contact that is accepted by the community as part of everyday life. This comparison highlights the persistence in the corporal punishment defences of outdated notions of parental rights and authority over children, in contrast to broader trends in the law toward recognising that parents exercise responsibilities in the best interests of their children. In addition, this analysis confirms that abolition of Australian defences for corporal punishment will not criminalise parents and caregivers using force for purposes other than punishment.

Fighters, Not Victims: On Victimhood Recognition and Gender Representations in the Enslavement Charges in the Ongwen Case

Abstract In the Ongwen case, according to the otp women were abducted to be wives and men to be soldiers, women were forced to work and men forced to fight. The otp brought enslavement charges for some of these crimes. Absent from the charges was the forced fighting of men. This paper discusses the crime of enslavement in the Ongwen case. By combining a doctrinal analysis and a feminist approach, I seek to show how gender representations emerge in the application of the law in detriment of men’s victimhood. I argue that the application of the law responds to gender representations in war. Men are not perceived to be victims once they become ‘soldiers’. Likewise, for women, the effect is their continuous perception as non-fighters and victims of war. This leads to reinforcing those representations, to lack of acknowledgment of victimhood for men and to reducing the experiences of women.

Arbitrators’ suspicion of money laundering: choices against principles

PurposeThis paper aims to examine the options available to arbitrators when they suspect money laundering during arbitration proceedings, considering their compatibility with fundamental principles and concepts of arbitration.Design/methodology/approachUsing a doctrinal analysis approach, the paper draws on legal principles, antimoney laundering regulations and relevant literature to explore the topic. It considers relevant international treaties, standards set by the financial action task force on money laundering, cases and arguments from legal analysts and experts.FindingsThe paper identifies three options for arbitrators: disregarding suspicions, initiating an investigation or terminating the proceedings. Disregarding suspicions is deemed inappropriate, as it may facilitate the concealment of financial crimes. Initiating an investigation is seen as a preferable option, aligning with the arbitrator’s role and the public interest in nullifying contracts linked to criminal conduct. Terminating the proceedings is not recommended, as it contradicts the principle of natural justice. The paper emphasizes the importance of reasonable grounds for suspicions, notifying the parties, and allowing them to address the concerns.Originality/valueThis paper contributes to the existing literature by comprehensively analyzing the compatibility of these options with arbitration principles and concepts. It underscores the need for clear laws and directives to guide arbitrators in addressing financial crimes within the arbitration process, maintaining a balance between party autonomy and preventing the misuse of arbitration for illicit activities.

Contesting of the Refusal to Allow the Resumption of Proceedings on the Issuance of an Administrative Act

In the present study, the issue of contesting the refusal to allow the resumption of proceedings on the issuance of an administrative act, which according to Art. 103 para. 3 of the Code of Administrative Procedure can be disputed in accordance with the procedure of Chapter Ten, Section IV of this Code. More specifically, an analysis is made of the refusal to allow the resumption of administrative proceedings as a subject of dispute and the procedure for contesting it. An answer was sought to the question whether it is possible to contest the tacit refusal to allow the resumption of proceedings on the issuance of an administrative act. The question of the entities that can contest these refusals is also discussed. An analysis of legal doctrine and jurisprudence was made on the issues raised in the research.

Rescuing transparency in the digital economy: in search of a common notion in EU consumer and data protection law

Abstract Transparency remains a contested concept in European Union (EU) law and policy. All the main instruments of EU consumer and data protection law require that consumers be given access to and understand certain information about their relationships with traders. Improved transparency is also proposed as a response to a variety of problems associated with digital markets, including those experienced by consumers and data subjects. At the same time, transparency is increasingly challenged as ineffective and potentially even counterproductive from doctrinal and critical scholarship alike. First, transparency is seen as inherently unable to transform the economic reality on the ground and to address the power imbalances between consumers and traders. Secondly, it is argued that acts of representation involved in transparency suffer from complexity and are prone to exploitation by the actors who engage in it. This, in turn, casts doubt on the ability of transparency to steer the behaviour of businesses and transform markets to the benefit of consumers and society. This article builds upon prior critiques of transparency and connects them with a doctrinal analysis of EU consumer and data protection law and in particular the Unfair Contract Terms Directive, the Unfair Commercial Practices Directive, and the General Data Protection Regulation. Seven different notions of transparency are identified: (i) Transparency as access to the medium over time; (ii) Transparency as presentation of information that facilitates understanding; (iii) Transparency as formulations that facilitate understanding; (iv) Transparency as non-ambiguity and logical intelligibility; (v) Transparency as the absence of deception and confusion; (vi) Transparency as completeness and specificity; and (vii) Transparency as non-arbitrariness. The article submits that the acts of representation involved in transparency are already recognized in the three legal regimes and attempts are made to leverage the mediated nature of transparency to consumers’ advantage. Crucially, existing efforts to regulate mediation and improve its quality can, nowadays, be reinforced with the help of algorithmic systems geared toward supporting consumers. Moreover, some of the deployments of transparency identified—most notably transparency as non-arbitrariness—push its outer conceptual boundaries in ways that bring transparency very close to fairness. The article ultimately questions a vision of transparency as a necessarily softer-touch protective frame, which cannot alter business conduct. The conceptual richness of transparency offers opportunities for its deployment in more disruptive ways.

Distinguishing biblical Christian doctrines from fabricated interpretations: a comparative analysis of biblical understanding

The aim of this study was to distinguish biblical Christian doctrines from fabricated interpretations. A doctrine may be considered cultic if an institution, group or individual develops a theological or doctrinal interpretation that touches minimally on the proper biblical emphasis and lives for the most part outside of that circle. This study is offered, not as an analysis of Christian cultic doctrines but as a pointer to how some Christian movements, groups or individuals develop cultic doctrines or heresies. The spiritual danger arising from the teachings of false prophets calls for believers to strive for the right doctrines so that one can differentiate between truth and falsehood. The study concludes that Some Christians unknowingly embrace Christian cult doctrines because the spiritual leaders who have been entrusted with the responsibility of teaching and preaching sound doctrines have failed to carefully and seriously provide supportive fellowship, true exposition of the word, and raise awareness on cults and cultic teachings.

Agreements Forbidden by Law vis-à-vis Agreements to Defeat the Law: How Are They Different?

AbstractThis article seeks to ascertain the difference between the agreements forbidden by law under section 24(a) and those intended to defeat the law under section 24(b) of the Malaysian Contracts Act 1950. Even though both subsections (a) and (b) cater to different types of illegality, the courts in Malaysia have often been applying them together without giving reasons why they do so. Their conjoined application prevails perhaps because there has been no convincing explanation of their differences, particularly when considered in the context of the common law doctrine of sham. This article attempts to fill that gap. The article suggests that 24(a) deals with the agreements that are expressly or impliedly forbidden by law, while 24(b) applies to sham contracts. This proposition is based on the analysis of the common law doctrine of sham and recent court decisions.

The doctrine of St. Gregory Palamas and the doctrine of Grigory Akindin about uncreated and created energies

Introduction. The purpose of this article is to carry out a critical analysis of the doctrine of St. Gregory Palamas and the doctrine of Grigory Akindin, to identify significant contradictions regarding different understanding these authors of the "nature" of the Tabor Light, the relationship between God's essence and God's energy, and the different understanding these authors of communion to God by essence (nature) and by grace.Materials and Methods. In this article the methodology of critical analysis and the methodology of the rational reconstruction of the researched materials are used, combined with the methods of comparative analysis of doctrine of St. Gregory Palamas and the doctrine of Grigory Akindin.Results. The article considers the point of view according to which uncreated energies are the outpouring (exodus) of the essence of God. This point of view is shared by St. Gregory Palamas and Gregory Akindin. But this point of view is the only thing that unites these authors. Wanting to preserve the simplicity of God (fearing to introduce unacceptable complexity and multiplicity into God), Akindin, unlike Gregory Palamas, essence of God and the energies of the essence of God binds stronger. According to Akindin, the energies of the essence of God do not go beyond the essence of God. So, without excluding the presence of God's energies, Akindin excludes the possibility of the presence in God of something other than the essence of God. According to St. Gregory Palamas, God is simple in His essence (the essence of God is simple), but complex and multiple in its properties and actions (actions-properties) in the form of uncreated energies. Uncreated energies, from Akindin's point of view, do not come from the Trinity, but only from Its Second embodied Hypostasis – from Jesus Christ, who in His one God's Person unites two essences, two natures: God's nature and human (created nature). Since the energies are the outpouring of the essence, we so have two different energies-grace: created and uncreated. It is precisely the created energy-grace that man takes communion.Discussion and Conclusions. we proved that, despite the similarity of the positions of St. Gregory Palamas and Gregory Akindin regarding their understanding of uncreated energies as outpourings of the essence of God, there is complete incompatibility between these two authors. This incompatibility forms an area for the further discussion.

Analysis of the legal regulation of administrative conflict proceedings in European countries for the development of domestic legislation

The work proves that Ukraine’s integration into the European legal space requires a full-scale legal system reform based on the principles and standards formed at the pan-European level. It is extremely necessary to take into account international and European standards when carrying out reforms in public administration in Ukraine, as well as take into account theoretical provisions, doctrines, and positive practical experience of foreign states in the field of administrative conflict proceedings. The administrative-judicial reform announced by the President of Ukraine and the development of the normative framework for the regulation of administrative proceedings is taking place while considering international and European standards of administrative justice aimed at the settlement of conflict proceedings. The analysis of foreign doctrine and legislation in the field of administrative responsibility indicates the absence of a single model of legal regulation of this institution in foreign countries, where in some countries, it is part of criminal legislation, while in others, it is an entirely different sphere of legal regulation. In order to improve conflict legal proceedings, it is expedient to pay more attention to the international experience of regulating administrative proceedings. Despite the different attitudes to administrative and tort legislation in various countries, each country has its own important experience in conducting cases. It is possible to describe the following features of the systematization of legislation on administrative responsibility: some countries are focused on decodification, while others are moving toward adopting a single codified act. Also, quite often, we can observe differences in jurisdictional administrative procedures in foreign countries. However, the implementation of the experience of European countries in conflict proceedings will not only contribute to the improvement of domestic legislation but will also ensure close cooperation with the EU. The author proposes to use the experience of foreign countries regarding the expansion of the range of subjects of proceedings in cases of administrative offenses since, in most countries, legal entities can be brought to administrative responsibility on an equal basis with individuals. In this way, administrative justice would contribute to the strengthening of law and order in the state of Ukraine. Administrative justice is an integral feature of the rule of law state, and its creation is the task of every democratic state. Key words: administrative law, administrative process, administrative proceedings, conflicting administrative proceedings, simplified proceedings, administrative law of foreign countries, administrative law of EU countries, administrative tort law

Promoting Innovation or Exacerbating Inequality? Laboratory Federalism and Australian Age Discrimination Law

According to laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. However, it is unclear whether these benefits are realised in practice and whether states are actually effective ‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and qualitative expert interviews with 66 Australian respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue that, in this particular context, the benefits of experimentation may be outweighed by the resulting difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal structure has led to a confused and confusing patchwork of legal regulation. There is therefore a need for stronger federal structures to facilitate mutual learning and better realise the benefits of laboratory federalism.

TO THE PROBLEM OF IDEOLOGIZATION OF GLOBALIZATION PROCESSES TODAY

The article analyzes the ideological factor of influence on globalization processes in the modern world. In this regard, an analysis of various ideological concepts, doctrines and theories was carried out. The ideological phenomenon of globalization is considered through the prism of globalism. In particular, the author examines political globalism, which is based on the ideas of the ideological order and takes into account the interests and capabilities of the states that have benefited the most from modern processes of globalization, especially in the political and economic parts. Special attention is paid to the influence of Anglo-American liberalism. In this context, globalism is considered from the point of view of ideology and strategy, in accordance with which the efforts of globalists construct a world of economic and political monopoly. Accordingly, normal competition and partnership have been replaced by a division into the "golden billion" and the periphery. The article pays special attention to contradictions regarding the importance and influence of the ideological factor on modern globalization processes. In particular, the problem of de-ideologization and re-ideologization of society is analyzed. The author examines processes that are diverse in their origin, spheres of manifestation, mechanisms and consequences, which make up the objective content of globalization and believes that the latter cannot be free from a complex of ideological factors, values and aspects. A separate question was raised regarding the realization of the interests of the technosphere. The concept of the technosphere and related ideological constructions intersect with one of the most important and acute problems of our time - the correlation between the processes of globalization and modernization, the leading direction of which is westernization. The author examines the ideology of globalism within the framework of the economic-centric approach to the interpretation of the modern world.

Acquisition of Customary Rights of Customary Communities In Customary Lands for Corporate Business Use Rights

Indonesia has regulations on land management related to the economy based on the public interest. The use of land by a corporation is carried out by granting cultivation rights (HGU) over the ground through a Government stipulation. However, with increasing investment activity, land has become essential to support capital inflows in Indonesia. With the shift in land requirements for investment, customary land has become an attraction for investors in business activities in the agricultural, fishery or plantation sectors. This research is legal research (doctrinal analysis) using a conceptual approach (conceptual approach) and statutory approaches (statute approach). The results of this study explain that the use of land in corporations located on customary land through HGU is a legal action and can be carried out as long as it does not interfere with or eliminate the essence of the characteristics of the customary land rights. Then, granting HGU over customary land can be done in consultation with the customary community with corporations through the government. However, the deficiency in granting HGU over customary land when this period expires threatens the loss of the status of customary land and customary rights.

THE CONFLICT BETWEEN CERTAIN CAPITAL ALLOWANCES IN THE INCOME TAX ACT AND THE SPECIAL ECONOMIC ZONES POLICY OBJECTIVES

Through various incentives, special economic zones (SEZs) aim to promote industrial capacity development, create jobs and stimulate the South African economy. However, in practice, misalignment of tax legislation requirements with current practices may undermine the success of the SEZ programme. If property developers are unable to claim capital allowances for expenditure incurred on property developments within an SEZ, this acts as a disincentive to investment, which conflicts with the overarching rationale for the SEZ initiative. This study seeks to determine the extent to which current practices prevent property developers from claiming capital allowances for developments in SEZs, and to propose appropriate remedies. The study presents a doctrinal analysis of the requirements of the SEZ Act and relevant provisions of the Income Tax Act in the context of current practices in SEZ development. The analysis demonstrates that, where the ownership of land designated for SEZ development is retained by government, property developer lessees may be unable to claim capital allowances in respect of expenditure incurred on property developments. This study therefore motivates for the removal of the ownership requirement from building allowance provisions of the Income Tax Act. This would align tax legislation with current practice and the policy objectives of the SEZ programme, as well as address the current inconsistency in the requirements of building allowances.

ORGANIZATIONAL AND LEGAL FOUNDATIONS OF DIRECTORY OF THE UKRAINIAN PEOPLE’S REPUBLIC ARMY DEVELOPMENT (1918-1920)

The article examines the organizational and legal foundations of The Directory of Ukrainian People’s Republic army development, highlights the stages of military construction, characterizes normative legal acts in the military sphere and their significance for the creation of the national army. The author makes a legal analysis of the military doctrine of the UPR Directory.

Parents’ failure to fulfill their obligation to support minor children: controversial aspects of criminal law qualification

The article is devoted to the study of the issue of criminal law qualification of the parents’ malicious failure to support their disabled children. The corpora delicti of the criminal offences, provided for by Articles 164 and 166 of the Criminal Code of Ukraine, have been analyzed. Attention is drawn to the similarity of their direct objects and the circle of victims. It is concluded that the support of minor children is a component of the duty of care to them, and Articles 164 and 166 of the Criminal Code correlate with each other as general and special rules. The author examined guilty verdicts under Article 166 of the Criminal Code, contained in the Unified State Register of Court Decisions, for the period from 2010 to 2023 (688 verdicts). The cases of inaccurate qualification of the parents’ malicious failure to fulfill their obligation to support minor children and to take care of them as an ideal set of criminal offences, provided for by Part 1 of Article 164 and Article 166 of the Criminal Code of Ukraine are presented.
 Attention is drawn to the absence of judicial practice of conviction of parents for a malicious failure to support their minor children as provided for by Part 1 of Article 164 of the Criminal Code of Ukraine, which is related to the absence of any specific criteria of malice. As a result of analysis of the criminal law doctrine and law enforcement practice, the author proposes to exclude such a form of action as “the parents’ malicious failure to support their minor children” from Part 1 of Article 164 of the Criminal Code. The author argues that depending on the perpetrator’s mental attitude to the consequences, the parents’ failure to support their minor children should be qualified as domestic violence (Article 126-1 of the Criminal Code) or a failure to fulfill a duty of care to the child (Article 166 of the Criminal Code).

ADMISSIBILITY OF NON-MUSLIMS EVIDENCE IN CASES INVOLVING MUSLIM PARTIES IN NIGERIA COURT: A CURSORY EXAMINATION OF QUR’AN CHAPTER 5 VERSE 106

The interpretation of Qur’an chapter 5 Verse 106 created a lot of divergent opinions among the early Muslim jurists, especially as regards the admissibility of the evidence of non-Muslims (people of scriptures) in cases involving Muslim parties. While some jurists reject their evidence on the basis that the verse in contemplation has been abrogated, others accepted it in line with the letters and spirit of the Qur’an provision solely, that is, in cases of bequest, on a journey and where Muslims are not available. There is also another candid but liberal opinion that allows such evidence in all circumstances where necessity dictates for same. Does this classical discourse represent the same position of our present society, or is it possible to adopt any of the classical arguments to our current situation, especially in Nigerian society where Muslims and people of other faith (especially Christians) intermingled in several affairs of life? What then will be the situation of the evidence of people who do not qualify as ‘people of scriptures’? This piece, through doctrinal analysis, founds that the classical jurists have exhausted all possible argument and their positions (depending on the school) could be adopted depending on the circumstance of each society and the necessity of each transaction. It is concluded that Muslims should be wary and conscious of the company to keep so as not to forestall compliance with the dictate of Shari‘ah.

Declassifying Theory of Separation of Powers and its Inherent System of Checks and Balances: A Comparative Study

The main objective of this article is inspection of the development of the concept of separation of powers to highlight that the powers must not accumulate in one hand and they should be divided among the three main pillars of the state i.e., Executive, Legislature and Judiciary. If the powers accumulate and concentrate in one hand, then the chances of abuse or misuse of power increases which can be dangerous not only for the citizens but also for the integrity of the state. The major purpose of the principal of separation of powers is the betterment of mutual relation among the three branches so that the democracy remains intact and no institution should perform the functions of the other. This article provides in-depth critical analysis of doctrine of separation of powers. It critically inspects its application in America and compares it with other jurisdictions to provide a comparative study