Constitutional Foundations Research Articles

Responsibility of Controlling Persons and the Constitutional Basis for the Protection of Property Rights: Search for a Balance of Interests

The issue of the extraordinary nature of the responsibility of controlling persons in corporate relations has not been resolved at the legislative level. In the scientific literature, this issue is actively discussed, but at the legislative level, everything has remained unchanged. The purpose was to consider the provisions of the current legislation on the liability of controlling persons in corporate relations and their relationship with the constitutional foundations for the protection of rights. The paper analyzes the current legislation and judicial practice of applying the provisions on subsidiary liability of controlling persons in the field of corporate relations in cases of insolvency (bankruptcy). Attention is drawn to the fact that bringing the persons controlling the debtor to subsidiary liability is an exclusive mechanism for restoring the violated rights of creditors, which should be reflected in the current legislation. Methods: analysis, synthesis and comparative law. The obtained conclusions are of scientific novelty and practical significance, since they contribute to the improvement of the norms of civil legislation and the development of the science of civil law.

The Dialogic Nature of Legal Communication and the Problem of Measuring the Legitimacy of Law

Communication can be monologic or dialogical. Only the latter forms are an essential characteristic of legal reality. At the same time, dialogue is conceived as an immanent feature of sociality as such. In the process of identity formation and personality socialization, dialogue is necessary and inevitable. The process of dialogic socialization ensures the reproduction of any society. Society exists only in case if there is recognition of mutual legal claims, i.e., legitimacy of law. The principle of universal trust as a constitutive foundation of sociality is at the same time the fundamental principle of a legal system. These initial philosophical and legal provisions require explication in the actual legal refraction. Designation of social situations as legal, attributing legal features to them, involves correlation of personal intention with the legal status of the Self and the counterparty in a legal relationship or in a simple form of realization of law. Thus, the relation I-You is mediated by the legal instance of It. However, it is quite difficult to measure the reciprocity of recognition of the Other as a bearer of legal status in empirical reality, especially in the field of public law. The criteria of “extreme injustice” (G. Radbruch’s formula) and “aggressive violence” (in the terminology of V.A. Chetvernin) can be used to explicate the legitimacy of law and can be specified in sociological and legal studies. This paper states the paradox of measuring of the legitimacy of law, which consists in the difference between trust in an empirically given countersubject in a legal relationship, and impersonal status of a legal institution. Trust in the institution, according to the authors, extends, among other things, to a critical attitude towards it, however, with the condition if there is a recognition of the need for its existence. Another paradox of the legitimacy of law, considered in the article, is associated with the antinomy “the ideal — the real.” Violations (non-observance) of legal norms, if they are not widespread, do not put into question the legitimacy of the legal system as a whole. In general, the recognition of law is determined not by the average result of a sociological survey, but by the understanding of the necessity and the inevitability of the Other as a carrier of a typified legal status (for example, in criminal proceedings: in recognizing the interdependence of the Self from Others as carriers of the status of subjects of law).

Organizational and legal forms and differences in the administrative and legal status of the territorial bodies of the federal executive authorities of the Russian Federation

The subject of the study is the norms of administrative legislation regulating the territorial features of public administration in Russia. The chosen topic receives a certain update against the background of the formation of the definition of "system of public authority", which is not fully covered at the doctrinal level. The purpose of the study is to assess the current state of legal regulation of the activities of territorial bodies of federal executive bodies. In the context of the functioning of the power vertical, there is a need to unify their administrative and legal status, since the unity of the public authority system is the achieved result of the constitutional reform of 2020. Methodology and research methods. As the basis of the research methodology, the author chose the formal legal method, based on the established principles of dialectical cognition. With its help, the non-transparency of the organization of territorial bodies exercising the fullness of state administration in the subjects of the federation was revealed. The main scientific results of the study are built around the hypothesis of excessive institutionalization of the territorial and central divisions of the executive authorities with the priority of subordinate legal regulation. It has been proved that in this case, both the efficiency of public administration and the trust in public law institutions on the part of civil society may decrease. Conclusions. Based on the legal nature of the territorial bodies of the federal executive authorities, it can be concluded that they are in hierarchical subordination, but at the same time they are endowed with the full implementation of the powers attributed by law to their jurisdiction. In the absence of a single normative act that would detail the constitutional foundations for the exercise of public authority, most of them are established in the manner prescribed by the normative act issued by the entity that manages the activities of the relevant federal executive authority. This practice has hidden defects that reduce the effectiveness of public administration. The best way to create a transparent mechanism of public administration is to abandon the practice of legal regulation of the administrative and legal status of the territorial bodies of federal executive authorities by by-laws. By-laws may have a certain potential in terms of the distribution of powers within the structure of the territorial body of the federal executive authority, however, “status” norms should be present in the provisions of a separate federal law regulating the procedure for the establishment, transformation and liquidation of the territorial bodies of the federal executive authority.

Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide

Abstract Although the terms “inquisitorial” and “accusatorial” (or as those in the common law world prefer, “adversarial”) are fixtures of the comparative literature on procedure, there remains considerable disagreement regarding their definitions and indeed whether to continue using them at all. Yet, despite these debates, we know remarkably little about how the terms first emerged as central to comparative analysis. This Article begins the work of recovering this neglected history. It argues that the immediate spark—especially in Germany, Italy, and France—was the ongoing debate over the French Code of Criminal Procedure, introduced through Napoleonic conquest into large portions of Europe. After the 1815 Congress of Vienna and its pact of restoration, extensive discussion arose regarding whether, and to what extent, to preserve French law—including criminal procedure. So too, in the ensuing nationalist awakening, debates raged over the constitutional foundations of government, pitting defenders of the old order against proponents of more liberal regimes. As these debates regarding criminal procedure and constitutional politics unfurled, they came to intertwine, and were framed in the 1830s in terms of the accusatorial/inquisitorial divide. Since no comprehensive account of these distinct, but intersecting, debates is possible within these brief pages, the Article focuses primarily on France—the country whose revolution and subsequent wars of conquest played such a decisive role in launching these pan-European arguments in the first place. Profoundly influenced by their liberal nationalist (and imperialist) commitments, as well as by their embrace of an historicist approach to law that was widespread among contemporary scholars, French jurists developed the accusatorial/inquisitorial distinction in ways that continue to reflect these core aspects of their mindset. This forgotten history highlights several deep-rooted continuities in how the accusatorial/inquisitorial terminology has long been deployed, affording valuable cautionary notes, while also pointing toward more fruitful lines of procedural inquiry.

Back to the Treaties: Towards a 'Sustainable' Competition Law

Competition law, especially after the advent of the so-called Chicago School, has often been viewed as a policy interested in the pursuit of economic efficiency only, and sometimes it has also been enforced accordingly. However, the call to improve – if not save – the conditions of the environment in which we live has become urgent for our economic, social and legal systems. Therefore, every policy, competition law included, must play its part, as the protection of the environment represents a core value of our societies’ constitutional foundations. In the context of competition law, this means allowing sustainability agreements aimed at pursuing environmentally friendly objectives, such as new products or productive processes. This can be reached through various means, especially by means of the exemption provided by Article 101, paragraph 3, TFEU. This article will analyse the various approaches that can lead to an innovative and environmentally friendly application of competition law, bearing in mind that the inclusion of these concerns in the assessment of competition law cases is rooted in the ‘multi-value’ approach to competition required by the EU Treaties.

Polner Ödön ismeretlen előadása az 1848. évi áprilisi törvényekről

Professor Ödön Polner (1865-1961) was one of the outstanding scholars of Hungarian public law. His legacy includes the manuscript of a lecture he gave in 1948, in which he reviewed the basic laws adopted in the first phase of the Hungarian Revolution of 1848. Within the framework of the historical constitution, these laws laid the foundations of nationalism and bourgeois constitutionalism in Hungary in the middle of the 19th century. Below, after a short description of Polner’s professional career and some introductory remarks, we publish the text of the lecture given in 1948.

Cooperation and mutual oversight between the legislative and executive authorities in the Iraqi parliament

ce of constitutional trust and the principle of separation of powers and the independence of the judiciary, as it is the constitutions that determine the form of the state, Cooperation and mutual oversight between the legislative and executive authorities play a vital role in achieving democracy and accountability in political systems. Countries need effective and balanced mechanisms that enable parliament to monitor and evaluate the performance of the government and achieve mutual balance between the two authorities in accordance with the state’s constitutions. In Iraq, cooperation and mutual oversight between parliament and the government is extremely important. To build a modern democratic state in accordance with the constitutional foundations and concepts and according to what was stated in the 2005 constitution of the Republic of Iraq. It has been shown that the existence of strong legislation issued by the House of Representatives through which control and the necessary mechanisms are provided to evaluate this performance of the government according to several methods, including those that are in accordance with the Constitution or the internal regulations of the House of Representatives Representatives, such as directed parliamentary questions, commissions of investigation, verification, interrogation, etc. Cooperation between the legislative and executive branches must be strengthened to ensure effective performance of mutual control.

Bridging Between an Effective Economy and Environmental Protection Under the Lithuanian Constitution

Abstract In 1992, the Lithuanian Constitution created the preconditions for the stable and successful economic development of the state and laid down foundations for regulating economic relationships that ensure the predictability of economic, social, and legal relationships. The article analyzes how the concept of social justice as chosen by the drafters of the Constitution influences Lithuanian economic policy, as well as what foundations are consolidated in the Constitution for the economic system and freedom of individual economic activity. A brief study is presented in order to reveal the patterns of regulation of the Lithuanian economy in constitutional law, as well as the jurisprudence of the Constitutional Court in relation to freedom of individual economic activity over the thirty years that the Constitution has been in force. Study of this jurisprudence shows that, in the first decade of restored Lithuanian independence, freedom of economic activity was particularly encouraged by the Constitutional Court, with the aim of creating the foundations for a market economy as soon as possible. Later, the main aim of the state was to ensure Lithuania’s energy independence, while in the third decade of independence constitutional jurisprudence increasingly analyzed the possibilities of finding a balance between environmental protection requirements and economic freedom. The second part of the article examines the constitutional foundations for environmental protection and the constitutional doctrine interpreting them; it is maintained that environmental protection can, in accordance with the provisions of the Constitution, be recognized as an important public interest, which may justify restrictions on freedom of individual economic activity; however, these restrictions must guarantee a balance between the two constitutional values of environmental protection and freedom of individual economic activity.

Democracy and emergency: finding the constitutional foundation of the knowledgeable state in social dynamics

AbstractThis article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state's ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico‐political constitution’. Using the example of the World Health Organization's initial response to the COVID‐19 pandemic, a the article presents a two‐part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise‐steered global governance is further intensified as more crisis responses are expected from outside the state.

ERADICATION OF CORRUPTION CRIMINAL ACTS

Corruption, at its core, tends to involve the abuse of authority and power, resulting in financial losses to the state or hindrance to the national development. Thus, it is crucial to combat this issue to achieve a just and prosperous society, as envisioned by Pancasila and the Constitution of the Republic of Indonesia in 1945.To effectively eradicate corruption, the government enacted Law Number 31 of 1999 concerning the Eradication of Corruption, which was later amended through Law Number 20 of 2002 on Corruption Eradication. Despite these amendments, corruption remains prevalent and even continues to proliferate.The occurrence of corrupt practices is often linked to individuals holding public positions, acting either on their own or in collusion with corporate entities. To minimize such misconduct, it becomes essential for superiors to exercise supervision over their subordinates. Therefore, it is necessary to establish regulations that restrict opportunities for abusing their positions.The fight against corruption requires a comprehensive approach, encompassing not only legal measures but also cultural and institutional changes. By fostering a transparent and accountable governance system, Indonesia can move closer to realizing its vision of a fair and prosperous nation based on the principles of Pancasila and its constitutional foundation..

Constitutional and legal guarantees of public control

The article is devoted to the study of constitutional foundations of public control in the context of identifying a system of appropriate guarantees. Scientific disputes about the concept and classification of constitutional and legal guarantees of the rights and freedoms of man and citizen in relation to the right of everyone to public control are analyzed. The position has been expressed in accordance with which the constitutional and legal guarantees of public control are enshrined in the rules, the provisions of which are intended to ensure the effective functioning of its subjects. At the same time, the Constitution of the Russian Federation creates the basis for public control, the specification of which takes place in Russian legislation. The novelty of the study lies in the authors proposal to single out three groups of constitutional norms that enshrine guarantees-principles, guarantees-rights and guarantees-institutions. The proposed classification made it possible to single out the last of those named above as the most effective guarantees of public control. The activities of the President of the Russian Federation and the Government of the Russian Federation as guarantors of public control are studied; their respective regulatory legal acts are analyzed.

Dalit Literature is the impact of Dr Ambedkar’s philosophy with reference to V. T. Rajshekar's 'Caste-A Nation within Nation'

V. T. Rajshekar’s book ‘Caste – A Nation within the Nation’ (2007), which shifts his fundamental tone from protest to more serious analysis, is a turning point in his creative career. It explains how particular communities become marginalized within the confines of a nation-state. Even though casteism is implemented in all social institutions, caste is still a contentious subject in India, according to Rajshekar, who starts the book with this assertion. He makes the observation that in order to understand how deeply ingrained casteism is in India, one must look at the institution of marriage. He claims that the newspaper matrimonial pages are blatantly casteist and oppose caste integration, which should logically take place in a democracy. Rajshekar makes the point that knowledge of a country without knowledge of its castes and subcastes is essentially lacking. People, according to him, do not even realize that Indian society is made up of several castes and communities rather than being one cohesive community. Rajshekar claims that the caste system was created as a result of upper caste predominance, which led to rigorous social classification and, ultimately, a structure that may lead to war. He also demonstrates how the constitutional foundation can be used to address the marginalization of some communities within the framework of a nation-state. The book is a blatant allegory of the unethical power struggles in 20th-century India. In order to examine the viewpoint on discrimination of the lower strata of society, this research paper attempts to undertake a close study of Dr. Ambedkar’s work and its influence on literature. He also explains the marginalization of certain communities that happens within the framework of a Nation-state that can be solved by the constitutional base. The novel is a transparent allegory of the dirty power politics of the twentieth-century India. This research paper also tries to make a close reading of Dr. Ambedkar’s work and its impact on literature to assess the view on discrimination of the lower strata of society.

THE FOUNDATIONS OF AN INNOVATIVE UNDERSTANDING OF THE ESSENCE, CORRELATION, PROCEDURE AND LIMITS OF THE LEGITIMATE PUBLICATION OF KNOWINGLY AND UNKNOWNLY RELIABLE AND UNRELIABLE NEWS IN OF JURIDICAL, JOURNALISTIC OR OTHER MASSMEDIA PROVING OR IN PUBLIC DISCUSSION

It is emphasized, that by known reliable news it is appropriate to understand those, that fully correspond to the actual circumstances of the action (actions or inactions of an individual or a small group of people), events (actions or inactions of very large groups of people, when it is impossible to establish the role in achieving the overall result of each of participants, for example, in the course of the war, etc.) or phenomenon (action or inaction of the forces of nature, including predatory animals, that are in conditions not regulated by humans) in general or a certain part of it, and peculiarities of perception, memorization, their storage, reproduction and other transmissions by a certain person, including life experience or relevant special or professional competence contribute to the transmission or other disclosure of practically adequate news. Attention is focused on the fact, that according to the basic orientation of the result of their public disclosure, each of the named types of news can be divided into those, that condition their perception by the majority of addressees as positive, negative and positive-negative, and negative information – also as neutral, socially harmful and socially dangerous news, when the last two types of news, depending on the level of public danger as a result of their public disclosure, may create conditions for the recipients to commit relevant criminal and other offences. On the basis of the above, it is proposed to improve the constitutional foundations of the legitimate implementation of any type of juridical, journalistic and other mass media proving or public discussion in terms of the freedom of not just any, but only knowingly reliable speech, as well as specified circumstances under which publication may be limited and knowingly reliable news.

Concept of Public Administration in the Context of Globalization

The article considers the constitutional foundations of public administration in the context of globalization. The current legislation in the field of public service does not meet the quality requirements of the law since it does not establish the basic principles, the sequence of stages, and their essence regarding the competition, promotion, and certification of public servants. Therefore, this issue has been regulated at the level of by-laws, which contradicts the constitutional order. This concerns both the scope and content of human rights and freedoms, as well as the criteria for their restrictions provided by the Constitution and laws. In practice, the appointment of officials to bodies and institutions will mean reaching a consensus since it considers the representation of political forces. Members of such independent bodies and institutions should be appointed for a certain period and have a limited right to hold office. They cannot be dismissed at the discretion of public authorities but only through a judicial procedure. This will guarantee the independence of these bodies in the context of globalization transformations.

Сertain problems of ensuring the constitutional principle of rule of law in the process of control over abuse of a monopoly position

The article is devoted to the study of the problems of implementation of constitutional foundations of state protection of competition in Ukraine, namely, the problems of ensuring the constitutional principle of rule of law within the process of conducting control by the bodies of the Antimonopoly Committee of Ukraine (the "AMCU") over compliance of undertakings occupying monopoly (dominant) position on relevant markets with legislation on protection of economic competition. Analysis of relevant Ukrainian legislation, as well as practice of its application, shows that there is a number of problems related to ensuring the rule of law principle in the researched area in practice, in particular, in terms of predictability of application of Article 13 of the Law of Ukraine "On Protection of Economic Competition" (the "Law") setting grounds for qualification of an infringement in the form of abuse of a monopoly (dominant) position. This is explained by use of broad formulations and evaluative concepts in the above article, which may have different interpretations. At the same time, breadth and certain abstractness of the formulations seem to be justified, as infringement can have a wide number of manifestations that objectively cannot be clearly reflected in the legal norm. Due to such specificity, leading role in eliminating legal uncertainty should be assigned to the law enforcement practice of the AMCU’s bodies and courts.
 Currently, the law enforcement practice does not provide answers to a number of fundamental questions regarding application of Article 13 of the Law, which results in blurred boundaries between permissible and prohibited behavior for undertakings occupying monopoly (dominant) positions. Existing legislation, as well as law enforcement practice, does not provide clear and unambiguous legal guidelines when certain behavior of an undertaling occupying a monopoly (dominant) position is deemed legitimate, and when it becomes unlawful (abuse of monopoly (dominant) position), which consequently creates legal uncertainty. Considering specifics of legislation on protection of economic competition, one of possible ways to eliminate such uncertainty could be issuance of recommended explanations/methodological recommendations by the AMCU to be developed with due account to best world practices, primarily, of the European Union, and clarifying the AMCU’s general approaches towards assessment of certain commercial practices specifically as abuse of monopoly (dominant) position, with outline of legal and economic methods for establishing the above infringement depending on its different types indicated in Article 13 of the Law.

LEVANDO AS ESTATAIS A SÉRIO: UMA ABORDAGEM DE FUNDO

The study investigates the reasons that justify the introduction of state-owned enterprises into the economic domain, thereby shaping the contours of the Brazilian entrepreneurial State. To this end, it examines the relevant constitutional foundations, the economic and political reasons that inspire public entrepreneurship, and the justifying public interest.

The Welsh criminal justice system: On the jagged edge By R.Jones, R.W.Jones, Cardiff: University of Wales Press. 2022. pp. 292. £24.99 (pbk); £24.99 (ebk). ISBN: 9781786839435; 9781786839442

The Welsh criminal justice system: On the jagged edge By R.Jones, R.W.Jones, Cardiff: University of Wales Press. 2022. pp. 292. £24.99 (pbk); £24.99 (ebk). ISBN: 9781786839435; 9781786839442

Providing the Context for the Debate on the “Human” Imagined in the Drafting of the ANC’S Constitutional Guidelines in Lusaka, 1985–89

Abstract This article attempts to provide an historical context for current debates on South Africa’s 1996 constitution. It argues that the template for the new Constitution was forged by the anc in Lusaka, Zambia between 1985 and 1989, well before the ‘unbannings’ of February 1990 which are generally assumed to have been the starting point of the constitution-making process. The author outlines how the organisation and its allies wove constitutionalism in as one of the distinct threads of an enormously complex, multifaceted and sometimes contradictory process of struggle and constitutional planning that finally pushed the regime into a corner and led to the unbannings of 1990. Besides re-periodising the constitution-making narrative, the article stresses the African ‘essence’ of this struggle and the importance of African agency and ideas in forging the constitutional foundations for the future. Multiple levels of intergenerational experience, thinking and nuance are not catered for in often sloganised debates about the Constitution’s origins. This will require scholars interested in the decolonial project to self-interrogate sometimes mechanistic assumptions about the “inherited” Western underpinnings of the Constitution, it concludes.

CONSTITUTIONALISM AT COMMON LAW: THE RULE OF LAW AND JUDICIAL REVIEW

AbstractUK public law is often viewed as a sophisticated power struggle between rival institutions, an approach encouraged by the assumption that the law is ultimately dependent on such contingencies as the existence of an official consensus about its sources. From that perspective, legal judgments should be read as strategic moves within the political power-game. We can make better sense of public law if, instead, we interpret it as the articulation and enforcement of standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity. The rule of Law denies the legal validity of arbitrary, unjustified assertions of power inimical to those ideals. Positive law is, at root, an instantiation of natural law, as the interplay of legal rule and underlying principle, characteristic of common law reasoning, confirms. There are important implications for our understanding of the constitutional foundations of judicial review, the limits of parliamentary sovereignty, the nature of the principle of legality, and the scope and content of fundamental rights.

WELFARE STATE AND NEW NORMS OF THE CONSTITUTION OF UZBEKISTAN

The article discusses the functions, the concept of a welfare state. Studied social security as a function of the welfare state. The author paid attention to the ideas, emergence and development of the social state. And also analyzed the constitutional foundations of the social state and its significance for the citizens of Uzbekistan .The exercise of the constitutional right to social security can be organized in various forms, which are usually distinguished according to such features as the range of those provided; sources and methods of formation of funds to finance relevant activities; types of security; conditions and amounts of security; security agencies.