Court Practice Research Articles

Конституционный принцип свободы труда в чрезвычайных условиях: старые проблемы и новые вызовы

The purpose of this scientific article was to identify theoretical and practical problems that arise in the process of implementing the principle of freedom of work in a state of emergency, the presence of an emergency situation and the introduction of a high-alert regime. The task is to outline ways to eliminate contradictions in labor legislation and law enforcement practice. To achieve this goal, the scientific literature devoted to the problems of restricting the labor rights of citizens during the period of various emergency regimes, including the high-alert regime, has been studied. The empirical basis of the work was the materials of judicial practice of the Constitutional Court of the Russian Federation and courts of general jurisdiction in cases of transfer of employees to other jobs in accordance with parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation. The cases reviewed related to two periods – before and after the introduction of a high-alert regime in the country in connection with the COVID-19 coronavirus epidemic. An attempt has been made to trace changes in the approaches of judicial authorities to the grounds that employers use to transfer employees without their consent to another job. The author joins the opinion of a number of researchers who draw attention to the contradictory nature of the subordinate law-making of state authorities of the Russian Federation and its subjects aimed at countering the spread of coronavirus. The need to specify the powers of the President of the Russian Federation, executive authorities of the Russian Federation and its subjects in Article 5 of the Labor Code of the Russian Federation as a permanent norm in case of various kinds of crisis situations is supported. It is necessary to clarify at the legislative level the rights of employees, which may be restricted in the event of a state of emergency, the presence of an emergency situation or the establishment of a high-alert regime, to determine the limits of such restrictions. In conclusion, it is proposed to make specific changes to parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation to specify cases and situations where transfer to another job is permissible without the consent of the employee.

The usage of the «Rule of law» in the practice of the European Court of Human Rights and the civil procedure code of Ukraine

The usage of the «Rule of law» in the practice of the European Court of Human Rights and the civil procedure code of Ukraine

ПРОБЛЕМА РЕАЛІЗАЦІЇ ПРАВА НА ЗВЕРНЕННЯ ГРОМАДЯН УКРАЇНИ ДО ЄВРОПЕЙСЬКОГО СУДУ З ПРАВ ЛЮДИНИ

The article the article coversthe main theoretical and practical problems related toensuring the right of a citizen of Ukraine to appeal to the European Court of Human Rights. The right to judicial protection is considered as an integral component of the rule of law and an important feature of a legal democratic state. The author of the article emphasizes that the right to go to court cannot be exhausted by national judicial bodies, but provides for the possibility of protecting rights in international courts. In addition, the European Court of Human Rights is an integral part of the judicial system of Ukraine, as a member state of the Council of Europe. The author of the article notes that the procedure for a citizen of Ukraine to appeal to the European Court of Human Rights, although guaranteed by national legislation and a number of internationallegal acts, contains a number of shortcomings that may complicate the realization of the said right. Among such shortcomings, the following are noted: the presence of different approaches to the interpretation of individual rights and principles in the practice of the European Court of Human Rights and Ukrainian courts; duration of court procedures and inconsistency of procedural terms; lack of an effective mechanism for ensuring the execution of decisions of the European Court of Human Rights on the territory of Ukraine, etc. The problem of the lack of a legal culture of appeal to international courts and proper awareness of citizens in Ukraine is emphasized separately.

Afekciona vrednost stvari i osiguranje imovine

Determining the amount of compensation according to the value that this subject has for the damaged party, if it was damaged or destroyed by an intentional criminal act is based on 189(4) of the Law on Obligations. This represents one of the key exceptions from the general rule based on the objective understanding the civil culpability in our tort law. Although it enjoys a long tradition, its interpretation and application creates a series of dilemmas in the legal doctrine and practice of domestic courts. Among them, the key question is whether it is about a special base for measuring compensation for non-patrimonial damage or it is basis for special pretium affectionis as a way of measuring the amount of compensation for patrimonial damage, which carries a subjective connotation. Only a few scientific works in our doctrine of tort law have been devoted to this issue in fragments. Moreover, these problems have not been observed in the context of property insurance yet. Thus, the author tries to examine the ability of insurance the market to meet the needs of special user requests, when it comes the need to insure from theft and robbery not only valuable and rare things that has cultural and historical importance and collectibles, but also subjects to which the owners are particularly emotionally attached such as pet, personal correspondence, letters, and awards for various achievements or family photos

Review of court decisions under exceptional circumstances in the field of administrative law: analysis of the procedures and practice of the supreme court of Ukraine

Review of court decisions under exceptional circumstances in the field of administrative law: analysis of the procedures and practice of the supreme court of Ukraine

Правовое регулирование создание систем оповещения о чрезвычайных ситуациях на объектах транспортировки газа

In 2014, significant changes were made to the civil defense legislation which require Gazprom Group companies operating gas trunk lines, gas distributing plants, and gas compressor stations to create and maintain local emergency notification systems (LNS) in a state of immediate readiness. The objective of this study is to analyze the current legislation and the peculiarities of practical application of the LNS-related rules. The subject of the study is the social relations that arise in the course of inspections by the Ministry of Emergency Situations of Russia and the issuance of improvement notices to gas transmission organizations. The author reviews some controversial issues related to the persistent negative judicial practice in commercial courts and general jurisdiction courts for subsidiaries of Gazprom PJSC. The civil defense legislation of the CIS countries (the Republic of Belarus and Kazakhstan) is systematically reviewed. This article proposes amendments to the current legislation that would specify certain features establishing LNSs at class I and II HPFs.

Некоторые особенности решения имущественных и наследственных споров в горских словесных судах Кубанской и Терской областей в 1871–1918 гг.

The article studies some features of solving property and inheritance disputes in the mountain word courts of the Kuban and Terek regions in 1871–1918. The specifics of their activities are studied on the records and statistical materials of the Yekaterinodar, Maikop and Balalpashinsky mountain word courts (MWC) in the Kuban region and Khasav-Yurtovsky, Groznensky, Vedensky, Shatoevsky, Nalchik, Nazranovsky and in the Terek region. The models of decision-making on typologically similar disputes and conflicts and their forms of documenting them were characterized common for all MWC; the specifics of their traditional institutions of socio-normative culture and local peculiarities of dispute and conflict resolution were revealed. On the basis of the analysis of law enforcement practice of the mountain verbal courts, the list of types of civil disputes that they deal with is proposed. Interim measures applied by the verbal courts to enforce court decisions (arrest of the defendant’s property, sale of the debtor’s property from public tenders and auctions, etc.) are described. The grounds for termination of proceedings in civil cases have been identified. It was determined that pre-trial reconciliation of conflicting parties in civil and inheritance disputes was documented in the form of “amicable deals “amicable tales “amicable tales”. It was found that the final amount of material compensation (the main form of liability in the resolution of this category of disputes by the MWC) almost always consisted of two components: the cost of damage and the costs associated with the resolution of the dispute (the sum of all losses incurred by the injured party). The conclusion is made that among the positive effects of such activity was the consideration of regional and ethnic traditions in resolving disputes and conflicts, while the negative ones were the slowness of the MWC in making decisions, accumulation of unresolved cases, etc.

Pravni položaj Evropske centralne banke u savremenim društvenim prilikama

This paper analyzes the legal position of the European Central Bank (ECB) within the context of contemporary social conditions, focusing on the ECB's tendency to expand its competencies and the judicial evaluation of the current monetary legislation in the practice of the European Court of Justice (ECJ). In this sense, the paper analytically examines the concept and characteristics of monetary disputes, while exploring the ECB's contribution to democratic monetary governance through respect for the rule of law. The author pays special attention to the ECB's role in protecting human rights, specifically considering the trend towards a so-called "humane approach" to monetary management, which has significant consequences for the preservation of monetary stability as a public good. Using the dogmatic, comparative, and axiological methods, the author aims to highlight the main dilemmas in this area from the perspective of de lege lata and possibly offer certain guidelines for de lege ferenda.

Банкротство энергетических компаний в России и Китае: правовое регулирование

This article compares Russian and Chinese legislation on the bankruptcy of energy companies employing a comparative analysis method, identifies similarities and differences in legal regulation. The theoretical relevance of this work is to identify the main legislative approaches to the legal regulation of bankruptcy of energy companies in Russia and China, thereby providing a foundation for further research on this issue. The practical relevance of this work is the possible use of the best practices of legal regulation of bankruptcy relations of energy companies in Russia and China. Despite the significant influence of state regulation on the economy, both in Russia and China, bankruptcy legislation generally corresponds in its content to market standards of bankruptcy regulation. In terms of bankruptcy regulation of energy companies, Russian bankruptcy legislation, unlike Chinese legislation, has more specific features. Chinese bankruptcy legislation is supplemented by the decisions of the State Council of the People’s Republic of China and the practice of higher courts, as well as by widely used conciliation procedures.

Settlement agreement as a way of solving land and property disputes: some aspects of law enforcement practice of courts of general jurisdiction

Settlement agreement as a way of solving land and property disputes: some aspects of law enforcement practice of courts of general jurisdiction

Procedural terms in the law enforcement practice of courts of general jurisdiction when resolving land and property disputes

Procedural terms in the law enforcement practice of courts of general jurisdiction when resolving land and property disputes

The fate of an easement in the transformation of a dominant land parcel

The article is dedicated to the detailed analysis of the Ruling of the Third Cassation Court of General Jurisdiction dated February 16, 2022, No. 88-3377/2022, as well as several additional acts of courts related to this Ruling. In this case courts discuss the essence of an easement, real nature of an easement, fate of an easement in the transformation of a dominant land parcel or a servient land parcel, protection of an easement, termination of an easement. The author of the article critically evaluates these reasonings, referring to the norms of operative Russian and foreign legislation, current courts practice, doctrinal sources, historical materials, projects for reforming Russian legislation. The case under discussion is remarkable because several courts in support of their positions refer among others to the Model Act “On Limited Real Rights”, approved by the Inter-Parliamentary Assembly of the CIS Member States on November 27, 2015. The author of the article states the question: is it permissible to use the Model Act to resolve a particular case on the territory of the Russian Federation? And the author of the article gives the positive answer to the question, as far as the courts do not apply the Model Act directly, but resolve the case based on the general principles and meaning of civil law, requirements of good faith, reasonableness, fairness. Therefore, the Model Act is applied by the courts as the act that reflects such principles and meaning, for this reason the reference to the Model Act has a completely acceptable and even welcomed illustrative character. The analyzed case also confirms the idea that the modern regulation of easement relations in Russia indicates the existence of numerous theoretical and practical problems in this area. The multiple recommitment of the case to the appellate court, enormous controversy about the fate of the case in the legal community — are clear confirmation of this.

АССОЦИАЦИИ ТЕРРИТОРИАЛЬНОГО ОБЩЕСТВЕННОГО САМОУПРАВЛЕНИЯ: ПРАВОВЫЕ ОСНОВЫ ДЕЯТЕЛЬНОСТИ И ПОТЕНЦИАЛ ОБЩЕСТВЕННОЙ КОНСОЛИДАЦИИ ДЛЯ РАЗВИТИЯ ТЕРРИТОРИЙ

The article discusses the legal nature of associations of territorial public self-government and summarizes the practice of their organization and activity; examines the interaction of ssociations, public authorities, and local self-government authorities regarding the federal districts; identifies regional features of the establishment and activity of territorial public self-government associations; studies and considers legal acts regulating the activities of associations and their statutory documents, as well as directions and types of associations’ activities; and studies the court practice on disputes with associations. Territorial public self-govern ment associations play an important role in consolidating regional and local communities and involving them in solving problems of territorial development. The activities of regional territorial public self-government associations are systematized. The general approaches of territorial public self-government associations to the issues of community involvement in solving territorial development problems are presented, some of which can be used in model legal acts.

Provision of Dental Care: Certain Aspects of Court Practice Significant for Medical Law

Provision of Dental Care: Certain Aspects of Court Practice Significant for Medical Law

Representative function of the prosecutor’s office: the current concept of court practice

Representative function of the prosecutor’s office: the current concept of court practice

УПРАВЛІННЯ ПОДАТКОВИМИ РИЗИКАМИ ПІДПРИЄМСТВА ЧЕРЕЗ ІНСТРУМЕНТ СТРАХУВАННЯ

The introduction of the newest tax risk management approaches has become more and more critical for Ukrainian enterprises. This paper analyzes and summarizes international experience in tax risk management and defines trends in this area. The author presents several recommendations for improving fiscal relations using an insurance coverage mechanism. The article also emphasizes the changes in tax relations determined by the development of information technology, as well as new opportunities and challenges associated with these processes. The methods used worldwide to manage these processes are analyzed in order not only to mitigate tax risks but also to implement necessary changes required to make tax function more efficient in a company. Given the complexity of tax regulations and the development of new instruments for managing tax risks, the author proposes to consider and put into practice the US experience, where, as a way of providing transparency and consistency in accounting for income tax liabilities, Interpretation No. 48 "Accounting for Uncertainty in Income Taxes" (FIN 48) was adopted in 2006 by the FASB. Practical foreign experience of insurance coverage for tax risks, uncertain tax positions, and the potential development of such insurance in Ukraine are outlined. It is noted that the essence of tax risk insurance is to cover possible financial losses incurred by a business entity as a result of changes in tax legislation or an unformed approach of court practice. It is determined that there are certain inconsistencies in the sectoral legislation regarding the absence of rules governing tax risk insurance. At present, the national legislation does not define tax risk insurance as an independent class of insurance (or its component), which reduces its effectiveness. The development of tax risk insurance in Ukraine could become an effective tool to help minimize business risks of monetary liabilities to the budget. The authors argue that there is a need for high-quality transformation in the transparency of business, accounting, financial, and tax reporting within relationships with tax authorities. In addition, it is determined how the implementation of the Standard Audit File (SAF-T) could affect the taxpayer's cooperation with the government and insurers in assessing tax risks.

European Union civil liability frameworks in the age of artificial intelligence: Assessing current regimes and future prospects

This study intends to evaluate the suitability of the EU’s liability regimes in solving AI-related concerns by carefully examining the current legal environment. It also examines the consequences and viability of using these frameworks to consider the special features of AI technology. Furthermore, the article offers insight into the growing nature of AI liability inside the EU and its potential by thoroughly examining current regulations and evaluating the suggested revisions and proposals for prospects. Some of the questions that are the focus of the attention in the article are the burden of proof and its allocation in cases involving AI-caused damages, the standard of proof required to establish liability in AI-related cases, whether a preponderance of evidence, clear and convincing evidence, or a higher standard should be applied in different scenarios and the difficulties in establishing causation in AI-related damages. The method used in this paper will consist of conducting a comparative analysis based on the hypothesis (bearing in mind that there is no established court practice in the EU with regard to this matter) of how different jurisdictions in the EU handle liability and proof standards in AI-related cases, highlighting of any emerging trends or most suitable doctrines and practices. These questions certainly open a discussion of the potential future developments in AI liability law, considering the rapid advancements in AI technology and how legal standards might need to adapt as AI systems become more sophisticated. By focusing on these practical aspects of AI liability, this research can offer valuable insights into how the legal system can effectively address the challenges posed by AI technology and set the legal bases for fair and just outcomes for all parties involved.

Судьба правовых позиций ЕСПЧ, используемых в уголовном праве

The relevance of the study is determined by the fact that after Russia's denunciation of the European Convention on Human Rights (ECHR), changes in the legislation of the Russian Federation (2020-2023), there are almost no studies in the legal literature devoted to analysing the issues that have arisen, especially in the field of protection of fundamental human rights and freedoms in the criminal sphere. Moreover, mostly with pessimistic forecasts, without sufficient substantiation. In this regard, the purpose of the study is to identify the purpose of the decisions of the European Court of Human Rights (ECHR) after the amendments to the Constitution of the Russian Federation in 2020 and denunciation of the ECHR (2022). The subject of the study is the Constitution of the Russian Federation, conventions signed by Russia in the field of protection of human rights and freedoms, decisions of the Constitutional, Supreme Courts of the Russian Federation, reviews of the Supreme Court of the Russian Federation, practice of interstate bodies (2017-2023), studies of representatives of different branches of law on the issues under consideration. The main methods of research are: observation, legal hermeneutics, comparative-legal, systemic. In the process of research the following results were obtained and conclusions were drawn. 1. The practice of the ECtHR in the interpretation of the treaty, which corresponds or partially corresponds to the Constitution of the Russian Federation, is recognised and used by the national legal system of Russia at all levels to justify the provisions of the national legislation, in law enforcement until 2022. So, it should be recognised in the meaning of the subsequent practice of treaty application, which should be taken into account, along with the context of the treaty. 2 The exclusion in the legislative novelties of the Russian Federation of the law enforcer's obligation to implement the judgments of the ECtHR, which entered into force after 15 March 2022, does not mean a ban on taking into account the legal positions of the ECtHR in everyday court practice. Because: treaty implementation includes not only the execution of ECtHR judgments, but also the consideration of the legal positions of the ECtHR when courts consider similar cases; many provisions of international human rights treaties coincide with each other and the Constitution of the Russian Federation; the concepts developed by the ECtHR are also used by other interstate bodies. 3. The practice of UN committees must be considered within the meaning of Article 31(3)(b) of the Convention on the Law of Treaties and must therefore be taken into account along with the context of the treaty. 4. Decisions of interstate bodies, including the decisions of UN committees, should be assessed by the law enforcer for the possibility of their recognition as new circumstances, the emergence of which may become the basis for revision of judicial acts that have entered into legal force. Thus, the practice of the ECtHR recognised by the national legal system, along with decisions of other interstate bodies, should be used by legislators and law enforcers even after the denunciation of the ECHR. Further research is needed to improve the mechanism of implementation of decisions of interstate bodies in the Russian legal system.

Court-Packing Accomplished – The Changing Jurisprudence of a Subordinate Constitutional Court

The worldwide decline in democracy poses a major challenge to the independence of constitutional courts, which are the guardians of constitutionalism and the rule of law. The international literature on constitutional adjudication is therefore understandably concerned with how judicial independence is undermined in different types of authoritarian regimes. However, less attention has been paid to how the practice of these courts evolves when they are directly or indirectly controlled by the government. This article examines how the practices of the Hungarian Constitutional Court changed following the successful court-packing by its government, which exercised its constitution-making parliamentary majority to subvert the Court, which was once one of the most activist constitutional courts in Europe. In this case, political influence was fullyexercised; this study shows how the Constitutional Court, in order to maintain a semblance of independence, uses several different methods to uphold the government’s will. The Hungarian example may be instructive as it illustrates where the dismantling of judicial independence can lead.

Особливості грошового забезпечення військовослужбовців і додаткової винагороди в період дії воєнного стану в Україні

This paper intends to determine and systematize the basis, procedure, and conditions for accrual and financial compensation, as well as extra compensation for military personnel during martial law. The methodological basis of the research is a system of general scientific and special methods of scientific knowledge, namely: dialectical, formal-logical, systemic-structural, and formal-dogmatic. The legal regulation of financial support and extra compensation for military personnel in Ukraine contains numerous legislative and by law norms. The lasting changes in the legislation, the development of scientific opinion regarding financial support, and the escalation of the war in Ukraine require the systematization of the grounds, procedure, and conditions for accrual and financial compensation, as well as extra compensation for military personnel during martial law. As a result of the study, the author’s own vision regarding the definition of the concept of financial support for military personnel is given. The main grounds, procedure, and conditions for accrual and financial compensation, as well as extra compensation for military personnel during martial law, have been established and systematized. A circle of controversial issues related to financial support and extra compensation, for the resolution of which the military personnel turns to the court, has been highlighted. The conclusions of the scientific research are based on an in-depth analysis of the current Ukrainian legislation, court practice and scientific literature, that reveal the issue on financial support and extra compensation for the military personnel. The results of the study can be used in the future for law-making, research activities of forensic institutions, practical activities, and other purposes.