Court Of First Instance Research Articles

Legal Protection for Parties in Making Authentic Deeds from Legal Deviations by Notaries

The position of a Notary is required by laws and regulations with a view to assisting and serving the public who need authentic written evidence, but a Notary in carrying out his profession commits a crime of forgery of letters in making an authentic deed so that a Notary who is consciously, intentionally or involved in making fake authentic deeds can be accounted for in criminal law. This writing aims to find out the legal protection for the victim who is harmed in making an authentic deed containing false information and the notary's responsibility in making the deed. The research method used in this thesis is a normative juridical approach, namely legal research carried out based on the main legal material by examining theories, concepts, legal principles and legislation related to research, this approach is also known as with a library approach, namely studying books, laws and regulations and other documents related to this research. The results of the study found that the Notary in making an authentic deed had fulfilled the elements of the criminal act of forging letters against an authentic deed in Article 263 paragraph 1 and Article 264 paragraph 1 to 1 of the Criminal Code. Legal protection for the victim takes legal action by reporting to the police and bringing the case to the Court of first instance, the level of appeal, and the level of cassation. So that the Notary is charged with responsibility in the form of imprisonment because it has been legally proven guilty of committing a criminal act of forging letters against an authentic deed.

Appeals against decisions, actions or inactivity of authorities regarding the provision of pub- lic services in the field of migration and citizenship in court

The scientific article is devoted to the coverage of the court procedure for appealing against decisions, actions or omissions of public administration entities regarding the provision of public services in the field of migration and citizenship. It has been established that an administrative appeal, despite the optionality, is an important step in the provision of public services in the field of migration and citizenship. On the one hand, the appeal is intended to identify and eliminate shortcomings in the practical procedural activities of public authorities in the field of migration; on the other hand, contributes to the improvement of the procedural model of resolving individual cases in the research area, identifying its defects and weaknesses.Emphasis is placed, the legislative consolidation of the possibility of appeal in court and administratively re-quires two forms of appeal - administrative-procedural and administrative-procedural, which together create a guar-antee tool to protect the rights of individuals to citizenship and freedom of movement and free choice of residence.It is established that the presence in the Register of the subject of the claim and the requirements of the plaintiffs - №№ 820/4847/17, 815/2412/14, 820/4393/17, 495/8188/16-a, etc. - allows us to consider the analyzed case as a typical example. Again, based on the results of the case study, it can be concluded that in the activities of LCA units it is common to make administrative decisions on the basis of discretion, rather than legal requirements; Violations committed by public authorities in administrative and procedural activities turn into a threat of loss of legal status and rights for individuals from whom no violations have been committed. This situation cannot be considered an effective example of law enforcement in the field of administrative and procedural support in the field of migration.Given the importance of protecting the rights and freedoms of individuals as a party to public relations in the study area, the possibility of appealing against decisions, actions or omissions of public authorities in this area should be recognized as an important guarantee of preservation and restoration of individual rights. In these exam-ples, the judiciary has performed this protective function; to strengthen this trend, it would be rational to use the tool of an exemplary administrative case, which has become one of the most anticipated novelties in the reform of administrative justice. According to Part 22 of Art. 4 CAS of Ukraine an exemplary case is a typical administrative case accepted for proceedings by the Supreme Court as a court of first instance to issue a model decision; in other words, with the help of an exemplary case, an effective procedural mechanism of consideration of cases similar in scope and specifics of legal relations in which the conflict arose, composition of the parties and legal norms by which they are regulated, following the example of the Supreme Court decision in one such case, that is, in an exemplary case.

Mediation in criminal proceedings

Іn the article the author investigates the institute of mediation, which acquires its development not only in civil and commercial proceedings, but also in criminal proceedings and is a manifestation of the concept of restorative justice. As a confirmation of the relevance of the research topic, judicial statistics of consideration of materials of criminal proceedings on the basis of agreements by courts of first instance are given, which confirms the necessity and importance of such a legal institution.The norms of international normative legal acts, where the institute of mediation was embodied, are analyzed. Also are considered the main provisions on the application of agreements in the criminal procedure legislation of Ukraine. It was stated that mediation is possible within the framework of the conciliation agreement.The opinion is expressed that the application of the relevant legal institution in criminal proceedings will facilitate the adoption of a special law «Mediation» and analyzed the lawmaking in this area. The next step could be amending the criminal procedure legislation of Ukraine. Number of issues need to be clarified, including: what will be the status of a mediator in criminal proceedings (his rights and responsibilities, guarantees of independence, etc.); what is the procedural order of mediation; what is the procedural form of completion of the mediation procedure and some others.Particular attention is paid to the definition of a person who can be a mediator and his legal status in criminal proceedings. The positions of scientists who believe that mediators can be prosecutors, lawyers and psychologists are considered. The opinion was expressed regarding the acquisition of special education by such a person and the acquisition of relevant knowledge and skills.It is concluded that the punitive-repressive approach to counteracting the commission of crimes is not effective enough, so it is necessary to introduce mechanisms of alternative conflict resolution procedures, in particular, medi-ation. At the same time, implementation of mediation requires further scientific reflection and discussion, as well as the political will of the legislator to adopt the relevant law and amend the criminal procedure legislation.

YM v LB (465/09) [2010] ZASCA 106 (17 September 2010)

In this matter, which resulted in an enquiry by the Supreme Court of Appeal and ultimately a unanimous decision, the facts were the following: the appellant, Mrs Y M (M) appealed against an order that she and her minor daughter (Y) submit to DNA testing to determine whether Mr L B (B), the respondent, was the biological father of Y. The order was sought by B, who also claimed that, if the tests proved that he was indeed the father, he should be given full parenting rights. The North Gauteng High Court (Pretoria) (Murphy J sitting as court of first instance), ordered that M submit herself and Y to DNA tests within 30 days of the date of the order, and postponed the other relief sine die. The Supreme Court of Appeal granted leave to appeal. On appeal, B filed no heads of argument, and nor was there any appearance on his behalf.

Regulation of Work Breaks in Hungary with a European Perspective

The basis for the review of the Hungarian and European rules of the rest break during the working day was the fact that there was a lawsuit to establish the illegitimacy of termination, in which I represented the plaintiff. The reason for the summary dismissal on the part of the employer was that the employee was playing cards while on a rest break during the working day. In his action, the plaintiff sought a declaration that his employer had unlawfully terminated his employment. By the judgment of the Court of First Instance, the action was dismissed, and the plaintiff was ordered to bear the court costs. By the judgment of the Court of Law proceeding by the plaintiff’s appeal, the judgement was reversed, and it ordered the defendant to pay the plaintiff severance pay as well as compensation. The defendant presented an application for review, which was not upheld. After completing the matters of fact, the Court of Appeal correctly stated that, at the time of the inspection, the plaintiff availed himself of a rest break during the working day, which was lawful; moreover, it was not disputed by the defendant. The Court of Appeal rightly concluded that the employer may prohibit the employee from playing cards during breaks in the workplace, but this must be communicated unequivocally to him, and this expectation must be consequently carried out. The Court of Appeal also rightly pointed out that in the case of explicit prohibition of some behaviours, employees must also be informed of the legal consequences, which are applicable in case of infringement of the rule. However, in the present case, this was not established, so that the lawsuit ended with the full recovery of a favourable judgment of the employee plaintiff at the Supreme Court of Justice.

A Supplementary Court Decision in Civil Proceedings

A supplementary decision is intended to eliminate the incompleteness of the court decision passed in the case. It is derivative and, therefore, dependent on the decision of the court in the case, but regarding other issues it is autonomous (independent). The author criticizes formal explanations about the possibility of making a supplementary decision exclusively by the same court panel that made the decision on the case, as well as about returning the appeal along with the case to the court of first instance for making a supplementary decision. It is proposed to give the right to raise the issue of making a supplementary decision regarding the distribution of court costs for forensic examination carried out by experts and expert organizations on an equal basis with the court and the persons involved in the case, as well as equate the period for raising this issue with the time limit for appealing the court decision. The author contends the impossibility of presenting new (additional) evidence when the court considers the issue of making a supplementary decision, as well as the impossibility of restoring the procedural period missed for the delivery of this issue. It was revealed that a supplementary decision can also be made in the case when the resolution of a particular issue by virtue of the law is mandatory for the court. The author determines alternative ways for completing the court decision on the case, if the possibility of making a supplementary decision is lost. Attention is drawn to the ambiguity of the assessment given to the supplementary decision as a mechanism for replenishing the court decision in the case due to its objectively inherent shortcomings

Przyszła reforma procedury karnej. A może by tak sięgnąć po no case to answer?

The article criticizes the changes to the criminal procedural law in Poland in the years 2016–2020 and proposes to start work on the draft of a completely new Code. It focuses on the possibility of introducing the common law legal institute of no case to answer institution into the Polish procedure, which, on the one hand, would strengthen the procedural guarantees of the accused person, and on the other, could contribute to increasing the effectiveness of the proceedings. The author formulates the boundary conditions that must be met in order for the introduction of the said institution to be possible. The most important of these is the return to the concept of full adversarial evidence proceedings at the trial before the court of first instance.

PLEDGE AS A PRECAUTIONARY MEASURE IN CRIMINAL PROCEEDINGS: SOME PROBLEMATIC ASPECTS

The article analyzed court statistics on the consideration of requests for the application of precautionary measures by the courts of first instance and it is established that detention remains one of the most common. Was emphasized that the rulings of the European Court of Human Rights suggest that detention should be an exceptional precautionary measure. An alternative to it may be a pledge. The characteristics of pledge were described as precautionary measures, which are defined in the relevant provisions of the Criminal Procedure Code of Ukraine. The problematic issue of determining the amount of the pledge is considered. The case law of the European Court of Human Rights is analyzed and the main rules for determining the amount of pledge are highlighted: application of a differentiated approach; justification of the amount of pledge not only during the initial consideration of the request for the application of a measure of restraint, but also during the decision on the need to continue detention; accounting the amount of damages for which this person is accused. It was stated that the norms of the criminal procedure legislation in this part correspond to the practice of the European Court of Human Rights, and the amount of pledge is correlated with such indicators as the circumstances of the criminal offense; property status of the suspect, accused; data on his identity; the presence of risks of concealment, possible influence on the participants in criminal proceedings and various ways of obstructing the pre-trial investigation, referred to in article 177 Criminal Procedure Code of Ukraine. The issues of discussion regarding the maximum size of pledge and it is concluded that in Criminal Procedure Code of Ukraine are expanded list of conditions that the court considers the election of a preventive measure, and therefore the court will be able, within the statutory amount of pledge, to choose the one that can ensure a balance between the private interests of the person (won’t be excessive) and the interests of justice (ensure that suspects and accused perform their duties). It is argued that clarifying the legality of the origin of pledge and expanding the list of objects that can be recognized as pledge in the sense of a precautionary measure can only complicate the procedure for applying pledge.

Regarding the possibility for the prosecutor to carry out procedural actions in case the court returns the indictment

The article examines the possibility of the prosecutor to carry out procedural actions after the court of first instance returns the indictment from the preparatory court hearing, petitions for the application of coercive measures of medical or educational nature, if they do not meet the requirements of the CPC of Ukraine. Analysis of the grounds for returning these procedural documents for revision shows that they are different in nature. Some of them are of a formal nature (the date and place of drawing up these documents are not specified, the signatures of the investigator and the prosecutor are not placed, etc.). The formal grounds for returning the indictment and other documents mentioned above do not create any difficulties for the prosecutor in correcting them: they eliminate them, after which these documents are again sent to the court of first instance. Simultaneously, the grounds for returning these procedural documents for revision may be with more serious shortcomings (the accusation formulated by the investigator is vague, there are no established circumstances that aggravate or mitigate the punishment, etc.). When the court determines other grounds for their return, the prosecutor's decision on these grounds is more difficult. And the main problem is the possibility of conducting investigative (search) and other procedural actions to correct the shortcomings in these documents. It is concluded that the Ukrainian criminal procedure legislation does not contain a mechanism for regulating this issue, and the case law and opinions of lawyers are not unanimous and are often contradictory. Due to these and other reasons, this problem continues to exist today, creating discomfort in the activities of both prosecutors and courts of first and second instance. The arguments presented in the article substantiate the right of the prosecutor, if necessary, to conduct the necessary investigative (search) and other procedural actions to correct the identified deficiencies in these procedural documents. To fill the current legal gap on this issue, to eliminate differences in its resolution by judicial authorities and prosecutors, it is proposed to make appropriate additions to the provisions of paragraph 3 of Part 3 of Article. 314 of the Criminal Procedure Code of Ukraine. Keywords: pre-trial investigation, indictment, court of first instance, preparatory court session.

The Adversarial Proceedings Principle in the Civil Process

One of the most important principles of civil process is the adversarial proceedings principle. This principle characterizes the civil process from its beginning in the trial in the court of first instance, in the court of appeal, until its conclusion in the High Court. Moreover, with the new changes that have been made in the civil procedural law, this principle finds application even before the beginning of the trial in the first instance. According to these changes, the party against whom the lawsuit is filed, before the trial against this party begins, has the right to present its claims against the lawsuit, in a document called “Declaration of defence”, leaving enough time for the fulfillment of this right for a period of 30 days. This scientific work will consist of tëo main issues. The first issue will address the meaning and importance of the adversarial proceedings principle in the civil process. In this issue, two different systems will be analyzed in the application of this principle, analyzing the advantages and disadvantages of each of them. The second issue will analyze the elements of the adversarial proceedings principle, looking at these elements in practical terms and the consequences that their non-implementation may bring. In this scientific work, the adversarial proceedings principle will be seen as part of the fair legal process provided by the Constitution of Albania and analyzed in several decisions of the Constitutional Court of Albania. This principle will also be addressed in the framework of international law, focusing on the way in which this principle is expressed in Article 6 of the European Convention on Human Rights and in the decisions of the Strasbourg Court regarding the fair legal process. At the end this scientific work will be given its conclusions, as well as the bibliography where this work is based.

Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying

Jimmy Lai, a media tycoon supportive of the democratic development of Hong Kong, is the most prominent person arrested under the National Security Law (NSL) since its coming into operation in June 2020. The Court of First Instance granted him bail under stringent conditions, but the decision was reversed on the prosecution’s appeal. The decision of the Court of Final Appeal (CFA), being its first on the NSL, will set the tone for the judiciary in its approach to this controversial piece of legislation. This article analyses the positive and the negative aspects of the CFA’s judgment. It argues that the Court has unnecessarily entered into a jurisdictional question when this could have been avoided. It criticizes the Court for having too readily accepted that Article 42 of the NSL has displaced the common law presumption in favour of bail, without sufficiently examining whether this acceptance is necessary or proportionate to the presumption of innocence and the right to bail that are also protected by the NSL. While the hands of the Court may be tied, it warns against the risk of the Court not holding a draconian provision to the utmost scrutiny.

Problems of the realization of the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms in the appeal of cases of administrative offenses

The article examines the problems of the realization of the requirements of Article 6 of the Convention for the Protection ofHuman Rights and Fundamental Freedoms in the appeal of cases of administrative offenses. It is emphasized that control of the appellatecourt over compliance with the requirements of Art. 6 of the Convention by the court of first instance is an important task to ensurethe implementation of the requirements of a fair trial. It should be noted that, in accordance with judicial practice, the violations by thecourt of first instance of the requirements of Art. 6 of the Convention are deemed to be a significant violation of the Criminal ProcedureCode of Ukraine, cause the reversal of the sentence with the referral of a case of administrative offenses to a new trial. In particular,these violations include: sentencing by an illegal court in violation of the rules of jurisdiction (the right to a court established by law),violation of impartiality of the court (sentencing by a court, which previously expressed on guilt and evaluation of evidence), violationof the right to defense (including any manifestations of violation of this right, that is trial without the participation of defense counsel,with the participation of defense counsel, but without effective legal assistance, failure to give the defendant the final statement or theright to participate in debates, absence of an attorney during the final statement, failure to report 5 days in advance about the day, timeand place of the court hearing of the court of first instance).It is concluded that it is necessary to improve significantly the legislation and law enforcement practice in order to realize therequirements of a fair trial during the appeal of cases of administrative offenses. Further development of the appeal in line with therequirements of Art. 6 of the Convention should take place either in the direction of specifying the exact list of cases of necessity ofjudicial investigation according to the rules of the court of first instance, or by recognizing that the modern appeal is not able to elimi -nate any violation of Art. 6 of the Convention, as this is possible only if the case is re-examined by a court of first instance. However,both options have significant disadvantages. The first one entails some organizational and technical problems associated with ensuringthe appearance of witnesses from remote areas, the need to provide all district courts with the means of communication to ensure theinterrogation of witnesses and victims, whose appearance in court of appeal is difficult to ensure. The second one entails the shortco -mings associated with the increase in the terms of the proceedings, and so on.

РАЗВИТИЕ НОРМ О ПОДГОТОВКЕ ГРАЖДАНСКИХ ДЕЛ К СУДЕБНОМУ РАЗБИРАТЕЛЬСТВУ В ЦИВИЛИСТИЧЕСКИХ ПРЕЦЕССУАЛЬНЫХ КОДЕКСАХ РОССИЙСКОЙ ФЕДЕРАЦИИ

The article highlights the stages of development of legislation regulating preparatory procedural actions in civil cases in courts of general jurisdiction and arbitration courts. The author notes that the Decrees of Peter the Great had an important impact on setting the time limits for the performance of some procedural preparatory actions in the 18th century. The adoption of the Charter of Civil Procedure of 1864 consolidated preliminary written preparation as an important stage in the proceedings that carried out based on adversarial and equality of rights of the parties. The author comes to a conclusion that the stage of preparing the case for trial practically did not exist until 1929, since the 1923 Civil Procedure Code of the RSFSR reduced the essence of the preparation only to the judge’s right to collect necessary evidence for the resolve of the case at the request of the plaintiff and beyond the objections of the defendant. It is noted that the RSFSR Civil Procedure Code, adopted in 1964, also did not call the preparation of the case for trial a mandatory stage of the process; and only in the Resolution of the Plenum of the Supreme Court of the RSFSR of 19 March 1969 “On the Preparation of Civil Cases for Trial” preparation was indicated as independent stage and is obligatory in every civil case. The author emphasizes that the adoption in 2002 of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation significantly changed the preparation of the case for trial, imparting an adversarial character to the preparatory actions. The legislative fundamentalization of this stage allowed the author to present the preparation of the case for trial as a system consisting of two interconnected subsystems (guided and regulatory). The author notes that a systemic approach to studying the preparation of cases for consideration makes it possible to identify the role of preparatory procedures in civil procedure, to regulate the interaction between the court and the parties, to predict possible results from preparatory procedures, and find out the balance between the purposes and aims of preparation at each stage of the proceedings. A comparative analysis of the norms of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, which regulate the rules on the disclosure of evidence, made it possible to come to the conclusion that it is inexpedient to stipulate in the Civil Procedure Code of the Russian Federation the obligation to disclose evidence without establishing measures of responsibility for its failure to comply. Attention is drawn to the inconsistency of the legislator, who defines Article 132 of the Code of Administrative Proceedings of the Russian Federation as “Aims of Preparing an Administrative Case for Trial”, but does not indicate any of them. The author offers a list of such aims. Noting the specifics of administrative proceedings, the author states that such a problem of preparing an administrative case for trial as reconciliation of the parties can be singled out with a certain degree of conditionality, since the court promotes the reconciliation of the parties if reconciliation is possible in this category of administrative cases. On the contrary, in civil and arbitration proceedings the central place in the modern model of preparatory procedures in the court of first instance should be occupied by two interrelated goals: the first is aimed at maximizing the possibilities of reconciliation of the parties, the second is aimed at the qualitative preparation of the case for consideration in court, in connection with which the importance of the stage of preparing the case for trial is growing, since in the event of conciliation or refusal of the claim, the goal of the proceedings can be achieved without trial. In her study of the problems of scientific understanding of the purposes and aims of both preparatory procedures and entire civil proceedings, the author comes to the conclusion that the effectiveness of judicial protection is directly dependent on the implementation of the targets based on constitutional provisions of civil, arbitration and administrative proceedings. Exploring foreign experience, the author points out that along with effective dispute resolution, a social function becomes an important component of the purpose of civil legal proceedings, without which domestic justice cannot do. In many ways, this should contribute to legislative consolidation of conciliation among the aims of civil, arbitration and administrative proceedings.

SOME ASPECTS OF THE APPEAL IN ECONOMIC JUDICIAL PROCEEDINGS

The issues of organizational changes that the courts of appellate instance have undergone, as well as the content of the norms of economic procedural legislation, which enshrine the features of appellate proceedings. The peculiarities of appellate proceedings as an independent stage of economic litigation are considered, which include the following: a) an appeal is filed against a decision of a court of first instance that has not entered into force; b) review of court decisions on appeal is carried out by the courts of appeal; c) the right to appeal has the participants, as well as persons who did not participate in the case, if the court has decided on their rights, interests and (or) responsibilities; d) the appeal is filed directly with the court of appeal; e) the subject of review of the case by the court of appellate instance is the verification of the legality and validity of the decision of the court of first instance; f) the limits of review of the case in the court of appeal, as a rule, are limited by the arguments and requirements of the appeal; g) in the court of appellate instance cases are reviewed according to the rules of consideration of cases in the order of simplified claim proceedings, taking into account the features provided by the Code. It is proposed in order to avoid (reduce) cases of unfounded filing of appeals to supplement Art. 254 Code of Economic Procedure of Ukraine norm on the grounds of appeal of court decisions such as defined in Part 2 of Art. 287 of the Code of Economic Procedure of Ukraine on the grounds of cassation appeal. It is noted that the current version of the Code of Economic Procedure of Ukraine does not contain rules that would determine what procedural actions and within what period the appellate court should take to recover the case from the court of first instance, and during what period the court of first instance should consider the case her appellate court. Arguments are made against the use by courts of the so-called "procedural analogy" in cases. Other proposals are being made to improve the current procedural legislation.

Participation of the prosecutor in consideration of civil cases by the courts of appeal

The object of this research is the social relations that emerge in the context of participation of the prosecutor in consideration of civil cases by the courts of appeal, as well as the problematic aspects of the exercise of his powers in consideration of such cases. The author analyzes the essence of prosecutor's participation in consideration of civil cases by the courts of appeal, and the possibility of attributing such participation to one of the forms of prosecutor’s participation in consideration of civil cases by the courts. The subject of this research is the case law materials, legislative norms that regulate the indicated social relations, as well as the developed positions pertaining to the essence and separate aspects of the prosecutor's participation in consideration of civil cases by the courts of appeal. The prosecutor’s participation in the appellate instance has traditionally been the subject of research among legal scholars; this is associated to the specifics of this institution, that incorporates the elements of consideration of cases by the courts of first instance and their revision, which, in turn, generates discussions on the composition and procedure for the exercise of powers of the prosecutor participating in the appellate instance. At the same time, such research mostly dealt with participation of the prosecutor in consideration of criminal cases by the courts of appeal, while the problematic aspects of prosecutor’s participation in consideration of civil cases by the courts of appeal remained virtually unstudied, which defines the novelty of this work. The author formulates recommendations on the amendments to the current legislation on the forms of prosecutor’s participation in consideration of civil cases by the courts and the procedure for participation in consideration of civil cases by the courts of appeal, the implementation of which would allow the prosecutor’s office to achieve the goal of protection of citizens’ rights and optimization of consideration of civil cases by the courts of appeal.

THE LEGAL PRINCIPLE OF THE NEWEST SYSTEM OF UKRAINIAN LAW IN THE ACTIVITY OF THE JUDICIARY IS LEGALIZED

Objective: to study the rule of law as a principle in the judiciary in such aspects as to clarify the origins of the idea of the rule of law, the relationship between the concepts of the rule of law and the judiciary, analysis of relevant doctrine in Ukraine. Methods: dialectical, hermeneutic, prognostic, comparative-legal, formal-logical, method of modeling, decomposition, complex analysis, intersectoral method of legal research, logical methods that were used as tools to achieve this goal. Results: applying the principle of the rule of law, the judge must remember it as a global goal of justice - the rule of law in society. The resolution of every dispute and any legal conflict must be aimed at adhering to this principle. Discussion: from a practical point of view, the rule of law determines the place of the judiciary in the system of public power, which should attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and the executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally - an element of the concept of the rule of law) brings together the concept of the rule of law and the idea of the rule of law in modern conditions. The principle of the rule of law in the modern state is studied. Emphasis is placed on the scope of the rule of law, which includes: legality, which provides for a transparent, accountable and democratic process for the implementation of legal provisions; legal certainty; prohibition of arbitrariness; access to justice; respect for human rights; prohibition of discrimination; equality before the law. Conceptually, the rule of law is to limit the arbitrariness of public authority over society and the individual. Different ways of establishing the system of the rule of law (the court through the application of human rights directly forms the system of the constitution - the English tradition; it is created by the people through the exercise of constituent power - the European continental tradition) are not fundamental. From a practical point of view, the rule of law determines the place of the courts in the system of public power, which must attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally an element of the rule of law) brings together the concepts of the rule of law and the rule of law. The article is devoted to a comprehensive study of the theoretical foundations of judicial law enforcement in Ukraine as a special process of practical achievement of the rule of law in the daily activities of courts, carried out after the constitutional reform of justice in 2016-2017. The acute theoretical and applied need to find ways and means to ensure the unity of law enforcement after this reform, which allowed to form a new scientific approach to solving problems of judicial law enforcement. The problem is solved with the help of intersectoral methodology and integration in law, given the expansion of the functions of the judiciary, in particular, in terms of increasing the law-making role of courts (the theory of «soft» separation of state power). The article proves that the current state of transit legislation in Ukraine leads to the fact that the courts of first instance (sometimes - the appellate court as courts of first instance) take on challenges - to consider the case, guided by the rule of law, taking into account not only the balance of public and private interests, but often the existence of gaps in laws or applying poor quality legislation. The result of judicial enforcement in such cases is the completion of a rule of law, which in fact can be considered a judicial rule and become the basis for the emergence of a new law, the maintenance of which during the review of the court decision gives it a precedent, and thus lower courts promote judicial supremacy.

Opodatkowanie nabycia nieruchomości w drodze działu spadku. Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 13 października 2015 r. (II FSK 2133/13, LEX nr 1808541)

<p>The commented judgement concerns the taxation of acquisition of immovable property by inheritance division. In the applicant’s opinion dissolution of co-ownership is not an acquisition of assets if it is within the share which the former co-owners had in the common property and was carried out without any repayments or surcharges. If the acquisition of one-half of the property occurred upon the death of the testator, but through the subsequent abolition of co-ownership, the applicant acquired nothing more than what he already owned, the abolition of co-ownership does not constitute an acquisition and has no tax consequences. According to the tax authority, this position is incorrect. The applicant acquired half of the share in the property by way of inheritance and division of inheritance and a half share in the property by way of abolition of co-ownership. The administrative courts have held that the tax authority’s position is incorrect. In administrative cases, it may be necessary to use external systemic interpretation and reference by the administrative authorities to the relevant provisions of civil law. In the Supreme Administrative Court’s opinion, point of the dispute in this case is based on the conclusion what date should have been taken as the date of acquisition of the property (interest in the property). Resolution of this issue required a detailed analysis of the provisions of the Civil Code. Although, not all relevant issues have been considered by the Voivodeship Administrative Court, the decision of the court of first instance is in fact lawful. The gloss is approving and declares that the position taken in the judgement of the Supreme Administrative Court is correct.</p>

ISLAMIC JURISDICTION SYSTEM IN SAUDI ARABIC

This paper will discuss the Islamic justice system in the country of Saudi Arabia. Through a normative juridical approach it can be described that Saudi Arabia is an Islamic country that is consistent in implementing criminal law. In contrast to the continental legal system and the anglo saxon which are guided by the policies of the Government, Parliament and the judiciary. In addition, in practice, Islamic criminal law is also guided by the opinion of the school, both the official school, namely the hambali school or other schools. Thus it can be concluded that the judiciary bodies in Arab countries are entirely guided by Islamic law, because Islamic law is the positive law. On the other hand, it also does not codify the law because it can narrow the space for ijtihad to move and the sources of legal making, but this in turn can lead to different judges' decisions. For this reason, there is Majlis al-A'la li al-Qadha (Supreme Court of Justice) to oversee the decisions of the court judges under their ranks. In addition, the hierarchy of judicial bodies in the Arab country consists of three levels, namely the High Court as the Supreme Court, the Court of Appeal and the Court of First instance.

ОСОБЛИВОСТІ ПРИТЯГНЕННЯ ВОДІЇВ ДО АДМІНІСТРАТИВНОЇ ВІДПОВІДАЛЬНОСТІ ЗА СТ. 124 КУпАП У КОНТЕКСТІ ПОШКОДЖЕННЯ СКЛАДОВОЇ ОБ’ЄКТІВ ДОРОЖНЬОГО СЕРВІСУ: ПРОБЛЕМИ ТА ШЛЯХИ ВИРІШЕННЯ

Динамічний розвиток суспільних відносин, зокрема на транспорті, вимагає негайних та вчасних нормативно-правових удосконалень. Це необхідно перш за все для недопущення порушення правоохоронними органами Конституції та законів України в процесі правозастосовної діяльності. Досить часто судді через нормативну неврегульованість аспектів суспільних відносин застосовують наявні в законодавчій базі норми права, які за певних безпрецедентних обставин справи не підлягають застосуванню, хоча є, на перший погляд, правильними. Наявні прогалини в нормативно-правових актах порушують основоположні принципи відповідальності винуватих осіб, зокрема перестає діяти принцип «невідворотності покарання», що є началом формування в суспільстві нігілістичних настроїв, стереотипів аномії. У цій роботі розглянуто факти недотримання судами завдання провадження у справах про адміністративні правопорушення у сфері забезпечення безпеки дорожнього руху, головним із яких є недотримання вирішення справи чітко відповідно до закону, а також шляхи вирішення цієї проблеми. Проаналізувавши ситуації щодо відриву (пошкодження) заправного пістолета на автозаправній станції водіями транспортних засобів через життєві фактори (неуважність, квапливість та ін.), ми виявили вади в правозастосовній діяльності поліцейських, які на місці пригоди кваліфікують дії винуватця як дорожньо-транспортну пригоду. Після процесуального оформлення цього делікту матеріали адміністративної справи, за підвідомчістю, направляються на розгляд до суду першої інстанції, де судді, неправильно оперуючи правилами чинного законодавства, помилково застосовують норми матеріального права та порушують процесуальну норму. Наслідком цього є порушення основоположного принципу «верховенства права», положення якого закріплені в ст. 8 Конституції України.

REFORMING CIVIL PROCEDURAL LEGISLATION AND ITS IMPACT ON THE DEVELOPMENT OF LEGAL RELATIONS IN APPEAL PROCEEDINGS

The sociological aspect of relevance lies in highlighting the mechanism of the application of law by the courts of appeal, because the decisions and definitions of the courts of appeal are the subject of research by a wide range of subjects, from students of certain legal specialties to the highest bodies of state judicial power, in particular – the Supreme Court. Since an appeal is now a constitutional guarantee, and a narrowing of human rights is not allowed, an examination of the appeal mechanism is necessary to predict future consequences. The practical aspect of the relevance of the study consists in the analysis of quantitative and qualitative indicators of appeal proceedings, coverage of real data that reflect past trends and make it possible to predict the future situation. The general requirements inherent in all instances are put forward for the appeal consideration. We are talking about the requirements for the qualifications and appointment of judges, in accordance with the provisions of the Law of Ukraine “On the Judicial System and the Status of Judges”; independence and immunity of judges at any stage; requirements for evidence, the order of their examination and review; requirements for the legal personality of the parties, because the court protects the violated, contested and unrecognized rights, freedoms and interests of persons and the interests of the state, thus no one can file, including an appeal, if the decision of the court of first instance does not affect his rights, freedoms and interests. So, exploring this topic, it is necessary to perform such tasks as: to consider the right to an appeal review of the case through the prism of the guarantee of the constitutional human right to judicial protection and to reveal the concept of appeal proceedings; to reveal the essence of abuse of rights at the stage of appeal proceedings; consider the procedure and conditions for the opening of the appeal proceedings; describe the possibility of renewing the deadlines for appeal, the violation of which is due to restrictions imposed in connection with the quarantine established in order to prevent the spread of coronavirus disease (COVID-19); analyze the procedural procedure for the consideration of cases by the court of appeal in the context of the updated civil procedural legislation and characterize the powers of the court of appeal.