Anglo-American Legal System Research Articles

COMPARATIVE ANALYSIS OF FOREIGN EXPERIENCE ON INVALIDITY OF CORRUPT DEAL

There is no distinction between legal capacity and legal capacity. Instead, the single concept of legal entity (legal capacity) applies. True, in practice there is passive and active ability to deal. In other words, it is interpreted as the ability to independently perform legal actions. Legal subjectivity is considered formally equal and, according to the general rule, begins with the birth of a person and ends with his death. In the Anglo-American legal system, finding a person missing and declaring him dead do not exist as independent legal institutions.

The principle of stare decisis in the judicial proceedings of Ukraine and legal systems of the world

It The article analyses the origins and essence of the stare decisis principle, examines its specific features and formulates its concept. It is substantiated that the principle of stare decisis is a primary principle of procedural law by its structure, which has a cross-sectoral nature and is applicable in court proceedings regardless of the jurisdiction (administrative, criminal, civil, etc.) of the court, addresses the judiciary (not other participants in the court proceedings) with a mandatory requirement to adhere to the legal position formulated in previous relevant court decisions in new court decisions in order to ensure the unity and consistency of judicial practice, its certainty and predictability, which makes it possible for the subjects of legal relations to adjust their legally significant actions (activities) in the future. The authors makes a comparative analysis of the principle of «stare decisis» in the AngloAmerican and Romano-Germanic legal systems. It is proved that this principle in the Anglo-American legal system is interpreted in the sense of «to stand on what is set by the court», and in the Romano-Germanic legal system – «to stand on what is set by law». The authors argues that a court decision is always related to the resolution of a dispute, but in the Anglo-American legal system, a court dispute is related to law, and in the Romano-Germanic legal system, it is related to a violation of law. The effect of the principle of stare decisis in the Anglo-American legal system is manifested in the rule: «precedents are not overruled», even if they are outdated, they still remain in force. In fact, the same rule applies in the Romano-Germanic legal system, because the legal positions set out in the decisions of the Supreme Court are also not cancelled, but rather «departed from» by the court. In the Anglo-American legal system, the principles of law are embodied («live») in judicial doctrine and precedents, which activates judicial rule-making, while in the Romano-Germanic legal system, the principles of law are objectified in legislation, so the principles of law actually become legislative norms, which reduces the discretion of judicial discretion in this legal system. The authors concludes that the principles of law do not adapt to social relations; on the contrary, legislative norms are developed, grouped and adjusted in accordance with the requirements and content of the principles of law. Key words: stare decisis principle, judicial proceedings, principles of law, legal systems of the world, constitutional mechanism of the state, constitution of the state, sources of law, Roman law, judicial precedent.

Supervisory bodies in the systems of power in Russia and certain foreign countries: Comparative analysis

The significance of law enforcement cannot be understated in any state, and diverse models and traditions of law enforcement have evolved within different legal sustems. The status of the Procuracy in the Russian Empire, the Soviet Union and modern Russia, has been consistently characterized by its own independent power for supervising legality, including the actions of government officials. This contrasts with the European and Anglo-American legal systems where the concept of “general supervision” is not present and prosecutors do not possess equivalent powers. In the socialist model of China, an independent system of supervisory bodies has been established separately from the procurator’s office to oversee the activities of government officials. Each model exhibits distinct ontological, structural and organizational features, and a comparative analysis of their accumulated experiences facilitates the identification of their respective advantages and disadvantages, underscoring the relevance of this study. The research aimes to identify and analyze the commonalities and differences among four organizational models for ensuring the rule of law. Notably, the empirical basis for comparing supervisory authorities emphasises the state superiority function, irrespective of the body responsible for its execution (functional approach), rather than external similarities such as the name "prosecutor's office" or "prosecutor". The study draws from authentic legal texts, regulations, authoritative doctrinal commentaries, relevant judicial practices, and official interpretations of foreign legislation. The outcomes of the research lead to informed conclusions regarding the distinctiveness of the Russian model of the Procuracy, which incorporates several advantages from each foreign model, complements them with its own features and is thus capable of embracing positive experiences, regardless of their origins, to effectively filfill its mission.

Challenging issues in resolving corporate conflict within the framework of a corporate agreement

The scientific article will discuss possible mechanisms for parties to regulate their mutual relations through a corporate agreement. In the modern world, the regulation of relations between business partners is a very important aspect that affects the business climate in a country as a whole. If partners can regulate their mutual relations in the company in a way that is understandable to them, it affects where exactly such a company will be created, who will work in it, and where it will pay taxes. There are different approaches to this issue in the world, but it is possible to distinguish two main ones, namely the approaches used in the Anglo-American legal system and the continental legal system. The scientific article will pay special attention to resolving corporate conflict between business partners who have equal shares (50/50). It should be noted that it is very important for each country to develop an appropriate mechanism for resolving corporate disputes that arise between the parties of a corporate (shareholder) agreement, which will meet the requirements of the business environment and will be clearly regulated by current legislation and approved in court. In the scientific article, the nature of the corporate agreement will be disclosed, practical recommendations on preparing a corporate agreement will be provided, and problematic issues that parties to a corporate agreement encounter when resolving disputed issues and corporate conflicts, especially when a deadlock situation arises, will be highlighted. An analysis of the mechanisms used in corporate agreements to resolve disputes between business partners will be provided. Also, the strengths and weaknesses of each of them will be disclosed, including the experience of countries with Anglo-American law and how such experience can be applied in Ukraine. Special attention was given to mechanisms when the right or obligation to buy or sell a share in the company’s capital arises. Additionally, based on the analysis, effective mechanisms for resolving corporate disputes between the parties of a corporate agreement will be proposed in the scientific article, as well as relevant suggestions for improving the legislation of Ukraine and judicial practice on this issue.

Peculiarities of the institution of property alienation contracts in the Anglo-American legal system

The article examines topical issues of the institution of property alienation contracts in the Anglo-American legal system. Peculiarities of the civil law contract in the countries of the Anglo-American legal system are determined. Definitions of «civil legal system» and «alienation of property» are provided. The legal aspects of concluding contracts regarding the alienation of property are analyzed, in particular the form and conditions of concluding such contracts, as well as the peculiarities of legal regulation of the definition of the subject of contracts regarding the alienation of property. The stage of conclusion of contracts on the alienation of property in the countries of the Anglo-American legal system is studied. Attention is focused on the fact that a distinctive feature of the development of the institution of contractual relations in the countries of the Anglo- American legal system is that, firstly, it took place under the significant influence of judicial practice; secondly, found its consolidation in the norms of common law. However, regarding certain types of property alienation contracts, it is worth noting that they are regulated by the norms of special legislative acts. It has been analyzed that, in practice, the relations of the parties concluding a contract of alienation of property are largely regulated not by legal norms that make up positive law, but by the norms of their own «contractual law» created by the parties, that is, by the terms of the contract they have. The content of specific property alienation contracts in this way is determined not so much by the satisfaction of the mutual interests of the counterparties, but by the capabilities and wishes of the economically stronger partner and the necessity dictated by the specific situation of the weaker party to the agreement. It was concluded that the regulation of the institution of property alienation contracts in the countries of the Anglo-American legal system has its own characteristics. In particular, in England, it is possible to note the increased activity of the parliament in the field of regulating civil relations, which is manifested in particular in the adoption of new and amendments to already existing laws, which are voluminous in their content, as a result of which in practice they are even called codified.

The Extent to Which the Fault Is Required as a Basic Element of the Tortious Liability in the Iraqi Civil Law: An Analytical Comparative Study

The Author has done his utmost to draw distinctions between the Iraqi civil law No. (40) of 1951 from one hand and the Islamic jurisprudence, the English common law and some other Arab comparative laws. Although the Iraqi civil law is affected by the Islamic jurisprudence, and borrows the term of guaranteeing the harmful act from the juristic maxims of this jurisprudence. But it adopts impliedly the concept of the fault in the first paragraph of the article (186), by stipulating the willfulness or encroachment of both the perpetrator and the abettor. Thus confusing between the system of the guarantee and that of the liability. Unlike the Islamic jurisprudence which adopts the idea of guaranteeing the harmful act, and distinguishes obviously between the guaranteeing of the perpetrator and that of the abettor. Or between the act done directly by perpetration and indirectly by causation, and does not recognize the idea of the fault. As far as the English common law is concerned, it adopts the fault-based liability as a general principle, the same is true for the Egyptian civil law No. 131 of 1948. Whereas both the Jordanian Civil Law No. 43 of 1976, and the Federal civil transactions law No. 5 of 1985 of the United Arab Emirates adopt the idea of guaranteeing the harm rather than the fault. The problem of the research lies in the confusion, embarrassment and perplexity in the situation of the Iraqi civil law concerning the basic element of the fault in the tortious liability. Therefore the author tries hard to solve confusion, remove both the embarrassment and perplexity by analyzing the true situation of the Iraqi civil law towards this basic element, and comparing it with the Islamic jurisprudence, which is considered as its original historical source, by which it is highly affected. As well as the English common law, considered as the leading legal system within the Anglo-American legal system, and different from the civil law system, led by the French civil code, by which the Iraqi civil law is indirectly affected, through being affected by the Egyptian civil law. The author suggests some relevant recommendations, the most important of which is thedistinction between the system of the liability and that of guaranteeing the harmful act, and adopt the former in the case of the damage done by perpetration, and the latter in the case of the damage done by causation.

Judicial Precedent in The Justice of The Anglo-American System of Law

Purpose: The article provides a scientific analysis of judicial precedent as a source of law in the Anglo-American legal system. Methods: This study carefully analyzed scholarly works and legal documents of judicial precedent as sources of law in the Anglo-American legal system. The data was obtained from various sources, including academic research, international human rights norms and practices of their application with the help of general philosophical and special methods of cognition. Results and discussion: It is emphasized that the judicial precedent is determined by the traditional attitude towards the court in society, which was formed within a certain legal system. It is noted that law in the understanding of the Anglo-American legal system is primarily judicial practice, and the norms of law are included in the legal system only after their repeated application and presentation by judges. It is concluded that today there are objective trends regarding the convergence of the Romano-Germanic and Anglo-American legal systems. It is noted that in common law countries, the legislative path of law development is becoming more and more important, and in continental law countries - judicial decisions of both domestic and international courts, with the help of which the law is clarified and developed. Implications of the research: This research has significant implications for researchers and practitioners in the field of legal sciences, as it defines a comprehensive vision of the development trend of the Anglo-American legal family, which in the process of its evolution acquired certain features of the Romano-Germanic legal system. Originality/value: The specific conclusions formulated in the study fill a gap in current methodologies and knowledge regarding the use of judicial precedent in the justice of the Anglo-American legal system. Clarifying the specifics of the court's interpretation of the precedent as a source of law in the countries of the Anglo-American legal system will contribute to the enrichment of legal science and the development and modernization of certain approaches to these issues at the national level.

Presumptions as means of proof in criminal procedure law of states with continental and Anglo-American legal systems

Presumptions as means of proof in criminal procedure law of states with continental and Anglo-American legal systems

Особенности договорной ответственности в исламском праве

The development of commercial relations with the countries of the Arab East requires a deeper understanding of the peculiarities of their legal system, including in terms of the implementation of civil liability measures. The article examines the features of the doctrine of Islamic law, notes various approaches to solving individual issues of liability for breach of contract due to the existence of various maskhabs, characterizes such forms of liability as daman and amana, analyzes the influence of various circumstances on determining the grounds and limits of liability, including force majeure. The practical implementation of these provisions is illustrated by references to the civil legislation of Egypt, Iran, Qatar and the UAE. The author comes to the conclusion that Islamic legislation reflects a rather peculiar perception of legal reality, which does not always coincide with the legal understanding inherent in the countries of the Romano-German or Anglo-American legal systems, although the approaches formed in it show general ideas about the grounds and limits of civil liability for violation of contractual obligations, as well as exemption from they are based on a deep understanding of the need to implement the principle of justice in civil legal relations.

Application of judicial precedent in the Anglo-American legal system

Application of judicial precedent in the Anglo-American legal system

Behaviorism in auditing and its influence on the legal content of international standards on auditing

The paper is devoted to behaviorism in the field of audit activity, which in the form of the theory of behavior is widely used in scientific research and practice in foreign countries, especially in the USA. The least the problem of behaviorism is studied in Ukraine and then in rather general terms. It is shown that the main source of behaviorism is the philosophy of positivism and pragmatism. Its external manifestation is considered to be an individual reaction on stimuli of an external environment. In connection with this, the motives of the behavior of individuals are assigned a leading role in determining the normative regulation of activity of participants in accounting and auditing. It should also be noted that the precedents for assessing the subjects' behavior in this aspect constitute the system of Anglo-American law. The specified legal system has significant differences from the continental or European law to which Ukraine belongs. The dominance in conceptual law of normativism leads objectively to difficulties on introduction of International Standards on Auditing (ISA) based on the Anglo-American legal system in European countries and Ukraine. The paper also considers how a behavioral approach is used in specific ISA. As the example the ISA 315 "Identification and Assessment of Risks of Material Misstatement" and the ISA 240 "Auditor's Responsibilities Regarding Fraud in the Audit of Financial Statements" are taken. In particular, ISA 315 proposes to assess the risks of material misstatement through an understanding of the entity and its environment. It is emphasized that such an understanding of the business entity should not be a formal act as a legal entity, but from the position of the real behavior of management personnel. According to the ISA 240, the auditor should exercise professional skepticism throughout the audit, with recognizing the possibility of significant distortion due to fraud or error regardless of management's positive assessment. Based on professional skepticism, regarding the identification by the auditor of specific opportunities to commit fraud, the ISA 240 recommends to analyze the motives of the management personnel's behavior, pressure from the external environment, opportunities to commit fraud, attitudes and logical justification of wrongdoing. The final part of the paper gives relevant recommendations for harmonizing the ISA with domestic regulatory and legal acts and the practical activity of auditors on the territory of Ukraine.

Creditor Protection Mechanism of Debtor's Fraudulent Transfer: Comparing Current Legislation of China and the United States

Fraudulent transfer behavior refers to the act of a debtor, in order to evade debt, obstructing or delaying the creditor's realization of their creditor's rights by transferring their own property or establishing a right burden on the property. This concept is originated from the Anglo-American legal system, but similar concepts can also be found in Chinese law system. The fundamental reason why fraudulent transfer behavior needs to be regulated is that it violates the debtor's moral obligations of integrity and fairness towards creditors. Based on a comparative analysis of existing rules in China and the United States from the exercise of the right of avoidance to determination that the assignment is invalid, this article proposes a possible approach to fraudulent transfer rules in China in mainly three aspects: improving the definition of fraudulent transfer, providing creditors with more adequate remedies, and adjusting the burden of proof for creditors to exercise avoidance rights.

Update of the word in the interdisciplinary discourse of the theory and philosophy of law

The problem of insufficient language training of applicants and therefore graduates for higher legal education in Ukraine is being updated. They are not offered to study methodologically significant sciences for jurisprudence, in particular semantics, legal linguistics, hermeneutics. Hence, there are gaps in program learning outcomes, errors in law-making, legal evaluations, and explanations of legal phenomena and processes. Inattention to the primary meaning of the word is caused by a shortcoming of the current Standard of the Bachelor’s level of higher legal education of Ukraine: the absence of the need to know and understand the peculiarities of law-making in the list of program learning outcomes. Its linguistic excellence determines the quality of implementation and application of law.
 Analysis the author’s own teaching experience and of the results of studies of individual aspects of the problem by scientists T.I. Dudash, S.I. Maksymov, A.S. Tokarska and others. revealed the urgent need to normalize the contradictory situation in the legal terminology of Ukraine, where Ukrainian and foreign language terms of different meanings are chaotically combined. In particular, it is necessary to take into account the significant differences in legal naming and legal understanding between the continental European and Anglo-American legal systems, with an orientation towards the first as close to the legal traditions of Ukraine. The experience of preserving special national traditions of legal naming and legal understanding in the legal linguistics of the leading EU states – Germany and France – is important. For quality training of Ukrainian lawyers, it is necessary to improve their professional language culture. In particular, supplement the Standard with a separate learning outcome: «the need to know and understand the peculiarities of law- making». The integrated discipline «Theory and philosophy of law» with parallel teaching of the course «Ancillary legal disciplines» should be introduced into the curricula of the specialty «Law» in the first year. Teaching philosophy of law in the fourth year separate from legal theory is illogical. Compile an encyclopedic dictionary of the Ukrainian legal language, give it legal force in the training and practice of law-making and law-enforcing bodies. Focus on continental European law, preserving the uniqueness of the Ukrainian language of law from excessive foreign language borrowings.

СТАНОВЛЕННЯ ТА РОЗВИТОК МІСЦЕВОГО САМОВРЯДУВАННЯ У ЗАРУБІЖНИХ КРАЇНАХ

The scientific article is devoted to the formation and development of local self-government in foreign countries, it reveals the main issues of the genesis of local self-government in the countries of the Anglo-American legal system.

Peculiarities of determining the burden of proof in economic litigation

The article examines the issue of determining the specifics of the burden of proof in economic litigation based on the analysis of legislation and judicial practice, including that of Great Britain, the United States, and the European Court of Human Rights.
 An analysis of the concepts "duty of proof" and "burden of proof" was carried out, it was determined that the duty of proof means a measure of proper behavior, the violation of which may lead to the application of a measure of responsibility. At the same time, non-fulfillment of the burden of proof cannot be the basis for applying any sanctions, but leads to negative consequences in the form of recognition of a certain circumstance as unproven and the participant in the case receiving a negative court decision.
 It has been proven that in the conditions of the approximation of Ukrainian legislation to European and unification of terminology, it is more successful to use the concept of "burden of proof" in Ukrainian legislation.
 It is noted that an important element of the competitiveness of the process is the standards of proof - special rules that the court should be guided by when deciding the case. These rules make it possible to assess how well the parties fulfilled the requirements regarding the burden of proof and how well they were able to convince the court of their position, which makes the evaluation of the evidence reasonable.
 The essence and features of the standard of proof are defined, taking into account the principle of the probability of evidence. The features and types of the standard of proof, the burden of proof in the countries of the Anglo-American legal system are characterized.
 The process of proof is analyzed and the concept of "disclosure of evidence" is distinguished, which means the duty of each person participating in the case to disclose the evidence, which he refers to as the basis of his claims and objections, to other persons - participants in the case, before the beginning court session

General characteristics of the anglo-american legal system with a special focus on civil procedure

General characteristics of the anglo-american legal system with a special focus on civil procedure

ЗАРУБІЖНИЙ ДОСВІД АДМІНІСТРАТИВНОЇ ВІДПОВІДАЛЬНОСТІ ІНОЗЕМЦІВ ТА ОСІБ БЕЗ ГРОМАДЯНСТВА

The paper is devoted to a careful and topical topic of studying the administrative responsibility of foreigners and stateless persons in some foreign countries. It is noted that foreigners and stateless persons in Ukraine are subject to the national legal regime, i.e., they are endowed with the same scope of rights and responsibilities as citizens of Ukraine. Except for certain political and labor rights. Thus, foreigners and stateless persons are brought to legal responsibility, including administrative, on a par with the citizens of Ukraine. In the context of improving and optimizing the process of bringing to administrative responsibility foreigners and stateless persons in Ukraine, it is advisable to study the positive foreign experience. Thus, the proposed study is relevant and important. The methodological basis of the study were general scientific and special legal methods of cognition. Among the general scientific methods, we used dialectical, general logical, analysis, generalization, and formalization. Regarding specifically legal methods, we used, among others, formal-legal, systemic, theoretical, and legal. The key place in our study, of course, was occupied by the comparative law method, which allowed to conduct a comparative legal study of the grounds of administrative liability of foreigners and stateless persons in foreign countries, as well as those sanctions and penalties that may apply to some foreign countries. The authors found that the states of the Anglo-American legal system do not recognize separate administrative legislation. Acts that in Ukraine are considered administrative offenses, violations of customs law or tax misdemeanors in the United States belong to the category of crimes or civil misdemeanors. It has been proven that in most European countries belonging to the continental group of legal systems, cases of administrative offenses belong to the field of criminal law, i.e., such offenses are considered a type of crime. It is determined that the peculiarity of the administrative and legal status of foreigners in Japan is the fact that the migration policy of this country is not focused on the integration of foreigners, plus this country does not have adequate social infrastructure for their settlement.

Animated Film Artist as a New Audiovisual Author

The paper deals with the status of a new author of an audiovisual work: animated film artist. The author analyzes a range of authors of an audiovisual work, considers these legal categories through the prism of foreign experience analysis, doctrinal sources and law enforcement practice. The paper describes the provisions of Art. 1263 of the Civil Code of the Russian Federation, dedicated to one of the types of complex objects of intellectual property rights, namely an audiovisual work. The author considers the legal status of a film artist and concludes that it is necessary to introduce a new subject into a range of authors of the object in question. The paper analyzes foreign experience of Romano-Germanic and Anglo-American legal systems in terms of determining a range of authors of an audiovisual work, in particular a movie and a cartoon. The author draws a conclusion about the relevance of the changes made to paragraph 2(4) of Art. 1263 of the Civil Code of the Russian Federation and cites as an example the positive experience of foreign countries that single out a film artist as one of the authors of the works under study.

Personal Non-Property Rights of the Performer in Modern Conditions

Individuality and personal qualities manifistation is characteristic not only for authors when they create works, but also for performers. Performing a work, a performer leaves an imprint of his understanding of this work. Such an individual contribution gives grounds for the recognition of performers’ personal non-property rights to their performance. The personal non-property rights of the performer not only indicate the connection between the performer and the result of intellectual activity (performance) created by him, but they also allow the performer to terminate the actions of third parties affecting the personal interests of the performer.The paper provides a comparative analysis of the provisions of Russian and foreign legislative acts in the field of intellectual property concerning the personal non-property rights of performers. It is pointed out that the approaches applied to the protection of personal non-property rights of performers in the states of the Romano-German and Anglo-American legal systems have some differences. Thus, in the USA, provisions on unfair competition, privacy, etc. are applied to protect the non-property rights of performers. In Russia, when creating the provisions of legislation concerning the personal non-property rights of the performer, the provisions on similar rights of the author are taken as a basis, but in comparison with the authors, the rights of performers are more limited in scope. The author examines some problematic aspects indicating the expediency of studying the possibility of expanding the scope of the rights granted to the performer. In addition, it seems that the performer could have personal non-property rights that are not related to intellectual rights, for example, the right to an individual appearance and the right to vote.

Assessment of Testamentary Capacity in Older Adults: Description and Initial Validation of a Standardized Interview Instrument.

Testamentary capacity (TC) is a legal construct, which concerns a person's mental capacity to make or amend a will. Although expert clinicians are frequently asked to assess TC in forensic settings, there are few instruments and little empirical research to inform and guide their assessments. The present study describes the development and psychometric properties of a standardized assessment measure of TC (Testamentary Capacity Instrument-TCI), and investigates its reliability and validity. The TCI is an interview-based, psychometric measure, which assesses a testator's knowledge of four conceptual elements, which together comprise the legal basis for TC in the Anglo-American legal system: (1) what a will is, (2) nature and extent of assets/property, (3) possible heirs/claimants to property, and (4) plan to distribute assets to heirs after death. Cronbach's alpha and percentage exact agreement were used to examine TCI element reliabilities. Using independent samples t-tests, MANOVA and MANCOVA, we investigated validity by comparing TCI element performance of cognitively intact older adults (n = 22) and older adults with ad dementia (n = 20). The TCI elements showed good internal consistency and good inter-rater reliability. The ad group performed significantly below the control group on all four TCI elements, with effect sizes exceeding 1.2, suggesting that the TCI has content and construct validity. Relative to cognitively intact older adults, older adults with ad dementia showed significant impairment on all four TCI conceptual elements. The TCI has promise as a standardized quantitative measure of TC to support clinical assessment of TC in forensic settings.